Opinion
Record No. 0141-92-1
December 1, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Ingrid E. Olson (Karen M. Rye, on brief), for appellant.
William L. Dudley, Jr. (Lawrence A. Dunn; Knight, Dudley, Dezern Clarke, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
In this appeal from a decision of the Virginia Workers' Compensation Commission (commission), Glory Rich (claimant) asserts that she contracted a work-related occupational disease while in the employ of Perdue Farms, Inc. Claimant alleges that the commission erred when it held that the record failed to show communication of an occupational disease, and further held that the evidence was insufficient to prove that her condition resulted from her employment.
Claimant first argues that the commission erred when it held "that claimant did not prove a communication of her occupational disease." That assertion is based on the following sentence contained in the commission's opinion:
Inasmuch as none of the medical reports make a causal connection, there has been no communication to the claimant of an occupational disease (emphasis added).
An occupational disease is not compensable until a diagnosis of such has been communicated to the employee. Island Creek Coal Company v. Breeding, 6 Va. App. 1, 9, 365 S.E.2d 782, 787 (1988). In the case before us, the commission reviewed the medical evidence and concluded that it did not support claimant's assertion that the doctors had advised her that the condition from which she suffered was caused by her work activity. In support of her argument related to "communication," claimant relies on cases dealing with time limitations for filing claims for occupational diseases. Her reliance on those cases is misplaced. The sentence in the commission's opinion referred to by claimant is in response to the holding of this Court in Breeding. It is causation to which the commission here referred, not the time limitation considered in the opinions relied on by claimant.
The sole issue for review in this appeal is the same as that stated by the commission in its opinion, to-wit:
The issue presented in this Review is whether the claimant's evidence establishes an occupational disease which affects her right arm and hand.
The commission found that claimant failed to prove by a preponderance of the evidence that she suffers from a condition caused by her employment. The record supports that decision.
Where the commission's findings as to questions of fact are based on credible evidence, they are conclusive and binding on this Court. Code § 65.2-706 (formerly Code § 65.1-98); Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607 (1981); Fairfax Hospital v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980). The fact that contrary evidence may be in the record is of no consequence if there is credible evidence to support the commission's findings. Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). In determining whether credible evidence supports the commission's findings, we are required to view the evidence in the light most favorable to the commission's holding. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"An ordinary disease of life to which the general public is exposed outside of the employment may be treated as an occupational disease for purposes of [the Workers' Compensation] Act if it is established by clear and convincing evidence, to a reasonable medical certainty, that it arose out of and in the course of employment as provided in § 65.1-46 [now § 65.2-400] with respect to occupational diseases and did not result from causes outside of the employment."Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 221, 372 S.E.2d 411, 414-15 (1988) (footnote omitted). The commission held that claimant failed to meet her burden to prove that she suffers from an occupational disease causally related to her work activity. To meet her burden, claimant is required to produce evidence to a reasonable medical certainty that the disease arose out of and in the course of her employment. Id. at 223, 372 S.E.2d at 415-16. If the expert medical witnesses do not provide evidence that it is at least more probable than not that the disease arose out of and in the course of employment, compensation must be denied. Id. at 224, 372 S.E.2d at 416.
Here, in January 1989, Dr. Edward S. White first saw claimant and diagnosed her condition as bursitis in the right shoulder. Dr. White referred claimant to Dr. David H. Bristow, who first saw her on January 20, 1989 and diagnosed the cause of claimant's pain to be "related to inactivity with arthritis of the AC joint." Dr. Bristow again saw her in February and March 1989, but claimant failed to return for follow-up treatments suggested by Dr. Bristow.
On July 25, 1989, claimant returned to Dr. White who diagnosed claimant as suffering from tendonitis. In August 1989, he referred her back to Dr. Bristow. Dr. Bristow's notes of August 6, 1989 reflected that claimant then complained of wrist pain and, on September 25, 1989, his notes disclosed:
The pt. is showing episodic overuse tendonitis in the right upper extremity involving the wrist joint, the shoulder joint and the tendons around those two joints. The symptoms are episodic and related to situations of overuse and then they disappear.
In December 1989, Dr. Bristow again saw claimant and found by x-ray of claimant's cervical spine "an enlarged transverse process of C-7" which he opined may be contributing to her symptoms. He recommended that claimant see Dr. Robert M. Paschall who, in December 1989, noted an impression that back pain complained of by claimant probably was "an overuse syndrome of her right upper extremity" and suggested further nerve conduction studies to rule out "possible branch compression in the radial distribution on the right side." On February 20, 1990, Dr. Paschall wrote that claimant was having symptoms in her left hand "even though she is not doing anything with it."
In all the medical observations, neither doctor used any language that could be considered as clearly and convincingly establishing that claimant was suffering from an occupational disease that arose out of and in the course of her employment with this employer.
For the reasons stated, the decision of the commission is affirmed.
Affirmed.