Opinion
Record No. 1662-93-1
Decided: October 11, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Palmer S. Rutherford, Jr. (Willcox Savage, P.C., on brief), for appellants.
Robert J. Macbeth, Jr. (Rutter Montagna, on brief), for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from the commission's decision that Michael Roesen suffers from a compensable occupational disease, Westar Engineering Corporation contends (1) that Roesen's condition does not qualify as an occupational disease under Code Sections 65.2-400 and -401, (2) that the commission's finding that Roesen received his first communication of a diagnosis of occupational carpal tunnel disease on January 31, 1992 is not supported by credible evidence, and (3) that the applicable statute of limitations bars Roesen's claim.
In 1983, because he was experiencing problems with his hands and wrists, Roesen sought medical treatment from Dr. Paul N. Krop. On April 25, 1983, Dr. Krop reported that Roesen:
has bilateral hand and wrist pain and numbness . . . primarily over the media (sic) nerve distribution. . . . I have asked [Mr. Roesen] to continue to consider changing his work because I feel that for the long run he will have significant problems from both areas. I have recommended to him that he use Futuro wrist splints and certainly wear these all night every night and possibly even at work . . . I will see [Mr. Roesen] again at any time, especially if he is not having improvement in the carpal tunnel symptoms which I feel could become quite worry some [sic].
Dr. Krop also noted carpal tunnel syndrome in his September 30, 1983 and May, 1985 medical reports. However, at this time, Dr. Krop could not "unequivocally say [Roesen's condition] was caused by work."
In August, 1985, Dr. Krop's associate, Dr. Morina, noted that Roesen had "had tingling in the right hand for several years now. This is exacerbated by working and he has to rest his hand between using the gun to get the tingling to leave the hand." Dr. Morina injected Roesen's right carpal canal. Following an August 26, 1985 checkup, Dr. Krop noted that the injection had relieved Roesen's symptoms.
In November, 1991, Roesen was employed by Westar as a drywall mechanic. His duties included using an industrial screw gun, a ram set, and a hilty gun. The screw gun operated at 4,000 revolutions per minute and vibrated against the palm of the user's hand. Roesen stated that he used the screw gun and the hilty gun eight hours a day. When he began work for Westar, he was not experiencing tingling or numbness. However, within a week these symptoms arose, and he returned to Dr. Krop on December 19, 1991. Dr. Krop diagnosed carpal tunnel syndrome. On January 31, 1992, Dr. Krop performed a follow-up on Roesen and noted, for the first time, that the carpal tunnel syndrome ". . . is a result of [Roesen's] work. There are no other factors I can detect in his history that would be primary causes of carpal tunnel syndrome which is relatively less frequent in males than females."
At the hearing before the deputy commissioner, Roesen acknowledged tingling in his hand in 1985. He testified that this condition returned when he started working in drywall again for Westar in 1991. He stated that Dr. Krop did not communicate the diagnosis of his carpal tunnel problems in 1983 and 1985 as an occupational disease or as caused by his work.
On review, the full commission found that the evidence proved the first communication of Roesen's occupational disease occurred on January 31, 1992, and that the evidence proved an occupational disease. The evidence supports those findings.
The "injury by accident" date of an occupational disease is the date of the first communication of the diagnosis of that occupational disease to the employee. Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 10, 365 S.E.2d 782, 787 (1988). Contrary to Westar's claim, "[a]n employee has no right to claim compensation for an occupational disease until he receives a communication of a diagnosis."
Although Dr. Krop earlier diagnosed Roesen with carpal tunnel syndrome, the record does not establish that he communicated that diagnosis as an occupational disease to Roesen. The first clear evidence of communication of an occupational disease was not made until January 31, 1992. Under this Court's holding in Island Creek, even diagnosis of right carpal tunnel syndrome, without communication that work caused the condition, would not constitute notice to Roesen that he suffered from an occupational disease. Thus, Roesen's filing of his claim on June 25, 1992 falls well within the applicable two year statute of limitation period.
Westar contends the evidence proves that Roesen's current condition is simply an aggravation of a pre-existing condition which is not compensable as an occupational disease. We disagree. The commission found that Roesen's carpal tunnel syndrome was caused directly by his use of hand tools and followed naturally from the nature of his work with Westar. In 1985, Dr. Morina successfully treated Roesen for his carpal tunnel syndrome. Not until later, when he operated mechanical devices with strong vibration qualities, did Roesen suffer from his current carpal tunnel syndrome. The commission's findings that Roesen's condition was caused directly by his work and was not an aggravation of his previous condition are supported by the evidence and will not be disturbed on appeal.
For these reasons, we affirm the decision of the commission.
Affirmed.