Opinion
Record No. 2526-92-4
August 3, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Deborah A. Farson; Jordan, Coyne, Savits Lopata, on brief), for appellants.
(Craig A. Brown; Ashcraft Gerel, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Giant Food, Inc. contends that the commission erred in finding that (1) Lizzie R. Moore met her burden of proving a compensable occupational disease or, in the alternative, a compensable ordinary disease of life; and (2) she made reasonable efforts to market her residual work capacity.
I.
Moore has worked for Giant for eighteen years as a bakery clerk. Her job requires that she scan "mark downs," write the new price on items, scan and restack cakes, donuts, bread and pies which are loaded on carts, place individual bakery items onto display trays, place the display trays into glass cases, and cut cheesecakes into eight slices and manually wrap each slice in cellophane. She wraps eighty pieces of cheesecake per day, and testified that she handles as many as 1,000 food items per day. She is also required to clean the display cases with glass cleaner.
Moore testified that she does not have any hobbies or activities outside of her job which require repetitive use of her hands. She began to experience pain in her hands in October of 1990. The pain got worse and in November of 1990 she sought treatment from her family physician, Dr. Edna Franco. Dr. Franco diagnosed Moore as suffering from carpal tunnel syndrome in both hands and advised her to change to lighter work. Moore testified that as long as she was not working her hands did not bother her.
Moore was then treated by Dr. Francisco Ferrez, who noted on February 4, 1991 that Moore should consider relocation of her work place. Moore underwent right carpal tunnel release surgery by Dr. David Romness on March 21, 1991.
On April 7, 1992, in response to a letter from Moore's counsel, Dr. Romness opined that it was likely that Moore's carpal tunnel was aggravated by the repetitive nature of her job. In a further clarification of his opinion, in an April 29, 1992 letter to Moore's counsel, Dr. Romness stated that he was not aware of any pre-existing carpal tunnel syndrome in Moore and that the repetitive nature of her work as a bakery clerk was the most probable cause of her disease. He went on to state that he believed that her employment was the major contributing factor to her development of the disease, although there was no way he could say it was the sole cause.
Dr. Vincent Giustolisi conducted an independent medical examination of Moore on January 13, 1992, ten months following her surgery. He opined that her carpal tunnel syndrome was not related to her employment. He noted that in his discussion with Moore he learned that she was not doing that much repetitive activity in her job.
In order for a disease to be compensable under Code § 65.1-46 (now Code § 65.2-400), each of six conditions must be met, as set out by this Court in Merillat Industries, Inc. v. Parks, 15 Va. App. ___,___ n. 2, 421 S.E.2d 867, 868 n. 2 (1992). A 1986 amendment to Code § 65.1-46(4) (now Code § 65.2-400(B) (4)), requires a claimant to meet a more rigorous standard of proof, as set out in Code § 65.1-46.1 (now Code § 65.2-401), where a claimant's occupational disease may have resulted from substantial exposure outside of the employment. However, where, as here, there is no suggestion in the record that Moore's condition resulted from exposure outside of her employment, we need not look beyond the four corners of Code § 65.1-46 (now Code § 65.2-400). Accordingly, we find that the commission properly found that Moore need only meet the requirements of Code § 65.2-400.
In its November 13, 1992 opinion, the full commission found that "Dr. Ferrez, the neurosurgeon, and Dr. Romness, the orthopedist, [had] sufficiently related the claimant's problem to her repetitive work activity" for her to meet the six requirements under Code § 65.1-46 (now Code § 65.2-400) by a preponderance of the evidence.
The full commission also found that "even if the claimant were required to meet the higher burden of proof set forth in § 65.1-47.1 [sic] (now § 65.2-402 [sic]) of the Code, the findings of Dr. Romness and Dr. Ferrez are clear and convincing with respect to her work being the primary cause of her carpal tunnel syndrome." We decline to address this issue, since we find that the record supports the commission's finding that Moore was only required to meet the burden set out in Code § 65.1-46 (now Code § 65.2-400).
"Whether a disease is causally related to the employment and not causally related to other factors is . . . a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988) (citation omitted). When there is credible evidence to support it, such a finding is "conclusive and binding" on this Court. Id. Moreover, "[a] question raised by conflicting medical opinion is a question of fact."Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986) (citations omitted).
Nothing in the evidence undermines the commission's conclusion that Moore's condition met the requirements of Code § 65.2-400 as a compensable occupational disease. The reports of Drs. Ferrez and Romness, as well as Moore's testimony, provide credible evidence to support the commission's decision, and it will not be disturbed on appeal. The commission was entitled to accept the opinions of Drs. Ferrez and Romness over that of Dr. Giustolisi. Dr. Giustolisi's opinion was discounted by the commission because his history of the limited repetitive work done by Moore was contrary to the unrebutted testimony of Moore at the hearing.
II.
The commission found that Moore made a reasonable effort to market her remaining work capacity after Dr. Romness set up work restrictions. The record reveals that Moore, who has a tenth grade education and has worked as a bakery clerk for eighteen years, filed applications for employment with several employers, made phone calls to other employers, and consulted the newspaper on a daily basis. She also visited the Virginia Department of Rehabilitative Services to seek assistance.
In examining the factors as set out by this Court in National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989), we find that, when the evidence is viewed in light of Moore's physical disabilities, age, limited education and limited work experience, her efforts to find suitable employment support the commission's finding that she made a reasonable effort to market her residual work capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.