COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
LYDIA S. HAMBLIN
MEMORANDUM OPINION **
v. Record No. 2239-01-4 PER CURIAM
DECEMBER 18, 2001
WAL-MART STORES, INC. AND INSURANCE
COMPANY OF THE STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lawrence J. Pascal; Ashcraft & Gerel, LLP,
on brief), for appellant.
(Monica L. Taylor; Gentry Locke Rakes &
Moore, on brief), for appellees.
Lydia S. Hamblin contends the Workers' Compensation
Commission erred in finding that she failed to prove that her
bilateral carpal tunnel syndrome ("CTS") constituted an ordinary
disease of life compensable under Code § 65.2-401. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
For an ordinary disease of life to be treated as a
compensable occupational disease, an employee must prove, by
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
clear and convincing evidence, to a reasonable degree of medical
certainty, that the disease arose out of and in the course of
the employment, did not result from causes outside of the
employment, was characteristic of the employment, and was caused
by the conditions peculiar to the employment. See Teasley v.
Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50, 415 S.E.2d
596, 598 (1992); see also 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, Inc. v. Lucas, 215
Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (citation omitted).
In ruling that Hamblin failed to carry her burden of proof,
the commission found as follows:
We affirm the deputy commissioner, who
concluded that [Hamblin] exaggerated her job
duties at the hearing. Dr. [Jon D.] Peters
did not have a complete and accurate
description of [Hamblin's] job duties or of
her outside activities. We therefore agree
that [Hamblin] did not carry her burden of
proof.
Moreover, the medical evidence does not
prove that any carpal tunnel condition was
caused by [Hamblin's] work activities by
clear and convincing evidence. [Hamblin's]
treating surgeon, Dr. [Paul] Mecherikunnel,
could not state that the [CTS] was caused by
the work. He did not know if there was a
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causal relationship to her work or if the
work was a primary or contributory factor to
the condition's development. This opinion
was shared by Dr. [Richard S.] Blume.
[Hamblin] primarily relies on the
opinion of Dr. Peters. However, his opinion
is not dispositive because he did not have
complete or accurate information about
[Hamblin's] work activities. The Commission
gives little weight to opinions based upon
inaccurate or incomplete histories.
As fact finder, the commission was entitled to conclude
that when Hamblin testified, she exaggerated her job duties as a
snack bar manager. It is well settled that credibility
determinations are within the fact finder's exclusive purview.
See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,
363 S.E.2d 433, 437 (1987). She testified that she worked more
hours and days than she reported to the insurer in her recorded
statement. Furthermore, her lengthy and detailed testimony
regarding her job duties was not consistent with the videotape
introduced by employer. The videotape showed a three and
one-half-hour period of time in the snack bar, including the
busy lunchtime hour. In addition, Hamblin's testimony regarding
her job duties was not consistent with her written job
description, which she did not provide to Dr. Peters.
The commission was also entitled to give little probative
weight to Dr. Peters' opinion. No evidence showed that
Dr. Peters ever reviewed Hamblin's medical records, her
deposition testimony, a written job description, or the
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videotape. Thus, the commission could infer that Dr. Peters'
opinion was not based upon a complete understanding of Hamblin's
job duties or her outside activities.
In addition, the commission viewed Dr. Peters' opinion in
light of the opinions of Drs. Mecherikunnel and Blume. "Medical
evidence is not necessarily conclusive, but is subject to the
commission's consideration and weighing." Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215
(1991). Dr. Mecherikunnel, who performed carpal tunnel release
surgery on Hamblin, could not state that Hamblin's CTS was
caused by her employment. He also noted that Hamblin's medial
nerve was not compressed during her surgery. Dr. Blume
questioned whether Hamblin actually had CTS. He noted that her
clinical symptoms and diagnostic testing did not rule out
cervical radiculopathy; that her symptoms did not improve after
her surgery; and that during the surgery the median nerve was
free throughout. Dr. Blume's opinion was based upon a review of
the medical records of Drs. Shor, Peters, Mecherikunnel and
Corporate Health Center. He also reviewed personnel records,
Hamblin's recorded statement and deposition testimony, a written
job description, and the videotape of Hamblin's job.
Based upon this record, we cannot find as a matter of law
that the evidence sustained Hamblin's burden of proof. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
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833, 835 (1970). The medical evidence was subject to the
commission's factual determination. The commission's findings
on those facts are binding and conclusive on appeal. Id.
Because we affirm the commission's decision that Hamblin
failed to prove that her CTS constituted a compensable ordinary
disease of life, it is not necessary for us to address whether
Hamblin proved that she adequately marketed her residual work
capacity.
Affirmed.
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