COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
GREAT EASTERN RESORT CORPORATION AND
LIBERTY INSURANCE COMPANY
OPINION BY
v. Record No. 1682-99-3 JUDGE SAM W. COLEMAN III
FEBRUARY 29, 2000
PAMELA GORDON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, P.C., on brief), for
appellants.
No brief or argument for appellee.
Great Eastern Resort Corporation and its insurer, Liberty
Insurance Company, appeal the Workers' Compensation Commission's
decision awarding Pamela Gordon temporary total disability
benefits. Great Eastern argues the commission erred in finding
that Gordon proved by clear and convincing evidence, as required
by Code § 65.2-401, that her right carpal tunnel syndrome was
caused by her employment. We disagree and affirm the
commission's decision.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to Gordon, the party prevailing before the commission. See R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). So viewed, the evidence proved that Gordon
worked for Great Eastern as a night auditor. As an auditor, she
used her right hand to input the day's revenue and room charges
on a machine called a "micro." The micro is a computerized cash
register with a keyboard for entering data and a slot for
entering invoices or "folios."
Gordon worked for Great Eastern eight hours per day, three
days per week for seven and one-half years. Gordon testified
that she operated the micro between one and three hours per
shift, depending on how busy the resort was on a given day. She
testified that due to the set-up of the work station, she was
required to place her right hand at a forty-five degree angle
while using her fingers to key in the data. She also fed
vouchers and folios into the micro with her left hand.
In January 1997, Gordon first noticed numbness in her
fingers and pain in her right wrist. In January 1998, she
sought medical treatment from her regular physician, Dr. Raul
Orviedo, for complaints of a herniated disc in her neck. She
also reported wrist pain to Dr. Orviedo, who ordered that she
undergo an MRI due to his concern that her symptoms might be
related to her neck condition. After reviewing the MRI, Dr.
Orviedo referred claimant to Dr. John A. Jane, Sr., a
neurosurgeon.
Dr. Jane opined that the numbness in Gordon's hand and arm
was not related to her neck problem and referred Gordon to Dr.
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Edward R. Laws, Jr., a neurosurgeon, for another opinion. In a
May 22, 1998 letter to Dr. Jane, Dr. Laws diagnosed Gordon with
carpal tunnel syndrome. Dr. Laws noted that Gordon's
"day-to-day work involves using an instrument called a 'micros'
which is a type of computerized cash register. She has
repetitive movements that have precipitated and aggravated the
carpal tunnel syndrome, with which she presently presents."
On June 23, 1998, after operating on Gordon's right hand,
Dr. Laws wrote that "[h]er symptoms developed and became
aggravated as she was using . . . an instrument called a micros,
which I understand is a computerized cash register. This type
of hand problem is commonly associated with this type of
repetitive occupational trauma."
Gordon denied engaging in any hobbies or activities outside
of her employment involving repetitive movements of her right
hand. She admitted she had a long history of smoking two packs
of cigarettes per day and stated that she told Dr. Laws' nurse
of this history. Gordon denied having been diagnosed with
carpal tunnel syndrome before May 1998.
ANALYSIS
"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). We accept the commission's factual findings
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when they are supported by credible evidence. See James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989).
Since 1997, the Code has provided that "'condition[s] of
carpal tunnel syndrome are not occupational diseases but are
ordinary diseases of life as defined in [Code] § 65.2-401.'"
National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507
S.E.2d 667, 669 (1998). 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 Lindenfield v. City of Richmond Sheriff's Office, 25 Va.
App. 775, 784, 492 S.E.2d 506, 510 (1997). However, disability
resulting from work-related aggravation of a pre-existing disease
is not compensable. See Ashland Oil Co. v. Bean, 225 Va. 1, 3-4,
300 S.E.2d 739, 740 (1983) (per curiam).
"Clear and convincing evidence has been
defined 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
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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, 28 Va. App. at 654, 507 S.E.2d at 669 (citations
omitted).
The employer contends that based on Dr. Laws' reports and
opinions Gordon's carpal tunnel syndrome necessarily pre-existed
the repetitive motion at work. The employer reasons that
because Dr. Laws stated, "the symptoms developed and became
aggravated as she was using . . . an instrument called a
micros," and because he used the terminology "precipitated" and
"aggravated" to describe the development of Gordon's condition,
the condition had to pre-exist in order to be "aggravated" or
precipitated. Thus, the employer argues, relying upon the
holding in Ashland Oil, the aggravation of a pre-existing
disease is not compensable. The employer further argues that,
at best, Dr. Laws' report as to causation is ambiguous and
equivocal and is not sufficient to satisfy the claimant's burden
under Code § 65.2-401 of proving by clear and convincing
evidence that this ordinary disease of life was causally related
to her work. We find that the commission's decision is
supported by credible evidence and that the proof satisfies the
clear and convincing standard.
Dr. Laws' opinion and Gordon's testimony constitute
credible evidence to support the commission's findings that
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Gordon's repetitive motion at work was the cause of her right
carpal tunnel syndrome and that the disease did not pre-exist
her repetitive motion at work. "Carpal Tunnel Syndrome is
defined as: a complex of symptoms resulting from compression of
the median nerve in the carpal tunnel, with pain and burning or
tingling paresthesias in the fingers and hand, sometimes
extending to the elbow." Dorland's Illustrated Medical
Dictionary 1289 (26th ed. 1985). Based upon Dr. Laws'
statements in his May 22, 1998 and June 23, 1998 letters, the
commission reasonably found that "claimant's employment was the
'precipitating' factor which caused [her carpal tunnel syndrome]
to 'develop.'" "Precipitate" is defined as "to cause to move or
act very rapidly"; "to cause to happen or come to a crisis
suddenly or unexpectedly." Webster's Third New International
Dictionary 1784 (1993). On this record, the commission could,
and obviously did, find that Dr. Laws' use of the terms
"precipitated" or "aggravated" did not indicate that Gordon had
a pre-existing disease. Rather, the commission found that his
use of the terminology described the effect that the repetitive
motion at work had upon causing or "precipitating" or
"aggravating" the disease process to the median nerve.
Significantly, no evidence proved that Gordon had carpal tunnel
syndrome or experienced symptoms related to the disease prior to
her work and no evidence proved that any causes outside her work
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contributed to cause the condition. Furthermore, no evidence
proved that carpal tunnel syndrome is a condition which may lie
dormant and only become symptomatic when external aggravating
factors are brought to bear.
"Where reasonable inferences may be drawn from the evidence
in support of the commission's factual findings, they will not
be disturbed by this Court on appeal." Hawks v. Henrico County
Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
Based upon Dr. Laws' opinions and Gordon's testimony, the
commission, as the trier of facts, could conclude that the
evidence proved clearly and convincingly that (1) the repetitive
trauma at work caused the right carpal tunnel syndrome and (2)
that prior to the repetitive trauma at work, Gordon did not have
right carpal tunnel syndrome and did not engage in repetitive
activity outside work that caused or contributed to cause the
development of this ordinary disease of life.
For these reasons, we affirm the commission's decision.
Affirmed.
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