COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
BLUE RIDGE MARKET OF VIRGINIA, INC. AND
NATIONWIDE MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 0493-02-3 JUDGE G. STEVEN AGEE
JANUARY 21, 2003
PHILMON H. PATTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Paul C. Kuhnel (Christopher W. Stevens;
WootenHart PLC, on brief), for appellants.
(Ginger J. Largen; Morefield & Largen,
P.L.C., on brief), for appellee. Appellee
submitting on brief.
Blue Ridge Market of Virginia, Inc., and its insurance
carrier, Nationwide Mutual Insurance Company ("employer"),
appeal a decision of the Workers' Compensation Commission
("commission") awarding benefits to Philmon H. Patton
("Patton"). The employer alleges that the commission erred (1)
by awarding benefits for aggravation of Patton's carpal tunnel
syndrome because it was a pre-existing ordinary disease of life,
and (2) by including that portion of Patton's disability
resulting from aggravation of his carpal tunnel syndrome in the
permanent partial disability rating. For the reasons that
follow, we affirm the commission's decision.
I. BACKGROUND
Patton, a truck driver, injured his right arm when he
slipped on a wet tire during the course of his employment. He
received treatment from Dr. Edward Dannelly, III, an orthopedic
surgeon. Dr. Dannelly diagnosed Patton with a right-arm bicep
tendon rupture and a subsequent MRI revealed a tear in Patton's
right pectoral muscle. Dr. Dannelly calculated a permanent
partial disability impairment rating of 55% (25% for loss of arm
motion and 15% each for the bicep tendon rupture and pectoral
muscle rupture).
Patton was then transferred to another orthopedic surgeon,
Dr. Paul Morin, for care. Dr. Morin concurred with Dr. Dannelly
that Patton's injuries were consistent with a rupture of the
long head of the biceps. Eventually Dr. Morin opined that
Patton had "ongoing discomfort secondary to a biceps tendon
rupture as well as bilateral carpal tunnel syndrome" and that
"the carpal tunnel on the right was secondary to his fall and
the carpal tunnel on the left was not." Dr. Morin calculated
Patton's permanent partial disability rating at 60% (20% for the
biceps tendon rupture and 40% for the severe compression of the
median nerve in the wrist). Dr. Morin gave his opinion to
employer's counsel that Patton's "underlying carpal tunnel
disease" was "aggravated" and "exacerbated" by his accident.
Dr. Joseph Moskal evaluated Patton one time, reviewed
additional medical records and stated his opinion to employer's
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counsel that Patton's bilateral carpal tunnel syndrome was
independent from the work injury to his right arm.
Patton sought an award of medical benefits and compensation
for various periods of disability. He also sought an award of
permanent partial disability to his right arm. The deputy
commissioner concluded that Patton had pre-existing but
asymptomatic right carpal tunnel syndrome that was materially
aggravated by his accident and found that a 57.5% permanent
partial disability rating was warranted for the totality of
Patton's injuries.
On review, the full commission affirmed the deputy
commissioner's decision:
the August 10, 1999, injury by accident
materially aggravated a pre-existing
condition, e.g. the claimant's right carpal
tunnel syndrome. It is well settled that an
accident that accelerates or aggravates a
preexisting condition is compensable.
Liberty Mutual Insurance Co. v. Money, 174
Va. 50, 4 S.E.2d 739 (1939); Geth v. Lake
Taylor Hospital, VWC File No. 175-63-16
(September 15, 1997). The employer took the
claimant as it found him, with all of his
preexisting disabilities and infirmities,
and is responsible for the effects of an
accident that aggravated or exacerbated such
preexisting condition, even if the condition
would otherwise be considered an ordinary
disease of life. See Ohio Valley
Construction v. Jackson, 230 Va. 56, 334
S.E.2d 554 (1985) and Oliff v. Giant Food,
Inc., VWC File No. 196-74-13 (October 16,
2000). We therefore reject the employer's
argument that the claimant experienced a
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non-compensable aggravation of his
pre-existing ordinary disease of life.
The employer now appeals to this Court.
II. ANALYSIS
A. Standard of Review
"On appeal we view the evidence in the light most favorable
to [Patton], the party prevailing before the commission." Great
Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525 S.E.2d
55, 56 (2000). "[D]ecisions of the commission as to questions
of fact, if supported by credible evidence, are conclusive and
binding on this Court." Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 673, 508 S.E.2d 335, 340 (1998). Unlike questions
of fact, however, we review questions of law de novo. Sinclair
v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 S.E.2d
856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 Va.
App. 265, 269, 337 S.E.2d 901, 903 (1985)).
B. Compensability of a Pre-existing Ordinary Disease of Life
The first issue raised on appeal is purely a question of
law. Does Virginia law allow a claimant who sustains an initial
compensable injury by accident to recover disability benefits
for that portion of the disability resulting from aggravation,
by the accident, of an ordinary disease of life? 1
1
Employer does not contest that the injury to Patton's
shoulder when he fell on the tire was a compensable injury by
accident. Code § 65.2-400(c) plainly provides that carpal
tunnel syndrome is not an occupational disease, but an "ordinary
disease of life as defined in § 65.2-401."
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The general rule, followed by a majority of states, is that
"[p]reexisting disease or infirmity of the employee does not
disqualify a claim under the 'arising out of employment'
requirement if the employment aggravated, accelerated, or
combined with the disease or infirmity to produce the death or
disability for which compensation is sought." 1 A. Larson & Lex
K. Larson, Larson's Workers' Compensation Law § 9.02[1] (2002)
(citations omitted). According to Professor Larson this rule is
widely accepted, though he notes that Virginia is among a small
minority of states that does not follow it. Id. at § 9.02[4]
n.22 (citing Ashland Oil Co. v. Bean, 225 Va. 1, 300 S.E.2d 739
(1983), as contra authority); Nycum v. Triangle Dairy Co., 712
P.2d 559 (Idaho 1985).
The employer contends that the Supreme Court of Virginia's
ruling in Ashland Oil bars Patton's recovery in this case. The
claimant in Ashland Oil, a gas-station attendant who was
required to stand during her entire six or eight hour shifts,
sought compensation for disability resulting from "occupational
disease," specifically, bunions on her feet. The full
commission "found that Bean 'became disabled as a result of
inflammation of a pre-existing bunion on her left foot'" and
entered an award in her favor because "the claimant's
pre-existing condition was aggravated by her work to the point
that it became disabling." 225 Va. at 3, 300 S.E.2d at 739. On
appeal, the Supreme Court of Virginia reversed, holding that
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Bean's bunions could not have been a compensable occupational
disease because they pre-existed her employment and thus did not
arise out of her employment. Id. at 3, 300 S.E.2d at 740.
In sustaining Patton's claim in the case at bar the full
commission stated the general principle of Ashland Oil, but
concluded that Ashland Oil was inapplicable in this case because
Patton's claim was not an occupational disease claim under Code
§ 65.2-400. We agree, and find that other precedent controls
this case.
In Justice v. Panther Coal Co., 173 Va. 1, 2 S.E.2d 333
(1939), the Supreme Court of Virginia described "[t]he general
rule . . . that [a] causal connection is established when it is
shown that an employee has received a compensable injury which
materially aggravates or accelerates a pre-existing latent
disease." Id. at 6-7, 2 S.E.2d 336; see also Liberty Mutual
Insurance Co. v. Money, 174 Va. 50, 4 S.E.2d 739 (1939);
Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d
1, 3 (1991) ("Where a causal connection between the initial
compensable injury and the subsequent injury is established,
. . . the subsequent injury 'is treated as if it occurred in the
course of and arising out of the employee's employment.'"
(quoting Leonard v. Arnold, 219 Va. 210, 214, 237 S.E.2d 97, 100
(1977))). The Supreme Court reaffirmed this principle in Ohio
Valley Construction Co. v. Jackson, 230 Va. 56, 334 S.E.2d 554
(1985), holding that "[w]hen an injury sustained in an
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industrial accident accelerates or aggravates a pre-existing
condition, death or disability resulting therefrom is
compensable under the Workers' Compensation Act." Jackson, 230
Va. at 58, 334 S.E.2d at 555.
The distinction between the Ashland Oil line of cases and
Ohio Valley Constr. Co. and its progeny rests on the occurrence
of an intervening compensable injury by accident. "In order to
recover benefits for an injury under the Workers' Compensation
Act, the employee must have suffered an "'injury by accident
arising out of and in the course of the employment.'" Goodyear
Tire & Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d
619, 621 (2001) (quoting Code § 65.2-101). In Ashland Oil, the
claimant was denied compensation because her bunions were a
pre-existing condition aggravated by her working conditions
(standing for long periods of time), not the result of a
compensable injury by accident. In Ohio Valley Constr. Co., as
in the case at bar, the claimant suffered a compensable injury
by accident which aggravated a latent, but pre-existing,
condition (spinal stenosis and carpal tunnel syndrome
respectively, both of which are an ordinary disease of life).
In other words, Virginia law does not allow compensation for a
pre-existing ordinary disease of life that is aggravated simply
by a claimant's working conditions; however, it does permit
recovery when a compensable injury by accident aggravates a
pre-existing, latent ordinary disease of life.
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This legal dichotomy is not unique to Virginia. In Nelson
v. Ponsness-Warren Idgas Enter., 879 P.2d 592 (Idaho 1994), the
Supreme Court of Idaho reversed an award of compensation for a
claimant's carpal tunnel syndrome, because Idaho case law
"recognizes compensability for aggravation of an underlying
disease, but only if such aggravation results from an industrial
accident." Id. at 595 (citing Nycum, 712 P.2d at 563.). The
Nelson court held that the aggravation of the claimant's carpal
tunnel syndrome was not compensable because it was not
attributable to "an accident reasonably located as to time when
and place where it occurred." Nelson, 879 P.2d at 596; see also
Cutsinger v. Spears Mfg. Co., 50 P.3d 479 (Idaho 2002).
The deputy commissioner found, and the commission agreed,
that Patton "had pre-existing but asymptomatic right carpal
total [sic] syndrome that was materially aggravated by the
August 10, 1999, injury." The commission then properly
distinguished between Ashland Oil and Ohio Valley Constr. Co..
The occurrence of the injury by accident to claimant's shoulder
also aggravated a previously existing ordinary disease of life
(carpal tunnel syndrome) and thereby made the carpal tunnel
syndrome compensable. See Southern Iron Works, Inc. v. Wallace,
16 Va. App. 131, 428 S.E.2d 32 (1993) (upholding an award to a
claimant where the medical evidence showed "that the injury to
claimant's back aggravated a quiescent condition of arthritis in
the left hip").
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C. Support by Credible Evidence
On appeal, the commission's factual findings are conclusive
and binding on this Court if supported by credible evidence.
Code § 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.
227, 229, 409 S.E.2d 824, 826 (1991). The principle is well
established that "'[m]edical evidence is . . . subject to the
commission's consideration and weighing.'" City of Richmond
Fire Dep't v. Dean, 30 Va. App. 306, 313, 516 S.E.2d 709, 712
(1999) (quoting Hungerford Mechanical Corp. v. Hobson, 11 Va.
App. 675, 677, 401 S.E.2d 213, 215 (1991)).
Dr. Moskal and Dr. Dannelly both agreed that Patton's
injury did not cause his carpal tunnel syndrome. However,
neither doctor addressed whether the accident aggravated his
condition. Dr. Morin's opinion was that Patton's bilateral
carpal tunnel syndrome predated the accident but that the
accident likely "exacerbated" the carpal tunnel in his right
arm. Further, Dr. Morin gave his opinion "to a reasonable
degree of medical certainty that the accident . . . aggravated
his underlying carpal tunnel disease . . . ." Patton testified
that he had no problems whatsoever with his right arm prior to
the accident.
"Traditional principles dictate, both in the civil and
criminal law, that the determination of a witness' credibility
is within the fact finder's exclusive purview because [the fact
finder] has the best opportunity to observe the appearance and
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demeanor of the witness." Goodyear Tire & Rubber Co. v. Pierce,
5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987) (alteration in
original). Furthermore, "[d]ue process of law requires that,
where credibility is at issue, the administrative agency making
the finding must have the benefit of the impressions of persons
who heard the testimony of the witness." Id. The deputy
commissioner gave great probative weight to Patton's testimony,
and the commission agreed with that assessment. We, likewise,
find there is credible evidence in the record, through the
testimony of Patton and Dr. Morin's opinion, to support the
commission's findings of fact.
III. CONCLUSION
For the reasons previously stated, we hold that Patton's
pre-existing right side carpal tunnel syndrome is compensable
because it was aggravated by his compensable injury by accident.
We also find there was credible evidence to support the decision
of the commission. The commission's decision is therefore
affirmed.
Affirmed.
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