COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
AGNES V. LANNING
OPINION BY
v. Record No. 2264-01-1 JUDGE ROBERT P. FRANK
MARCH 26, 2002
VIRGINIA DEPARTMENT OF TRANSPORTATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John R. Lomax (Berry, Ermlich, Lomax &
Bennett, on brief), for appellant.
Cheryl A. Wilkerson, Assistant Attorney
General (Randolph A. Beales, Attorney
General; Judith Williams Jagdmann, Deputy
Attorney General; Gregory E. Lucyk, Senior
Assistant Attorney General; Scott John
Fitzgerald, Assistant Attorney General, on
brief), for appellee.
Agnes V. Lanning (claimant) filed a claim for benefits with
the Virginia Workers' Compensation Commission (commission)
alleging an injury by accident and development of the
occupational disease of carpal tunnel syndrome while working for
the Virginia Department of Transportation (employer). The
deputy commissioner found a compensable ordinary disease of
life, but did not award any lost time or benefits. The full
commission reversed the deputy commissioner, finding claimant
failed to meet her burden to prove that her carpal tunnel
syndrome was caused by her work. For the reasons stated, we
reverse the commission and remand for further findings.
BACKGROUND
The evidence is not controverted.
Claimant alleges both an injury by accident on February 25,
2000, and the occupational disease of carpal tunnel syndrome.
Claimant began working for employer in 1982 as a toll collector.
In 1994, she was transferred to a clerical position, which
involved data entry, purchase orders, inventory, and
requisitions. She testified that on February 25, 2000, she was
using her right hand to make her daily time entries when her
hand "wouldn't work." She could not move her fingers.
Claimant testified she began to feel "twinging and
tingling" in her right wrist six months prior to the February
25, 2000 incident, but did not seek medical attention until
after that incident. While claimant has a home computer, she
"very seldom" used it. She further testified her only activity
at home involving repetitive movement was light housework. She
did not knit, garden, or work with hand tools.
On March 3, 2000, claimant saw Dr. Frank G. Burns, Jr., her
primary treating physician. Dr. Donald E. LaMarche, Jr.,
performed an electrodiagnostic study on March 17, 2000, and
diagnosed right-side carpal tunnel syndrome. Dr. Burns
performed a carpal tunnel release on the right arm on April 11,
2000. Due to complications, claimant underwent another carpal
tunnel release on August 25, 2000.
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Dr. Burns first saw claimant in 1993, after she sustained a
severe injury to her left arm and hand while working at the toll
booth. Dr. Burns performed surgery on her left shoulder.
However, for a while after the surgery, claimant was unable to
use her left arm at all, and she began having symptoms of right
hand carpal tunnel syndrome. She had several "flare-ups" during
subsequent years. In 1999 and 2000, her right hand symptoms
became much more severe.
In his letter dated January 18, 2001, Dr. Burns indicated
claimant's "pain is related to her on the job injury and the
recurrences that she has had is related [sic] back to her
original injuries and having to use the right arm more." Other
than this letter, no evidence directly addressed causation.
The deputy commissioner found claimant had met her burden:
All of the claimant's doctors agree that the
claimant suffers from carpal tunnel syndrome
and Dr. Burns causally related it to her
work. It is clear to the Commission that
the claimant had no significant exposure to
the hazards of carpal tunnel syndrome
outside of the work place and that her job
entailed numerous repetitive activities
exposing her to the danger. Outside the
workplace, she performs no unusual
activities and is not involved in extensive
sports or recreational activities that could
cause the problem. Based upon the
persuasive and uncontradicted evidence, we
find that she has met her burden of proving
that her carpal tunnel syndrome was caused
by her employment, and she has established
all elements required by [Code] § 65.2-401
by clear and convincing evidence, not a mere
probability.
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The deputy commissioner further found, however, that claimant's
medical records did "not support any period of disability."
The full commission reversed the deputy's award, finding:
although Dr. Burns has stated that her
carpal tunnel syndrome is related to her
work, this is insufficient to establish by
clear and convincing evidence that her work
caused her carpal tunnel syndrome. In prior
cases, we have held that a medical opinion
that a condition is "compatible" or
"related" to work is insufficient.
(Emphasis in original.) The commission did not determine if any
period of disability existed.
ANALYSIS
I. Evidence of Causation
On appeal, we construe the evidence in the light most
favorable to the party prevailing below. R. G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The commission's finding of fact on the issue of
causation will be upheld if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989); Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
Code § 65.2-400(C) provides "the condition[s] of carpal
tunnel syndrome are not occupational diseases but are ordinary
diseases of life as defined in [Code] § 65.2-401." 1 Code
1
Code § 65.2-401, "Ordinary disease of life" coverage,
reads:
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§ 65.2-401 provides that the elements required to prove a
compensable ordinary disease of life must be "established by
clear and convincing evidence, (not a mere probability)." The
narrow issue before this Court, therefore, is whether claimant
proved by "clear and convincing evidence" that her carpal tunnel
syndrome was caused by her employment.
An ordinary disease of life to which the
general pubic is exposed outside of the
employment may be treated as an occupational
disease for purposes of this [Workers'
Compensation] title if each of the following
elements is established by clear and
convincing evidence, (not a mere
probability):
1. That the disease exists and arose out of
and in the course of employment as provided
in § 65.2-400 with respect to occupational
diseases and did not result from causes
outside of the employment, and
2. That one of the following exists:
a. It follows as an incident of
occupational disease as defined in this
title; or
b. It is an infectious or contagious
disease contracted in the course of one's
employment in a hospital or sanitarium or
laboratory or nursing home as defined in
§ 32.1-123, or while otherwise engaged in
the direct delivery of health care, or in
the course of employment as emergency rescue
personnel and those volunteer emergency
rescue personnel referred to in § 65.2-101;
or
c. It is characteristic of the
employment and was caused by conditions
peculiar to such employment.
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For an ordinary disease of life to be
compensable, a claimant must prove by "clear
and convincing evidence, (not mere
probability)" that the disease (1) arose out
of and in the course of his employment, (2)
did not result from causes outside of the
employment, and (3) follows as an incident
of an occupational disease, is an infectious
or contagious disease contracted in the
course of the employment listed in Code
§ 65.2-401(2)(b), or is characteristic of
the employment and was caused by conditions
peculiar to the employment. Code
§ 65.2-401; see also Lindenfeld v. City of
Richmond Sheriff's Office, 25 Va. App. 775,
784, 492 S.E.2d 506, 510 (1997).
Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 612, 525
S.E.2d 55, 57 (2000).
We have defined "clear and convincing evidence" as:
"that measure or degree of proof which will
produce in the mind of the trier of facts a
firm belief or conviction as to the
allegations sought to be established. It is
intermediate, being 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."
National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507
S.E.2d 667, 669 (1998) (quoting Fred C. Walker Agency, Inc. v.
Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)) (emphasis
in original), aff'd, 259 Va. 271, 526 S.E.2d 266 (2000) (per
curiam).
Claimant contends the treating physician's opinion that her
pain is "related" to her work was sufficient to prove causation
between the disease and the workplace. Employer contends the
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word, "related," is not proof of causation by "clear and
convincing evidence." The commission agreed with employer,
finding that simply "relating" carpal tunnel syndrome to work
conditions was insufficient to establish by clear and convincing
evidence that claimant's work caused her disease.
Dr. Burns traced his treatment of claimant to March 31,
1993, for an injury to her left arm and shoulder "when somebody
at the toll booth grabbed her arm and about pulled her out of
the toll booth." Because of the injury and resulting surgery to
her left shoulder, Dr. Burns indicated claimant "started having
symptoms of right carpal tunnel syndrome." This condition began
in May 1994, when claimant had to use her right arm more
frequently. Dr. Burns related that claimant had "flare ups of
this off and on over the years and it became much more severe in
1999, and in 2000." He opined that this injury:
goes all the way back to her original
injury[. W]e have put a lot of stress and
strain on her right arm and over the years
she has developed carpal tunnel syndrome,
which has become worse with the type of
computer work she is now doing. I think her
pain is related to her on the job injury and
the recurrences that she had is related
[sic] back to her original injuries and
having to use the right arm more, and also
the work she is doing now, using the
computer.
The commission focused solely on Dr. Burns' use of the
word, "related," without considering the totality of his medical
opinion.
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We agree with the commission that a bare assertion that a
condition is "work-related" does not meet the "clear and
convincing" standard. The fact that a condition is "related to"
the workplace is not proof by itself of causation. However, the
evidence here includes more than a bald assertion of a
relationship between claimant's work and carpal tunnel syndrome.
While he employed the words, "related" and "related back,"
Dr. Burns explained he believed claimant's present problem with
carpal tunnel syndrome was caused by her original injury at the
toll booth. The "injury" became worse due to her constant use
of the computer in her new position. He did not merely assert
that the injury was related to her job; he explained how her
prior and present work conditions resulted in the injury.
Additionally, no evidence proved claimant had carpal tunnel
syndrome or experienced symptoms related to that condition prior
to her work for employer, and the evidence proved no causes
outside her employment contributed to that condition. In this
context, Dr. Burns' opinion could be considered clear and
convincing evidence that claimant's condition was caused by her
work.
"We will not substitute form over substance by requiring a
physician to use magic words . . . when the record is void of
any evidence of non-employment factors responsible for [the
condition]." Island Creek Coal Co. v. Breeding, 6 Va. App. 1,
11-12, 365 S.E.2d 782, 788 (1988). As Commissioner Diamond said
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in the dissent, "[t]he Commission should not require the use of
talismanic words to find causation."
We are cognizant of the standard of review. However, the
commission did not properly evaluate the evidence in this case.
Rather than viewing Dr. Burns' medical opinion in its entirety,
the commission addressed only his use of the word, "related," in
its decision. We cannot affirm a decision that emphasizes the
use of one word to the exclusion of considerations of the
context within which the word is used and other evidence in the
record.
II. Period of Disability
We now turn to the question of whether claimant is entitled
to disability from April 11, 2000, the date of surgery, until
October 2, 2000, the date when claimant returned to work. The
deputy commissioner found the medical records do not support any
period of disability. The commission did not consider
disability.
In order for us to review a decision of the commission, the
commission must make a finding, even if the deputy commissioner
previously made a factual ruling. See Goodyear Tire & Rubber
Co. v. Pierce, 5 Va. App. 374, 377, 363 S.E.2d 433, 434 (1987).
As the commission did not address claimant's appeal of the
deputy's finding that the evidence showed no period of
disability, we must remand this issue for further findings by
the commission.
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For the reasons stated above, we reverse the commission's
opinion and remand for the commission to determine if the
entirety of the medical evidence is sufficient to show
causation. The commission also must make a finding regarding
the period of disability, if causation is found.
Reversed and remanded.
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