Lee County School Board v. Miller

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia

LEE COUNTY SCHOOL BOARD AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 2610-01-3 JUDGE LARRY G. ELDER
MAY 14, 2002
KITTY SUE MILLER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Lisa Frisina Clement (Michael F. Blair;
PennStuart, on brief), for appellants.

D. Allison Mullins (Lee & Phipps, P.C., on
brief), for appellee.

Lee County School Board and Virginia Municipal Group

Self-Insurance Association (hereinafter collectively "employer")

appeal from a decision of the Workers' Compensation Commission

awarding benefits to employee Kitty Sue Miller (claimant) under

the Workers' Compensation Act. On appeal, employer contends

claimant failed to prove by clear and convincing evidence that

her carpal tunnel syndrome (CTS) was a compensable disease under

Code § 65.2-401 because the medical evidence failed to provide a

sufficient causal link between claimant's CTS and her

employment. We hold that the evidence as a whole, including

claimant's testimony, supported the commission's finding of

causation. Thus, we affirm the award.
 I.

BACKGROUND

Claimant began working for employer at Keokee Elementary

school as a substitute employee in 1980 and became a regular

employee in about 1990. Most of that time, claimant worked as a

cook, but for about two years in the mid 1990s, she worked as a

janitor. Claimant's janitorial work required her to shovel more

than a ton of coal into the school's furnaces on a daily basis.

She also "worked on the furnace, took ashes out," mowed grass,

used a "weed eate[r]," and installed windows. In about 1996,

she returned to working as a cook, and she worked as a cook

throughout the remainder of her employment. Claimant described

her work as a cook as follows: "[W]e cook hamburger meat which

is 40 to 50 pounds in a case. We stock. We put all of our

stock away. We put all of our produce away. We're constantly

lifting pans, kettles, washing, mopping, we lift tables." She

agreed her job involved "repetitive lifting, rotating, bending

and use of [her] wrist."

About three years prior to the December 2000 hearing,

claimant began to experience problems with her arms and wrists.

She "thought it was just [the] lifting" causing her "wrists [to]

get sore," and she "never thought [anything] about it" "because

[she] enjoyed working." However, when her "hands kept getting

worse" and began "going numb and drawing up on her," she decided

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to seek medical attention. At that time, she was engaged in no

hobbies or any other activities outside of work.

On October 8, 1999, claimant saw Dr. Richard Norton with

complaints of pain in her upper extremities. She reported the

pain was in her shoulders, elbows and wrists and that it was

worse in the mornings. After x-rays of claimant's hands

revealed no arthritic changes, Dr. Norton referred claimant to

Dr. Mohammed Bhatti, a neurologist. When Dr. Bhatti examined

claimant on November 1, 1999, he detected a loss of grip

strength in claimant's hands and noted the loss was greater in

her dominant left hand. Dr. Bhatti suspected carpal tunnel

syndrome (CTS). Nerve conduction studies performed on December

3, 1999, confirmed "bilateral median nerve compression in carpal

tunnel, left more than right." Claimant's nerve conduction

studies also indicated right ulnar nerve compression in the

cubital canal. Dr. Bhatti noted claimant had subcutaneous knots

on both arms, but he gave no indication of any connection

between the nodules and claimant's CTS.

On referral from Dr. Bhatti, claimant then saw Dr. Hossein

Faiz, a surgeon, regarding removal of the painful subcutaneous

nodules on her elbows. On December 15, 1999, Dr. Faiz removed

the nodules. He noted that the right nodule had attached and

compressed the right ulnar nerve whereas the left nodule "was

not close to any major nerve structures." Dr. Faiz directed

that a copy of his operative note be sent to Dr. Bhatti.

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 Dr. Bhatti saw claimant again on December 22, 1999, after

Dr. Faiz removed the nodules from claimant's elbows. Dr. Bhatti

recommended that claimant undergo a bilateral CTS release for

her "[b]ilateral moderate to severe median nerve compression."

Claimant confirmed that Dr. Bhatti told her in December of 1999

that she had bilateral CTS which was worse on the left.

In early 2000, claimant saw Dr. Robert Evans, an osteopath,

for continuing complaints of pain in her hands. He noted she

had CTS and was waiting until school was out to have

decompression surgery. In his February 26, 2000 office note,

Dr. Evans noted "[m]ost of the problem comes during the day

while she is working. . . . [S]he has to use the hands and

wrists a big deal at work and it is mostly during this time and

shortly afterwards that it bothers her." When Dr. Evans saw

claimant again on April 24, 2000, for "worsening pain," he noted

she was a cafeteria worker and said, "I know that the repetitive

nature of the work that she does, and has for years, is being

the deciding factor in these bilateral carpal tunnel syndromes."

Claimant subsequently returned to Dr. Faiz for the

recommended CTS surgery. However, Dr. Faiz sent claimant back

to Dr. Bhatti for repeat nerve conduction studies because the

last studies had been performed during the previous year. The

repeat nerve conduction studies revealed "normal ulnar nerve

parameters bilaterally" but showed a mild worsening of

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claimant's left CTS. Dr. Bhatti examined claimant again on

November 16, 2000, and noted no significant changes in her CTS.

Claimant testified that she told Dr. Bhatti about the

"repetitive lifting, rotating, bending[,] use of [her] wrist"

and "pulling" she engaged in at work and that, sometime in the

year 2000, Dr. Bhatti told her that her CTS "was caused by the

work, by the lifting and the tugging all day long seven hours a

day," "[p]ulling all those years." Dr. Bhatti's office notes do

not reflect this opinion or the communication of such an opinion

to claimant. However, Dr. Bhatti opined in a November 22, 2000

letter to employer's counsel that "[claimant's] [CTS] is most

probably secondary to [the] cumulative effect of several years

duration involving repetitive lifting, rotating, bending, and

use of wrists, regardless of weight, which may be caused by work

done as is required by a cook." He also noted that "frequent

breaks between [claimant's] cooking chores were observed [to]

alleviate[] [her] symptoms." Finally, Dr. Bhatti indicated an

awareness of the knots in claimant's arms but opined the knots

"most probably have no direct bearing on [her] [CTS] symptoms

unless upon surgical exploration they are found to be in the

carpal tunnel region."

The deputy commissioner expressed doubts about the

sufficiency of the medical evidence, standing alone, to prove

causation by clear and convincing evidence. However, he found

that the record as a whole, including evidence of the repetitive

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nature of claimant's job and the absence of evidence of any

non-work-related cause for claimant's CTS, permitted him to find

clear and convincing evidence of causation.

With one commissioner dissenting, the commission affirmed,

noting that the evidence need not prove "conclusive[ly]" that

claimant's CTS resulted from her work. The majority relied on

(1) evidence that claimant's job required "extensive" repetitive

use of her hands and that claimant's treating physicians offered

uncontradicted testimony linking her work with her CTS and (2) a

lack of evidence to suggest that any non-work-related activities

could have caused claimant's condition.

II.

ANALYSIS

The Workers' Compensation Act (the Act) provides that

carpal tunnel syndrome is an "ordinary disease[] of life as

defined in [Code] § 65.2-401." Code § 65.2-400(C). For an

ordinary disease of life to be compensable under Code

§ 65.2-401, a claimant must prove by "clear and convincing

evidence, (not a mere probability)," that the disease (1) "arose

out of and in the course of [her] employment as provided in Code

§ 65.2-400 . . ."; (2) "did not result from causes outside of

the employment"; and (3) "follows as an incident of occupational

disease . . . [;] is an infectious or contagious disease

contracted in the course of [specified types of employment]; or

. . . is characteristic of the employment and was caused by

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conditions peculiar to such employment." Code § 65.2-401. Code

§ 65.2-400(B) provides that a disease arises out of the

employment "if there is[, inter alia,] . . . [a] direct causal

connection between the conditions under which work is performed

and the occupational disease; . . . [and] [i]t can be fairly

traced to the employment as the proximate cause . . . ."

(Emphases added).

Evidence is clear and convincing when it produces in the

fact finder "'a firm belief or conviction as to the allegations

sought to be established. It is . . . more than a mere

preponderance, but not to the extent of such certainty as is

required beyond a reasonable doubt as in criminal cases. It

does not mean clear and unequivocal.'" Fred C. Walker Agency v.

Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting

Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954)).

The commission's determination regarding causation is a

finding of fact. Marcus v. Arlington County Bd. of Supervisors,

15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993). A finding of

causation need not be based exclusively on medical evidence.

Dollar Gen'l Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d

152, 154 (1996). "The testimony of a claimant may also be

considered in determining causation, especially where the

medical testimony is inconclusive." Id.

"To appraise the true degree of
indispensability which should be accorded
medical testimony, it is first necessary to

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 dispel the misconception that valid awards
can stand only if accompanied by a definite
medical diagnosis. True, in many instances
it may be impossible to form a judgment on
the relation of the employment to the injury
[or disease] . . . without analyzing in
medical terms what the injury or disease is.
But this is not invariably so. In
appropriate circumstances, awards may be
made when medical evidence on these matters
is inconclusive, indecisive, fragmentary,
inconsistent, or even nonexistent."

Id. at 177, 468 S.E.2d at 154-55 (quoting 2B Arthur Larson, The

Law of Workmen's Compensation § 79.51(a) (1995) (citations

omitted)). Similarly, where the diagnosis is clear but the

medical evidence does not provide a sufficient causal link

between the ailment and the employment, the commission may rely

on the testimony of the claimant to establish this link. Id.

In determining whether credible evidence exists to support

the commission's findings of fact, "the appellate court does not

retry the facts, reweigh . . . the evidence, or make its own

determination of the credibility of the witnesses." Wagner

Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991). Thus, unless we can say as a matter of law that

claimant failed to sustain her burden of proving causation, the

commission's findings are binding and conclusive upon us.

Marcus, 15 Va. App. at 551, 425 S.E.2d at 530; Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).

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 Claimant produced clear and convincing evidence that her

CTS (1) arose out of and in the course of her employment, (2)

did not result from causes outside her employment, (3) was

characteristic of her employment and (4) was caused by

conditions peculiar to such employment. As the commission

noted, the medical evidence did not conflict and uniformly

connected claimant's condition with her employment. As the

deputy commissioner and commission found, claimant's duties

included "cooking, stocking, washing, mopping, shoveling coal,

mowing grass, using a weed eater and managing the furnace."

These duties required claimant "to use her hands and wrists a

[great] deal," and claimant reported that "it is mostly during

this time and shortly afterwards that [her wrists and hands]

bother[] her." The evidence also indicated that "frequent

breaks between [claimant's] cooking chores . . . alleviate[d]

[her] symptoms."

Credible evidence established that Dr. Evans and Dr. Bhatti

were aware of claimant's job duties and the effect these duties

had on her symptoms. Based on this knowledge, Dr. Evans opined

that "the repetitive nature of the work that [claimant] does,

and has [done] for years, is being the deciding factor in these

bilateral carpal tunnel syndromes." (Emphasis added). As we

previously have held, the requirement that a claimant establish

the source of the disease means she must point "not to a single

source [of the disease], to the complete exclusion of all other

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sources, but to the primary source . . . ." Ross Labs. v.

Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991); see

Marcus, 15 Va. App. at 551, 425 S.E.2d at 530. Dr. Evans'

opinion that the repetitive nature of claimant's work was "the

deciding factor" in her development of CTS was accepted by the

commission and, considered together with claimant's testimony

and the other evidence in the record, constitutes credible

evidence that claimant's work was "the primary source" of her

CTS. 1

1
The dissent appears to construe Dr. Evans' opinion as
stating that the nature of claimant's work was merely a factor
which contributed to her development of CTS. On the contrary,
Dr. Evans expressly opined that claimant's work was "the
deciding factor." (Emphasis added). Giving these words their
ordinary import compels the conclusion, as set out in the text,
that claimant's work was "the primary source" of her CTS, which
is all that the law requires. See Marcus, 15 Va. App. at 551,
425 S.E.2d at 530; Barbour, 13 Va. App. at 377, 412 S.E.2d at
208.
Webster's Third New International Dictionary 585 (1993),
the source cited by the dissent, defines the word, "decide," as
follows:

vt: to dispel doubt on: a: to arrive at
a choice or solution concerning which ends
uncertainty or contention <~ what to order
for breakfast> b: to bring definitively and
conclusively to an end esp. in matters
relating to war . . . vi: to make a choice
or decision esp. a binding or definitive one
presumably after consideration . . . .

Under any of the above-quoted definitions of "decide," "the
deciding factor" is one which does more than simply contribute;
under the second definition above, "the deciding factor" is the
"definitive" or "conclusive" factor, rather than merely "one
possible consideration." Thus, viewing the evidence in the
light most favorable to claimant, Dr. Evans' opinion that

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 Dr. Bhatti's opinion further supports the commission's

finding of causation. Dr. Bhatti did not render his opinion

based on "a mere probability," a standard rejected by the

language of Code § 65.2-401. Rather, Dr. Bhatti opined that

claimant's CTS "is most probably secondary to [the] cumulative

effect of several years duration involving repetitive lifting,

rotating, bending, and use of wrists." (Emphasis added). He

acknowledged the knots on claimant's arms but opined that they

"most probably ha[d] no direct bearing on her [CTS] symptoms"

unless shown to have infiltrated the carpal tunnel region.

(Emphasis added).

Something that is merely "probable" has "more evidence for

[it] than against [it]." Black's Law Dictionary 1081 (5th ed.

1979). Thus, probability may be equated with proof by a

preponderance, see Slaughter v. Valleydale Packers, Inc., 198

Va. 339, 345-46, 94 S.E.2d 260, 266 (1956), an evidentiary

standard lower than the clear and convincing evidentiary

standard required by Code § 65.2-401, see Lucas, 215 Va. at 540,

211 S.E.2d at 92. However, Dr. Bhatti's addition of the word

"most" to his opinion changed its meaning considerably. The

adverb "most" means "[i]n or to the highest degree" and is

claimant's work was "the deciding factor" in her development of
bilateral CTS is sufficient to support the commission's implicit
finding that it was "the primary source." See Marcus, 15 Va.
App. at 551, 425 S.E.2d at 530; Barbour, 13 Va. App. at 377, 412
S.E.2d at 208.

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"[u]sed with many adjectives and adverbs to form the superlative

degree [as in] most honest [or] most impatiently." The American

Heritage Dictionary of the English Language 1178 (3d ed. 1992).

Thus, the commission could reasonably conclude that

Dr. Bhatti, by combining the adverbs "most" and "probably,"

expressed his opinion regarding the cause of claimant's CTS as

"a firm belief or conviction," the standard required to prove a

proposition by clear and convincing evidence. See Lucas, 215

Va. at 540, 211 S.E.2d at 92 (quoting Cross, 120 N.E.2d at 123).

Further, in light of the record as a whole, Dr. Bhatti's

statement that the repetitive motion and resulting CTS he

described "may be caused by work done as is required by a cook"

was not an equivocation and, therefore, did not diminish the

weight the commission could give to Dr. Bhatti's opinion. As

the commission noted, the record reflected claimant's testimony,

which it found credible, that claimant's job did, in fact,

require such activities. Claimant also testified that she had

informed Dr. Bhatti, in response to his inquiries, about the

repetitive nature of her job duties. 2 Thus, the record as a

whole, including claimant's testimony and the opinions of

Drs. Evans and Bhatti, contained credible evidence to support

the commission's finding, by clear and convincing evidence, that

2
In affirming the commission's award, we do not rely on
claimant's hearsay testimony that Dr. Bhatti said her CTS was
caused by her work.

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claimant's CTS arose out of and in the course of her work for

employer.

Finally, the record supports the commission's conclusion

that claimant met her burden of proving her CTS did not result

from causes outside of the employment. The medical evidence

outlined above provided clear and convincing evidence that

claimant's CTS resulted from repetitive motion rather than from

the nodules on claimant's arms or from any other medical

condition, and claimant testified that she engaged in no hobbies

or other activities outside her work which involved this type of

motion. Although statements from claimant's doctors that her

CTS did not result from any causes outside of the employment may

have strengthened claimant's case, such statements were not

critical to the commission's determination in light of

claimant's own testimony. See Cridlin, 22 Va. App. at 176-77,

468 S.E.2d at 154-55; see also Island Creek Coal Co. v.

Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988) (where

physician could not state "'to a reasonable medical certainty'

that [claimant's] hearing loss was not caused by non-employment

factors" but said "[claimant] did not give me a history of

anything [outside of work] I might interpret as having caused

it," the commission "could and did draw the reasonable inference

that [claimant's] hearing loss was not caused by non-employment

factors based on his negative history of noise exposure which

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would cause such a hearing loss and the nonexistence of genetic

or biological factors").

For these reasons, we hold the record as a whole contains

credible evidence to support the commission's conclusion that

claimant proved the necessary causal connection between her CTS

and her employment and that she did so by clear and convincing

evidence. Therefore, we affirm the commission's award.

Affirmed.

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Agee, J., dissenting.

To prove a compensable claim for carpal tunnel syndrome

(CTS) as an ordinary disease of life under the Workers'

Compensation Act (the Act), Code § 65.2-401 requires a claimant

to prove, by clear and convincing evidence and not evidence

indicating a mere probability, that (1) the disease arose out of

and in the course of the employment as provided in Code

§ 65.2-400 (first prong), and (2) did not result from causes

outside of the employment (second prong). See Code

§ 65.2-401(1); see also Lanning v. Dep't of Transp., 37 Va. App.

701, 561 S.E.2d 33 (2002). The plain language of Code

§ 65.2-401 places the burden of proof upon the claimant to prove

both of these statutory prongs in order to sustain an award.

Proof of only one element, but not the other, is insufficient.

See Purcellville Police v. Bromser-Kloeden, 35 Va. App. 252,

259, 544 S.E.2d 381, 384 (2001) ("[A]n ordinary disease of life

to which the general public is exposed outside of the employment

generally is not covered by the Act unless a claimant can prove

by clear and convincing evidence, inter alia, that the disease

arose out of and in the course of employment and did not result

from causes outside the employment.").

Construing the evidence in the light most favorable to

claimant, the prevailing party below, I nonetheless find the

commission's determination that claimant met her burden of proof

as to the statutory prongs to be erroneous and not supported by

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the evidence. Accordingly, I dissent from the majority opinion

for the following reasons.

A. ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT: FIRST PRONG

Claimant was required to prove by clear and convincing

evidence that her CTS arose out of her employment with the

employer.

A disease shall be deemed to arise out of
the employment only if . . . [a] direct
causal connection between the conditions
under which work is performed and . . . [the
CTS] . . . can be fairly traced to the
employment as the proximate cause.

Code § 65.2-400(B) (emphasis added). Upon a review of the

record, I find the claimant failed to prove by clear and

convincing evidence a direct causal connection between her

condition and her employment, which was the proximate cause of

her CTS.

I respectfully disagree with the majority's determination

that the medical narratives of Drs. Evans and Bhatti, reviewed

individually or collectively, support a finding that claimant

presented clear and convincing evidence that her CTS arose out

her employment with the employer.

Dr. Evans' April 24, 2000 file note stated, "I know that

the repetitive nature of the work that she does, and has for

years, is being the deciding factor in these bilateral carpal

tunnel syndromes." (Emphasis added). In considering the

evidence in the light most favorable to claimant, the commission

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could construe the term "these" to refer to claimant's CTS

causation, as opposed to CTS generally. However, I disagree

with the majority that use of the term "deciding factor"

constitutes proof by clear and convincing evidence of a direct

causal connection and proximate cause.

A "deciding factor" is a factor used to arrive at a choice

or solution which ends uncertainty. See generally Webster's

Third New International Dictionary 585, 813 (1993). 3 While this

definition of a "deciding factor" may meet the standard of proof

by a preponderance of the evidence, it does not meet the clear

and convincing standard of proof.

Clear and convincing evidence produces in the fact finder

"a firm belief or conviction as to the
allegations sought to be established. It is
. . . more than a mere preponderance, but
not to the extent of such certainty as is
required beyond a reasonable doubt as in
criminal cases."

Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211

S.E.2d 88, 92 (1975) (citation omitted). Dr. Evans' term

"deciding factor" begs the question: Was it, or was it not, a

3
A "factor" is defined as "something (as an element,
circumstance, or influence) that contributes to the production
of a result." Webster's, supra, at 813 (emphasis added); see
also Black's Law Dictionary 612 (5th ed. 1999) (defining
"factor" as, inter alia, "[a] cause that contributes to a
particular result"). The verb "decide" is defined as "to arrive
at a choice or solution concerning which ends uncertainty or
contention." Webster's, supra, at 585. Thus, it is reasonable
to define a "deciding factor" as one possible consideration that
aids in making a decision.

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direct and proximate cause? Was claimant's work simply one of

multiple factors relating to CTS causation? If so, was her work

the proximate cause, a direct cause or a factor whose weight

cannot be quantified? On the record, we simply have no means of

ascertaining what Dr. Evans meant when he characterized

claimant's work as a "deciding factor" in "these" kinds of

cases.

As such, I do not find Dr. Evans' note rises to the level

of clear and convincing evidence sufficient to provide a fact

finder with a firm belief that claimant's CTS was directly and

proximately caused by her employment and, therefore, it does

not, by itself, satisfy the first prong as a matter of law.

I also disagree with the majority's conclusion that

Dr. Bhatti's written response as to causation meets the clear

and convincing standard. Dr. Bhatti wrote:

Her carpal tunnel syndrome is most probably
secondary to cumulative effect of several
years duration involving repetitive lifting,
rotating, bending, and use of wrists,
regardless of weight, which may be caused by
work done as is required by a cook.

(Emphasis added). Dr. Bhatti did not opine that claimant's work

"most probably" caused her CTS. To the contrary, he plainly

says claimant's CTS "may be caused by work." "May" means to "be

in some degree likely." Webster's, supra, at 1396 (emphasis

added). By definition, Dr. Bhatti's inability to quantify

causation by using the term "may" cannot rise to the standard of

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proof by clear and convincing evidence as a matter of law.

Consequently, his letter of November 22, 2000, does not meet the

standard of clear and convincing evidence to prove the first

prong under Code § 65.2-401(1).

The only evidence in the record that claimant's employment

caused her condition is her own assertion that Dr. Bhatti told

her that her work may have caused her CTS:

Q. Just as clarification, Ms. Miller, did
Dr. Bhatti, in your conversations and your
understanding of your conversations with
him, indicate that your work may have been
caused by carpal tunnel or was. . .

A. Yes.

Q. . . . caused by carpal—I mean, excuse
me, your work caused carpal tunnel?

A. Well, me and him talked about it and I
was telling him about what I did at work and
the lifting and the pulling and he said that
it was caused by the work, by the lifting
and the tugging all day.

(Emphasis added).

While the commission may rely on the testimony of the

claimant to establish causation, see Dollar Gen'l Store v.

Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996), the

claimant's assertion in this case does not provide clear and

convincing evidence of causation. "[A] bare assertion . . .

does not meet the 'clear and convincing standard.'" Lanning, 37

Va. App. at 708, 561 S.E.2d at ____.

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 Unlike the claimant in Cridlin, who testified as to how she

was injured while performing her job tasks when the medical

evidence on causation was inconclusive, claimant did not testify

in the case at bar to explain the cause and effect of her work

environment on her CTS. Instead, claimant testified as to the

medical opinion of her physician, an opinion that was not

verified by the physician. While I recognize the commission's

role of assigning credibility and weight to the evidence,

claimant's hearsay rendition of the physician's opinion cannot

be bootstrapped into proof of medical causation when the

physician's own opinion fails to make the causal link. In

short, I find no support for the proposition that the

non-conclusory medical opinions of the physicians can be

rehabilitated to rise to the level of clear and convincing

evidence in this case by using claimant's self-serving version

of what the physician's opinion should have been in order to

meet the statutory burden of proof.

The commission was cognizant of this lack of clear and

convincing evidence, but nonetheless assumed a connection. It

appears to have based the decision to award benefits on the fact

that employer did not present any evidence as to other possible

causes of claimant's CTS. It allowed the absence of evidence as

to other causes (the second prong), an evidentiary burden it

placed on the employer, to amount to de facto evidence adequate

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to satisfy claimant's requisite first prong of proof. The

deputy commissioner was fairly candid in making that leap:

[N]o medical opinion has been offered to
help us determine whether or not claimant's
carpal tunnel syndrome resulted from her
employment with this employer.

* * * * * * *

[W]e have reservations that the evidence
meets the clear and convincing standard and
not a mere probability as required by Code
§ 65.2-401; however, as the record does not
indicate any non-work related cause of
claimant's bilateral carpal tunnel syndrome
. . . we will resolve all our doubts in
claimant's favor and conclude that she has
contracted bilateral carpal tunnel syndrome
as a consequence of her employment with this
employer.

While not as directly, the full commission adopts a similar

approach, although without the deputy commissioner's degree of

candor.

There is simply no statutory or other authority to hold

that the employer's failure to present evidence to disprove the

second prong is somehow morphed into evidence sufficient to meet

claimant's burden as to the first prong. It was error for the

commission to accord proof of the first prong, an independent

statutory element of proof, by implication from lack of

counter-evidence associated with the second prong.

In Lindenfield v. Richmond Sheriff's Office, 25 Va. App.

775, 492 S.E.2d 506 (1997), we affirmed the decision of the

commission to deny benefits to a claimant who suffered from

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tuberculosis, which he alleged he had contracted while working

at the City of Richmond Jail because (1) no one in his family or

close set of friends had tested positive for the disease and (2)

the incidence of tuberculosis is greater among prison inmates

than it is in the general population. The record contained the

opinions of three physicians regarding the causation of the

claimant's disease, one of which was an opinion "to a reasonable

degree of medical certainty that [the] claimant contracted

tuberculosis while working in the jail." Id. at 781, 492 S.E.2d

at 509. 4 We held the claimant failed to prove by clear and

convincing evidence that his employment in the jail caused his

tuberculosis.

Although claimant established that his risk
of TB infection at the jail was greater than
in the general public and he eliminated some
possible sources of infection from outside
of his employment (which is the second
element of a claim under Code § 65.2-401),
these facts alone do not compel the
conclusion that he inhaled the TB bacteria
while working in the jail. Instead, these
facts merely show through an incomplete
process of elimination that claimant may
have contracted tuberculosis while at work.
To hold that this method of proof
constitutes clear and convincing evidence as

4
Code § 65.2-401, at the time of the Lindenfeld case,
required a claimant to prove by "clear and convincing evidence,
to a reasonable degree of medical certainty" that the disease
arose out of and in the course of employment. The "reasonable
degree of medical certainty" evidentiary requirement has since
been deleted. Our decision in Lindenfeld focused on whether the
totality of the evidence met the clear and convincing evidence
standard and not whether the claimant had proven by a reasonable
degree of medical certainty that the disease arose out of his
employment.

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 a matter of law of a causal link between
employment and a disease . . . would
effectively shift the burden to the employer
to prove that the claimant contracted his
disease from a source outside of his
employment. The express provisions of Code
§ 65.2-401 assigning the burden of proof by
clear and convincing evidence to the
employee preclude such a conclusion.

Id. at 787, 492 S.E.2d at 512 (citation omitted) (emphasis in

original).

Accordingly, I would reverse the commission's award because

claimant has not proven, by clear and convincing evidence, that

her CTS arose out of and in the course of her employment, the

first prong of proof she is required to present under Code

§ 65.2-401(1).

B. NO CAUSES OUTSIDE OF THE EMPLOYMENT: SECOND PRONG

Assuming, arguendo, claimant's evidence on the first prong

meets the clear and convincing standard, I would hold on this

record that claimant failed to prove, even by a preponderance of

the evidence, that no activities outside her employment with the

employer caused her CTS.

The General Assembly has clearly mandated a claimant

affirmatively prove, as an independent evidentiary condition

precedent to an award, that her CTS did not result from causes

outside of her employment. See Code § 65.2-401(1). In my view,

the commission's decision rewrites this statutory burden. In

effect, the commission held that a claimant meets the statutory

burden if the employer fails to produce affirmative evidence

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that the claimant's CTS resulted from causes outside of the

employment. Such a reading is erroneous and contrary to the

plain language of the statute. See Lindenfeld, 25 Va. App. at

787, 492 S.E.2d at 512.

The commission specifically held that claimant met her

burden of proof because "the evidence did not suggest any

non-work related activities that could have caused her

condition." However, as Commissioner Tarr's dissent correctly

noted,

the Act requires the claimant prove by clear
and convincing evidence that her condition
did not result from causes outside her work.
The claimant's affirmative burden of proof
is not met if the employer fails to produce
a non-work related cause of the condition.

The majority seems to find support for the commission's

placement of the evidentiary burden and its resulting decision

when it notes "claimant testified that she engaged in no hobbies

or other activities outside her work which involved this type of

motion." The record, however, does not support that assertion.

The only evidence in the record regarding non-employment

activities is the following colloquy on cross-examination of

claimant:

Q. Were you involved in a lot of other
things outside of work at that time too?

A. No.

Q. Any type of hobbies outside of work?

A. No.

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 Q. Bowling, anything like that?

A. No.

(Emphasis added).

Claimant's testimony that she had no hobbies and did not

bowl does not provide proof by clear and convincing evidence

that the myriad of her life activities outside her employment

did not cause the CTS. Nowhere in the record does claimant, or

anyone else, testify or offer evidence that she engaged in no

other activities outside of her work for the employer which

involved the type motion that could cause CTS.

Under the statutory burden of proof established by the

General Assembly in Code § 65.2-401(1), a claimant must

affirmatively produce clear and convincing evidence that her CTS

did not result from causes outside of the employment. While

that element of proof might be satisfied by a claimant's

testimony that she engaged in insubstantial or no non-work

activities with the type of repetitive motion that would cause

CTS, no such evidence can be found in this record. Neither the

commission nor this Court can supply or assume that evidence or,

more importantly, alter the statutory burden of proof. If the

General Assembly chooses to change the statutory burden of proof

under Code § 65.2-401(1), it has the power to do so. However,

neither the commission nor this Court possesses that authority.

In this case, claimant failed to adduce affirmative

evidence which would satisfy even a preponderance of the

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evidence standard, much less a clear and convincing evidence

standard, as to the second prong of Code § 65.2-401(1).

Accordingly, I would reverse the decision of the commission to

award benefits to claimant.

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