COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
SANDRA S. BURRESS
MEMORANDUM OPINION* BY
v. Record No. 2345-01-3 JUDGE LARRY G. ELDER
APRIL 2, 2002
HUBBELL LIGHTING, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph J. Steffen, Jr., for appellant.
John Chadwick Johnson (Christopher M. Kite;
Catherine I. Henritze; Frith Anderson &
Peake, P.C., on brief), for appellee.
Sandra S. Burress (claimant) appeals from a decision of the
Workers' Compensation Commission (the commission) holding that
her employer, Hubbell Lighting, Inc. (employer), was not
responsible under the Workers' Compensation Act for her
bilateral carpal tunnel syndrome. On appeal, claimant contends
she presented sufficient credible evidence to prove her disease
was compensable under Code § 65.2-401 and that the commission's
reliance on the opinion of employer's "hired gun" on the issue
of causation was erroneous. We hold the commission was entitled
to conclude that claimant presented insufficient credible
evidence to prove her employment was the primary source of her
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
carpal tunnel syndrome. Thus, we affirm the commission's denial
of benefits.
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, 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
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 . . . ."
Code § 65.2-400(B) (emphases added). In determining whether a
disease was caused by the employment, we have recognized that
"pinpointing a single source for an ordinary disease of life
will often be a difficult if not an impossible assignment."
Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208
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(1991). Thus, we 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 sources, but to the primary source . . . ." Id.; see
Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544,
551, 425 S.E.2d 525, 530 (1993).
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, 15 Va. App. at 551, 425 S.E.2d at 530.
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's evidence sustained 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.
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Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
Claimant offered expert opinions from two physicians,
Drs. Rollin J. Hawley and Kerry B. Donnelly, neither of which
the commission found sufficient to meet claimant's burden of
proving causation by clear and convincing evidence.
Dr. Hawley, a neurologist, appears to have seen claimant on
only one occasion, in January 2000 when claimant's internist
referred her for the nerve conduction studies which confirmed
her bilateral carpal tunnel syndrome (CTS). Dr. Hawley opined
at that time that claimant's CTS was "probably mostly
occupational, although her obesity might be contributing." He
appeared subsequently to indicate, in responding to a letter
from claimant's attorney, that he agreed her "repetitive work
duties were the primary cause of her development of [CTS]" and
that her obesity was a contributing factor. However, he agreed
with this assertion "to a reasonable degree of medical
probability," whereas Code § 65.2-401 requires more than "a mere
probability." Further, the record contains no indication that
Dr. Hawley had any awareness of claimant's job requirements,
other than the fact that she sometimes used power tools at work.
The record also contains no indication Dr. Hawley was fully
aware of claimant's other medical conditions. Although he
mentioned her thyroid condition and described it as "stable," he
was unaware of the dosage of medication she took for that
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condition and apparently also was unaware of the results of her
most recent thyroid function test. Finally, he did not mention
her ongoing amenorrhea or possible early menopause, conditions
documented in claimant's other medical records.
Dr. Donnelly, an orthopedic surgeon, opined when he first
saw claimant on April 27, 2000, merely that her CTS was "work
related" because "[s]he uses an air gun at work." After
Dr. Donnelly reviewed claimant's job description and her medical
history, he continued to believe her CTS was "certainly work
related and aggravated by her work activities." However, the
most he could say was that it was "highly probable" that
claimant's work activities were "one of the major factors" in
causing her CTS. He noted that although most of claimant's work
would be done with claimant's dominant right hand, claimant's
nerve conduction studies showed similar median neuropathy in
both hands. Further, he indicated claimant's history of
hypothyroidism, amenorrhea and possible "early menopause," and
he noted all of these conditions "can be associated with the
development of [CTS,] particularly thyroid imbalance."
Dr. Darrell Powledge reviewed claimant's case at the
request of employer. Dr. Powledge had practiced occupational
medicine for 14 years and indicated that "[e]stablishing whether
or not a medical disorder has been caused by one's occupation is
a common task we undertake in this specialty." Dr. Powledge
also explained that his masters thesis involved designing an
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assessment tool for evaluating whether particular jobs posed a
risk for the development of CTS. Dr. Powledge did not examine
claimant but reviewed her medical records, deposition and a
videotape of her job, and he visited claimant's job site, where
he performed some of her job tasks under the direction of her
supervisor.
Dr. Powledge explained that in order for repetitive work to
cause CTS, the repetition must be "accompanied by grip of
sufficient force" and that vibration and cold contribute to the
development of CTS only indirectly by causing one to increase
grip strength. He noted it is "imperative" that each hand be
assessed individually for exposure to these forces because "[i]t
is unusual for each hand to be exposed to the same amount of
work." He described in detail the physical motion and grip
strength required for claimant's job and evaluated its ability
to cause CTS using what he described as a "well respected"
methodology called the "strain index." He opined that the
"strain index" was "the most objective analytical tool for
evaluating jobs for the risk they pose for the development of
upper extremity disorders."
Using this methodology, Dr. Powledge opined that claimant's
job "does not present the physical factors that can be causative
of CTS in sufficient magnitude to be causative of CTS." In
addition to Dr. Powledge's own analysis of claimant's job
requirements, he referred to her deposition, which he
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characterized as "stat[ing] that [claimant] used her right hand
predominantly at work especially with the air tool which she
implicated as being very stressful." However, he noted
claimant's additional statement that "her symptoms are equally
bad in both hands," a fact confirmed by the results of her nerve
conduction studies, which indicated moderately severe CTS in
both hands. Dr. Powledge concluded, based on claimant's
description of her job, his analysis of claimant's job, and the
bilateral nature of her CTS, "that the job was not a risk for
the development of CTS in either hand."
Dr. Powledge noted claimant had several other conditions,
amenorrhea/menopausal symptoms, obesity, hypothyroidism
requiring treatment, and fluid retention, all of which have been
shown to be causative of, associated with, or associated with
the increased risk of development of CTS. He opined, "with far
more than a reasonable degree of medical certainty[,] that
[claimant's] bilateral [CTS] was not caused by her work" for
employer.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Thus, the commission was entitled to
conclude, as it did, that "claimant's evidence falls far short
of the clear and convincing standard required by Code
§ 65.2-401" and that Dr. Powledge's opinion was "extremely
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persuasive." Dr. Hawley related claimant's CTS to her work only
to a reasonable degree of medical probability, which does not
amount to clear and convincing evidence as required by the
statute. See Code § 65.2-401. Further, as the commission
noted, Dr. Hawley qualified his opinion on causation by noting
other contributing factors such as obesity, and as outlined
above, the commission was entitled to conclude Dr. Hawley
demonstrated an insufficient familiarity with claimant's job
requirements and additional medical history. As the commission
further noted, Dr. Donnelly opined that "claimant's job was just
one of the major factors" causing her CTS, a "statement [which]
implies the existence of other[] major factors in the
development of the condition." Dr. Donnelly in fact
acknowledged that claimant's hypothyroidism and "early
menopause" were both conditions which could be associated with
the development of CTS. Thus, the commission was entitled to
conclude Dr. Donnelly's opinion did not establish, as required
by both the language of Code § 65.2-400(B)(3) and Marcus, that
claimant's work was "the proximate cause" or "the primary
source" of her CTS.
In addition to the weaknesses in claimant's own evidence,
the commission found highly credible the opinion of
Dr. Powledge. It emphasized that Dr. Powledge was
board-certified in occupational medicine, had extensively
studied CTS and the relationship between workplace activities
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and the development of CTS, and had carefully considered the
physical requirements of claimant's work for employer. It found
well reasoned, as it was entitled to do, Dr. Powledge's opinion
that claimant's job, which primarily required the use of her
right hand, "was not a risk factor" in the development of CTS
and that claimant's amenorrhea, menopausal symptoms, obesity,
hyperthyroidism and fluid retention were conditions which could
be causative of her CTS.
We note, however, that neither our decision nor the
commission's compels the conclusion that an expert must perform
or visualize a job firsthand or by video in order to render a
credible medical opinion. We also note Dr. Powledge's admission
that the "strain index" is only "semiquantitative." We view the
"strain index" as a highly subjective methodology in light of
Dr. Powledge's use of vague terms not defined in his report,
such as "light" to describe the "intensity of exertion," "small"
to describe the "duration of grip as a percentage of the work
cycle," and "good to very good" to describe "wrist posture."
Finally, we note, as the deputy commissioner did, that the task
of making the ultimate finding regarding causation remains with
the commission and the Courts and not with medical personnel.
The fact that we may have reached a contrary conclusion
regarding Dr. Powledge's testimony is immaterial in view of the
commission's finding that the opinions of Drs. Hawley and
Donnelly were insufficient to meet claimant's burden of proving
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causation by clear and convincing evidence. Because we cannot
say as a matter of law that claimant sustained her burden of
proof, we affirm.
Affirmed.
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Sandra S. Burress v. Hubbell Lighting, Inc.
Combined Opinion