COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Koontz * and Willis
Argued at Salem, Virginia
VANITY FAIR CORPORATION
v. Record No. 1734-94-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
MELISSA MONGER SEPTEMBER 12, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, P.C., on briefs), for
appellant.
A. Thomas Lane Jr., for appellee.
Vanity Fair Corporation and Wrangler (employers) appeal the
decision of the Workers' Compensation Commission awarding Melissa
Monger temporary total disability benefits from August 19, 1993.
The employers contend that no credible evidence supports the
commission's finding that Ms. Monger suffered a compensable
occupational disease under Code § 65.2-400. We agree and reverse
the decision of the commission.
On June 2, 1993, Ms. Monger began work on Wrangler's
production line. She performed several jobs, including: placing
bands on jeans using her left hand to push the fabric through the
machine; putting rivets on jeans with her right hand and placing
buttons with her left; buttoning the jeans; and zipping the jeans
using a pincer motion with her left thumb and index finger.
*
Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
"When [she] was putting [her] rivets on [on July 26, 1993 her]
fingers (sic) swelled and a knot popped out in it and [she] went
and turned it in as an accident. . . . [She] done the jobs all
the way up to the rivets and [she] put the rivets on the jeans
and when [she] buttoned the pants and zipped them up, that's when
[her] finger started bothering [her]."
Ms. Monger reported the swelling and stiffness to her
supervisor. The next day, she sought treatment from her family
physician, Dr. Prager. Dr. Prager diagnosed the swelling as
"inflammatory cyst [secondary] to repetitive trauma." He
referred Ms. Monger to Dr. Frederick L. Fox, an orthopedist. On
August 19, 1993, Dr. Fox diagnosed her as having a "cyst of left
index finger, compatible with a traumatic type episode." He
placed her on medication and limited the use of her hand.
Because she was unable to perform her regular job, Ms. Monger
requested light duty work, but none was available. On September
20, 1993, she filed a claim for benefits.
On December 21, 1993, Ms. Monger's attorney mailed Dr. Fox a
questionnaire, including the following two questions:
(1) To within a reasonable degree of medical certainty,
would it be your opinion that the repetitive nature of
Ms. Monger's job at Wrangler directly resulted in her
left index finger injury?
* * * * * * *
(4) Could you please state whether the above noted
condition would, in medical terminology, be considered
a disease which is related to the claimant's
occupation?
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Dr. Fox responded "Yes" to both questions.
The deputy commissioner denied Ms. Monger's claim for
benefits. He found that she had not proved an injury by accident
or "that her symptoms are the product of a disease or a disease
process." He concluded that she "suffered from symptoms produced
by cumulative trauma."
The full commission reversed the deputy commissioner's
decision. Addressing the issue of whether Ms. Monger's condition
was a disease, Merillat Industries, Inc. v. Parks, 246 Va. 429,
436 S.E.2d 600 (1993), the commission held:
The medical evidence on this issue comes from
Dr. Fox's responses to inquiries from
claimant's counsel. While the first question
posed by the attorney uses the term "injury,"
the final question asked, "Could you please
state whether the above noted condition
would, in medical terminology, be considered
a disease which is related to the claimant's
occupation?" The doctor responded yes.
Although there is initial reference by the
doctor on August 19, 1993, to a traumatic
injury, this is not inconsistent with the
development of a disease.
We therefore find that the condition is a
disease.
Finding that the disease resulted from Ms. Monger's job, the
commission awarded her benefits.
Upon appellate review, the commission's findings of fact
will be upheld if they are supported by credible evidence. James
v. Capitol Steel Construction Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488-89 (1989). "A question raised by conflicting
medical opinion is a question of fact." City of Norfolk v.
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Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246 (1992). We
view the evidence in the light most favorable to the party
prevailing below, and "the fact that contrary evidence may be
found in the record is of no consequence if credible evidence
supports the commission's finding." Bean v. Hungerford
Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d 762, 764
(1993). However, to be upheld, the commission's holding must
find support in the record.
To be compensable as an occupational disease, a condition
must first qualify as a disease. Merillat, 246 Va. at 432, 436
S.E.2d at 601. A disease is defined as:
Any deviation from or interruption of the normal
structure or function or any part, organ, or system (or
combination thereof) of the body that is manifested by
a characteristic set of symptoms and signs and whose
etiology, pathology, and prognosis may be known or
unknown.
Piedmont Mfg. Co. v. East, 17 Va. App. 499, 503, 438 S.E.2d 769,
772 (1993) (quoting Sloane-Dorland Ann. Medical-Legal Dictionary
209 (1987)). However, for purposes of the Workers' Compensation
Act, the definition of "disease" cannot be "so broad as to
encompass any bodily ailment of whatever origin." Merillat, 246
Va. at 433, 436 S.E.2d at 601.
An injury is "an obvious sudden mechanical or
structural change in the body." A disease is a
condition, which may arise from any number of causes,
including trauma, that impairs the function of the body
or any part thereof. The distinction between injury
and disease lies in the "obvious sudden mechanical or
structural" aspect of injury.
Perdue Farms, Inc. v. McCutchan, ___ Va. App. ___, ___, ___
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S.E.2d ___, ___ (1995) (citation omitted).
Dr. Fox gave contradictory opinions as to whether Ms. Monger
suffered from a disease. On August 19, 1993, he diagnosed her as
having a cyst on her left index finger due to the repetitive
nature of her work and compatible with trauma. In three
subsequent examinations, Dr. Fox never classified the cyst as a
disease. Only in response to the questionnaire sent by Ms.
Monger's attorney, suggesting that the cyst was a disease, did
Dr. Fox answer, "yes." However, this question was couched in
terms of causation. This single, ambiguous answer is
insufficient to overcome explicit, repeated, and uncontradicted
medical evidence that the cyst, a sudden obvious mechanical
change in the body, was not a disease but an injury caused by the
repetitive trauma of Ms. Monger's job. Repetitive trauma
injuries are not compensable under the Workers' Compensation Act.
Merillat, 246 Va. at 433, 436 S.E.2d at 602.
The judgment of the commission is reversed.
Reversed.
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Koontz, J., concurring in result.
For the reasons more fully stated in my dissent in Perdue
Farms, Inc. v. McCutchan, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (1995) (Koontz, J., dissenting), I would reverse the decision
of the commission.
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