Agnes V Lanning v. Virginia Dept of Transportation

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia

AGNES V. LANNING

v. Record No. 1795-02-1

VIRGINIA DEPARTMENT OF TRANSPORTATION MEMORANDUM OPINION * BY
JUDGE ROBERT P. FRANK
FEBRUARY 19, 2003
VIRGINIA DEPARTMENT OF TRANSPORTATION

v. Record No. 1812-02-1

AGNES V. LANNING

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

John R. Lomax (Berry, Ermlich, Lomax &
Bennett, on briefs), for Agnes V. Lanning.

Cheryl A. Wilkerson, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Judith Williams Jagdmann, Deputy Attorney
General; Edward M. Macon, Senior Assistant
Attorney General, on briefs), for Virginia
Department of Transportation.

The Virginia Department of Transportation (employer)

contends the Workers' Compensation Commission (commission) erred

in finding (1) Agnes V. Lanning (claimant) proved her right

carpal tunnel syndrome (CTS) was caused by her employment and

constituted a compensable ordinary disease of life, pursuant to

Code § 65.2-401, and (2) claimant was entitled to temporary

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
total disability benefits from April 11 through April 13, 2000

and from August 29 through September 8, 2000. On cross-appeal,

claimant contends the commission erred in (1) failing to

consider evidence that she received short-term disability

benefits from April 11, 2000 through October 2, 2000, (2)

finding she failed to prove she was totally disabled from April

11, 2000 through October 2, 2000 as a result of her compensable

CTS, and (3) holding claimant responsible for $1,000 in

attorney's fees. We find the commission did not err, and we

affirm the commission's decision.

A. Causation

On appeal, we view 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

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).

Code § 65.2-400(C) provides that "[h]earing loss and the

condition of carpal tunnel syndrome are not occupational

diseases but are ordinary diseases of life as defined in

§ 65.2-401." The Code allows compensation for CTS as an

ordinary disease of life:

if each of the following elements is
established by clear and convincing
evidence, (not a mere probability):
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 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
. . . ; or

c. It is characteristic of the employment
and was caused by conditions peculiar to
such employment.

Code § 65.2-401.

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, 161 Ohio St. 469, 120
N.E.2d 118, 123 (1954)).

Lee County Sch. Bd. v. Miller, 38 Va. App. 253, 259-60, 563

S.E.2d 374, 377 (2002) (ellipsis in original).

Claimant originally worked as a toll booth attendant for

employer until a workplace injury involving her left shoulder in

1992. She began doing computer data entry for employer in 1994.

Her CTS symptoms worsened during that employment, eventually

becoming acute on February 25, 2000 when she could not move her

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fingers. Dr. Frank Burns, the treating physician, explained in

a 2001 letter:

[W]hen she could not use her left arm and
all [after the 1992 workplace injury], she
started having symptoms of right carpal
tunnel syndrome. My first note on this goes
back to May 1994, when she was still having
to use her right arm more. She has had
flare ups of this off and on over the years
and it became much more severe in 1999, and
in 2000, I did a carpal tunnel release
because it had gotten so bad. She was back
at a different type of work then, using a
computer 8 hours a day, and the right carpal
tunnel became much worse.

* * * * * * *

From reviewing this whole chart, this lady's
injury goes all the way back to her original
injury, we 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 has had is [sic]
related back to her original injuries and
having to use the right arm more, and also
the work she is doing now, using the
computer.

Claimant also testified regarding her CTS. She explained

she had recurring numbness in her right hand which culminated in

the February 25th incident during which she could not move her

fingers. Her CTS was more painful during the day than in the

evening. She explained she averaged six hours a day working on

a computer. Although she had a computer at home, she used it

"very – very seldom," explaining she "didn't want to look at it"

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after a day at work. She did not knit, garden, or use hand

tools at home.

The commission reviewed the entirety of the medical

evidence, including records and letters from Dr. Burns. The

commission concluded:

We believe that the evidence, as a whole,
points to the claimant's work as the cause
of her condition. Dr. Burns provided the
necessary medical corroboration that her
condition was the result of her employment,
and there was no evidence of any
non-employment factors causing her
condition. Thus, we agree with the deputy
commissioner that the claimant met her
burden of proof under Code § 65.2-401 and
established that she had compensable right
carpal tunnel syndrome.

Dr. Burns's records and opinions, coupled with claimant's

testimony, constitute credible evidence that claimant's

employment caused her right CTS under the criteria established

by Code § 65.2-401. 1 In context, Dr. Burns clearly intended the

word "related" to indicate causation. As we noted in the

earlier appeal of this case, Dr. Burns did not merely use

"related" to explain the connection between complainant's work

and her injury, he also explained how her work place caused the

1
Employer suggests on appeal that the claim should have
been filed as a change of condition developing, in part, out of
claimant's earlier compensable workplace injury. Employer did
not make this argument on causation to the commission, and we
will not consider it on appeal. See Rule 5A:18; Clark v.
Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262
(1999).
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injury. Lanning v. Virginia Dept. of Transp., 37 Va. App. 701,

708, 561 S.E.2d 33, 36-37 (2002).

Even if the medical evidence did not provide clear and

convincing evidence regarding the cause of claimant's right CTS,

"the commission may rely on the testimony of the claimant to

establish this link." Lee County Sch. Bd., 38 Va. App. at 260,

563 S.E.2d at 378. See also Dollar Gen. Store v. Cridlin, 22

Va. App. 171, 177-78, 468 S.E.2d 152, 154-55 (1996) (explaining

medical evidence is not required for a finding of causation).

Claimant testified she worked six hours a day at a computer, and

her hand was more painful at work. Based on her testimony

regarding her activities outside of work, the commission found

nothing she did outside of work contributed to her CTS.

Employer argues Dr. Burns's opinion should be interpreted

to conclude that claimant's 1992 injury was the actual cause of

her CTS, not her work beginning in 1994. Therefore, employer

claims, her current working conditions were not the clear and

convincing cause of her CTS, and the injury is not compensable.

Employer contends claimant's current working conditions "merely

aggravated, exacerbated or contributed to" her CTS, citing

Pollard v. Reynolds Metals Co., VWC File No. 189-80-34 (Dec. 2,

1998), as "precedent."

This Court has stated many times that Code § 65.2-401 does

not require a claimant prove one single source for an ordinary

disease of life, but instead must link the disease to a primary
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source arising out of working conditions. See Lee County Sch.

Bd., 38 Va. App. at 261, 563 S.E.2d at 378; Piedmont Mfg. Co. v.

East, 17 Va. App. 499, 506-07, 438 S.E.2d 769, 774 (1993); Ross

Labs. & Associated Indem. Corp. v. Barbour, 13 Va. App. 373,

378-79, 412 S.E.2d 205, 208-09 (1991). The record supports the

commission's finding on this issue.

Dr. Burns indicated that, after her 1992 injury to her left

shoulder and arm, claimant began favoring her right side.

Nothing in the record suggests claimant's right CTS directly

resulted from her left shoulder injury in 1992. Rather, the

evidence indicates claimant began to favor her right side as a

result of the earlier injury. Dr. Burns stated that, at the

time her CTS became acute, "[s]he was back at a different type

of work then, using a computer 8 hours a day." Claimant also

testified that her condition was worse at work.

While her 1992 injury probably had some role in the

development of claimant's CTS, that injury was not the primary

source of the disease. The evidence, viewed in the light most

favorable to claimant, proves claimant's data entry job was the

primary cause of her right CTS. Accordingly, we defer to the

commission's factual finding that claimant proved by clear and

convincing evidence that her CTS constituted a compensable

ordinary disease of life.

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 B. Disability Period

The commission found claimant sustained a short period of

disability after each of the two operations to relieve her CTS.

On appeal and cross-appeal, claimant and employer challenge this

finding.

No direct evidence from her doctor proved claimant was

restricted from all work because of these operations. However,

the commission, acting as fact finder, could infer from the

medical records that claimant had shown a period of total

disability beginning with the date of each surgery through the

first post-operative follow-up visit. Given the type of surgery

and the claimant's working conditions, this inference was

reasonable.

Additionally, we cannot find the commission erred in

failing to determine claimant's period of disability was longer.

No evidence before the commission suggested a longer period of

disability. 2

"The threshold test of compensability is whether the

employee is 'able fully to perform the duties of his preinjury

employment.' Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284

S.E.2d 605, 607 (1981)." Celanese Fibers Co. v. Johnson, 229

2
Claimant argues the commission refused to consider
additional evidence supporting a longer disability period.
Claimant also argues employer was precluded from arguing about
the disability period. We address these arguments in Section C,
below. We note the only evidence supporting claimant's extended
period of disability is found in the excluded documents.
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Va. 117, 120, 326 S.E.2d 687, 690 (1985). Claimant was asked at

the hearing, "Now, what dates were you out of work as a result

of this carpal tunnel syndrome?" She answered she "had surgery

on April 11, and returned to work October 2." This statement

proves claimant was not working between these dates, but does

not prove she was unable to work at her preinjury employment.

"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).

Accordingly, we will not disturb the commission's finding on

appeal.

C. Evidence of Disability Benefits

Claimant argues the commission improperly refused to

consider evidence that claimant received short-term disability

benefits from employer and that claimant's physician said she

could not work for three weeks after the surgery. She claims

employer's discovery responses prevented any argument against

her claimed period of disability because the disability period

was not listed as a contested issue in the discovery responses.

At the conclusion of the initial hearing, the deputy

commissioner asked, "Any reason to keep the record open?"

Claimant responded, "No, sir." Claimant also indicated that the

deputy had "all the medicals." However, together with her

letter requesting review by the full commission, claimant
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presented several new documents for consideration by the

commission.

Rule 3.3 of the Rules of the Virginia Workers' Compensation

Commission allows consideration of after-discovered evidence by

the full commission either by agreement of the parties or upon

petition to reopen or receive after-discovered evidence.

Neither of these conditions was met.

Employer did not agree to these submissions by the

claimant. Instead, claimant submitted these documents with her

letter requesting review by the full commission. Claimant

contends this letter complied with Rule 3.3.

This letter, however, did not explicitly ask the commission

to reopen the record. The letter also did not address the

burdens placed on a party requesting the reopening of a record. 3

As claimant does not address these issues on appeal, either, we

do not consider her argument for purposes of this review. See

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239

3
The party seeking to reopen the record must prove:

(1) the evidence was obtained after the
hearing; (2) it could not have been obtained
prior to the hearing through the exercise of
reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and
(4) it is material and should produce an
opposite result before the commission.

Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
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(1992) ("Statements unsupported by argument, authority, or

citations to the record do not merit appellate consideration.

We will not search the record for errors in order to interpret

the appellant's contention and correct deficiencies in a

brief."). We find the commission did not err in failing to

consider these documents.

Claimant also maintains employer cannot argue against her

claimed disability period. She claims employer was precluded

from arguing this point because employer did not contest the

disability period in the discovery responses. In effect, she

argues these responses estopped employer from arguing this issue

and amounted to a stipulation regarding the disability period.

The commission correctly applied the law by finding

claimant had to establish each and every element of her claim,

including her alleged period of disability. See Marshall Erdman

& Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149-50

(1997) ("[A] party seeking compensation bears the burden of

proving his disability and the periods of that disability.").

Discovery responses did not change this burden. As stated in

Code § 65.2-700, "All questions arising under this title, if not

settled by agreements of the parties interested therein with the

approval of the Commission, shall be determined by the

Commission . . . ."

Discovery in workers' compensation cases is regulated by

Code § 65.2-703 and the rules promulgated in accordance with
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that section. Claimant identifies several of these rules of

discovery. However, none of those rules requires the commission

make a finding without evidence to support it.

In interrogatories, claimant asked for "all defenses and

facts upon which the carrier will rely in denying this claim."

Claimant did not ask for admissions, as allowed under Rule

1.8(A). Employer responded to the interrogatories, stating it

would rely on a defense of cumulative trauma and failure to meet

the criteria for compensable occupational disease. The period

of disability was not mentioned specifically. However, this

failure did not relieve claimant of the burden of proving the

period of disability.

As this Court recently pointed out in Arvizu v. Gold, 38

Va. App. 641, 647-48, 567 S.E.2d 592, 595 (2002), failure to

respond to discovery can be penalized, but not without clear

authority for such a penalty. The commission could choose, in

some circumstances, to exclude evidence when a party fails to

disclose information during its discovery responses. See

Griffett v. Ryan, 247 Va. 465, 469, 443 S.E.2d 149, 151 (1994).

However, we find no authority for the proposition that a

deficiency in discovery responses relieves a claimant of its

burden of proof. Employer, therefore, was free to argue the

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burden was not met, 4 and the commission was free to find the

burden was not met.

D. Attorney's Fees

Claimant argues the commission abused its discretion by

requiring her to pay $1,000 in attorney's fees when the

disability benefits awarded by the commission totaled

approximately half that amount. Claimant did not raise this

argument before the commission. Thus, she failed to give the

commission the opportunity to correct any alleged error. This

Court previously has held:

We recognize that [appellant] was unaware of
this alleged problem until the commission
issued its written opinion and could not
have raised the issue prior to that point,
but we see no reason why [appellant] could
not have given the commission an opportunity
to correct this alleged error prior to
appeal.

Overhead Door Co. v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d 535,

539 (1999). Thus, we will not review this issue on appeal. See

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998).

Finding no error, we affirm the commission's decision.

Affirmed.

4
Claimant does not argue employer attempted to introduce
information during the hearing that was not disclosed through
discovery.
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