Opinion
Record No. 2067-92-4
April 27, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Benjamin J. Trichilo; Lewis, Trichilo, Bancroft McGavin, on briefs), for appellants.
(William W. Sharp; John G. Cadden, 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.
Pepsi-Cola Company ("Pepsi") contends that the commission erred in (1) finding that William E. Tanner, Jr. met his burden of proving either a compensable occupational disease or ordinary disease of life; and (2) applying an incorrect legal standard in entering the award for continuing disability benefits.
Tanner worked for Pepsi for approximately one and one-half years as a route salesman. His job duties regularly required him to deliver cases of soft drinks to various retail stores. He was required to unload 200 to 300 cases per day at the various delivery spots. Each case weighed approximately forty to fifty pounds. This work was described by Tanner and other witnesses as strenuous.
After the cases were unloaded and taken into the store, Tanner was required to break apart the various packs of drinks. Beginning in December 1990, the twelve-pack cartons were bound together with plastic tape. In order to separate them, Tanner "snapped" them apart with his hands and arms. Prior to this time, the cartons were made of cardboard. Shortly after he began having to snap the twelve-pack cartons apart, Tanner noticed the onset of a burning sensation in his right arm. He testified that he reported this pain to his supervisor, Jim Kauffman, in December 1990. Kauffman suggested that Tanner use a knife to cut the tape instead of snapping the cartons apart. Tanner followed these instructions and the pain subsided.
In May 1991, Tanner began to experience the same severe burning sensation in his right elbow that he had experienced in December 1990. This pain occurred whenever he had to grab cases or pull or push objects. Tanner reported this condition to Pepsi on or about May 20, 1991. On that same date, he went to the Warren Hospital Emergency Room for treatment. He was referred to Dr. James E. Favareau.
In his May 23, 1991 office notes, Dr. Favareau noted that Tanner had sustained an insidious onset of right elbow pain approximately four months earlier. Dr. Favareau stated that Tanner's condition seemed to be better when he was off work and seemed to be aggravated by activities on the job as a soft drink deliverer. Dr. Favareau noted that Tanner was involved in a high intensity, physically demanding job. Dr. Favareau diagnosed Tanner's condition as a "chronic right common extensor tendon overload syndrome, the so-called 'tennis elbow.'" Tanner's arm was immobilized with a cast and complete rest of the forearm was ordered. He was not to work.
On June 3, 1991, Dr. Favareau stated in his office notes that:
It is my opinion that [Tanner's] symptoms are caused by an overload syndrome in the work place and that with no apparent nonwork activities contributing whatsoever to the etiology and persistence of his symptoms.
Dr. Favareau noted he would reassess Tanner's condition in one month and ordered that he not work unless he could do left-handed work and not lift more than ten pounds. In his attending physician's report, dated June 5, 1991, Dr. Favareau stated that Tanner's diagnosed condition of right tennis elbow was due to the repetitive use of his arms on the job. On July 3, 1991, Dr. Favareau referred Tanner to physical therapy. On August 5, 1991, Dr. Favareau discontinued Tanner's physical therapy and cleared him for light duty with a maximum lifting restriction of twenty pounds for the right upper extremity.
Tanner testified that he experienced no discomfort in his arm while working part-time in his jewelry repair/gem cutting business and he denied that he took part in any other physical activities which might have affected his arm.
I.
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. ___, ___, 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, the record is devoid of any suggestion that the claimant's condition resulted from exposure outside of his employment, we need not look beyond the four corners of Code § 65.1-46 (now Code § 65.2-400).
In its opinion, the full commission reviewed the history of this case and found that the claimant's evidence sufficiently met the requirements of Code § 65.1-46 (now Code § 65.2-400). The commission also found that there was no evidence that Tanner's condition is an ordinary disease of life. The full commission stated:
The claimant's testimony and Dr. Favareau's medical reports establish a direct causal connection between the conditions under which the claimant's work was performed and the occupational disease. The same evidence establishes that the overload syndrome followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment. The condition can be fairly traced to the employment as the proximate cause based on the same evidence. There is insufficient evidence that the condition resulted from a hazard through which the claimant was equally exposed outside his employment. . . . [T]he condition is incidental to the character of the business. . . . [Tanner's] condition had its origin as a risk connected with the employment and flowed from it as a natural consequence.
"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. Nothing in the evidence undermines the commission's conclusion that Tanner's condition flowed from his employment as a natural consequence. Dr. Favareau's records and Tanner's testimony provide credible evidence to support the commission's finding that the six factors set out in Code § 65.1-46 (now Code § 65.2-400), were met by a preponderance of the evidence.
II.
With regard to the disability issue, we find that the medical records available to the full commission when it rendered its opinion do not provide evidence that Tanner was ever unconditionally released to full duty. A medical record wherein a doctor states that a claimart is anticipated to be released to full duty at some time in the future after a re-examination is insufficient to support a finding that the claimant was, in fact, able to return to full duty on that future date. Accordingly, the commission did not err in awarding continuing disability benefits commencing October 5, 1991.
For the reasons stated, the commission's decision is affirmed.
Affirmed.