Opinion
Record No. 1461-92-3
April 20, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Dale W. Webb (Gentry, Locke, Rakes Moore, on brief), for appellants.
No brief or argument for appellee.
Present: Judges Barrow, Moon and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal is from a decision of the Workers' Compensation Commission finding that the employee's carpal tunnel syndrome was a compensable occupational disease that resulted directly from her employment. We hold that credible evidence supports this finding and affirm the decision of the commission.
The facts of this case are fully described in the deputy commissioner's opinion and that of the commission. The employee suffers from carpal tunnel syndrome in her right hand. The commission found that this disease was an "occupational disease" within the meaning of Code § 65.2-400 and awarded her medical benefits.
Carpal tunnel syndrome can be classified as an "occupational disease" as long as the six requirements of Code § 65.2-400 are met. Holly Farms Foods, Inc. v. Carter, ___ Va. App. ___, ___, 422 S.E.2d 165, 169 (1992); see also Merillat Industries v. Parks, ___ Va. App. ___, ___, 421 S.E.2d 867, 871 (1992). In this case, the deputy commissioner and the full commission found that the employee's carpal tunnel syndrome was an "occupational disease" meeting all six requirements of Code § 65.2-400. The deputy commissioner also expressly rejected the employer's contention that the employee's carpal tunnel syndrome was an "ordinary disease of life," and the full commission affirmed this finding as well.
Code § 65.2-400 provides:
A. As used in this title, unless the context clearly indicates otherwise, the term "occupational disease" means a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.
B. A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind, upon consideration of all the circumstances:
1. A direct causal connection between the conditions under which work is performed and the occupational disease;
2. It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
3. It can be fairly traced to the employment as the proximate cause;
4. It is neither a disease to which an employee may have had substantial exposure outside of the employment, nor any condition of the neck, back or spinal column;
5. It is incidental to the character of the business and not independent of the relation of employer and employee; and
6. It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.
In reaching this conclusion, the commission relied on the original diagnosis of Dr. John S. Mahoney and the testimony of the employee and her supervisor concerning the work activity that she performed in her regular employment and in her second job at Memorial Hospital. In her regular employment as a secretary, she "regularly typed six to seven hours a day." In her second job, she worked each weekend as a "computer troubleshooter," which involved keyboard work on a computer approximately fifteen percent of her time on that job. The commission gave "no probative weight" to Dr. Mahoney's later opinion that it was just as likely that the employee's disease was a result of her secondary employment with the hospital. Noting that the employee's duties at her second job were not described in Dr. Mahoney's second opinion letter, the commission observed that "[t]he failure of counsel to make the [questions asked of Dr. Mahoney] part of the record seriously detracts from any value which might be assessed to [Dr. Mahoney's revised opinion]."
"Whether a disease is causally related to the employment and not causally related to other factors is . . . a finding of fact." Ross Laboratories v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991). Where internal conflict exists in the opinion of a medical expert, the commission may consider the other medical evidence in the record "and the lay testimony of the claimant" to resolve that conflict. Island Creek Coal Co. v. Miller, 223 Va. 645, 649, 292 S.E.2d 328, 331 (1982) (emphasis added). We hold that the commission's findings of fact concerning the cause of the employee's carpal tunnel syndrome are supported by credible evidence and are, therefore, binding upon this court. Code § 65.2-706. Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979);Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592 (1985). For these reasons, the decision of the commission is affirmed.
Affirmed.
I respectfully dissent because, in my opinion, credible evidence does not support the award.
The commission relied upon Dr. Mahoney's report to find with reasonable medical certainty that claimant's carpal tunnel syndrome arose out of her employment and did not result from substantial exposure outside of her employment. Dr. Mahoney also wrote a second report that was disregarded by the commission. In the second report, Dr. Mahoney stated that he did not know that claimant was working a second job as a key punch operator that involved repetitive use of her right hand. Thus, because the physician's opinion upon which the commission relied was based upon an incomplete history, I cannot agree that the award is supported by credible evidence. Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15, 16-17 (1985). Claimant began the second job in 1989 after having worked more than fifteen years without any problem at her primary job as a secretary. Her carpal tunnel symptoms started after her employment on the second job.
The commission refused to consider Dr. Mahoney's second report because it was in response to letters, not made a part of the record, that were sent to Dr. Mahoney by employer's counsel. In refusing to consider the report, the commission assumed that the letters from employer's counsel may have contained some false information that may have tainted Dr. Mahoney's second report. Even so, Dr. Mahoney made a categorical statement that he did not know that claimant had the second job. The fact that claimant had the second job is not in dispute. Thus, no matter what other "false information" may have been in the employer's attorney's letters, the information that claimant, in fact, had a second job was not false. Thus, no false information prompted the categorical statement by Dr. Mahoney that when he formed his opinion he did not know about the second job.
The commission has sought to minimize the potential effects of the second job by giving claimant full benefit of her description of her activities on the second job. Nevertheless, the claimant's testimony was that the second job required her each weekend to key punch with her right hand for a total of 2.4 hours (15% of 16 hours). Her supervisor estimated claimant's key punching on the weekend to be six to eight hours. Whether 2.4 hours every weekend of key punch operation was substantial enough outside exposure to be a causal factor in the carpal tunnel syndrome condition of the right hand, does not lie within my expertise. The commission, however, does not cite to any authority for its assumption that the weekend key punch operation was not a causal factor. I believe the issue whether the second job was a factor in the pathology of the carpal tunnel disease is a medical question that must be addressed by expert medical opinion.
Claimant had the burden of proof. Her proof depends upon an opinion from a physician without knowledge of claimant's second job. Therefore, in my opinion, the award is not supported by credible evidence and should be reversed. Id.