COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
JERRY S. MILLER
MEMORANDUM OPINION* BY
v. Record No. 0997-00-3 JUDGE ROBERT P. FRANK
DECEMBER 5, 2000
REYNOLDS METALS COMPANY AND
ACE AMERICAN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John P. Vita (Mann & Vita, P.C., on brief),
for appellant.
(Patricia C. Arrighi; Taylor & Walker, P.C.,
on brief), for appellees. Appellees
submitting on brief.
Jerry S. Miller (claimant) contends the Workers'
Compensation Commission (commission) erred in: 1) finding he
received a diagnosis of work-related bilateral carpal tunnel
syndrome on October 31, 1996, which thereby barred his claim for
benefits under Stenrich v. Jemmott, 251 Va. 186, 199, 467 S.E.2d
795, 802 (1996), 2) finding that his statement to the insurance
carrier's representative on November 8, 1996 indicated a clear and
understandable diagnosis of work-related bilateral carpal tunnel
syndrome, which thereby barred his claim for benefits under
Jemmott, and 3) failing to consider principles of equity,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairness and public policy. Finding no error in the
commission's decision, we affirm.
I. BACKGROUND
Claimant has been involved in welding, pipefitting and
fabricating metal for thirty-two years. Claimant has been
employed as a maintenance mechanic with Reynolds Metals Company
(employer) for twelve years. Claimant performed these tasks
using both hands repetitively for forty-hour work weeks, eight
hours per day. Throughout his career, claimant used repetitive
motion tools such as drills, grinders, saws, hand-wrenches and
pipe-wrenches. He did not engage in any activities outside his
employment that required the repetitive use of his hands.
Claimant began experiencing tingling and numbness in both
hands sometime in October 1996. Employer referred claimant to
Dr. Kent Diduch. Dr. Diduch advised claimant that he might have
carpal tunnel syndrome but that his problems could also be
vascular. After consulting with Dr. Diduch, claimant feared
that the complaints were related to his heart. Dr. Diduch only
saw claimant on one occasion and never diagnosed him with carpal
tunnel syndrome.
Claimant then consulted with Dr. James VanKirk. Dr.
VanKirk also considered carpal tunnel syndrome as the possible
cause of claimant's complaints but advised claimant that his
smoking habit could be a factor. Dr. VanKirk saw claimant on
just one occasion and did not render a diagnosis. Dr. VanKirk
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referred claimant to Dr. Edward Hemphill, an orthopedic
physician.
Claimant first saw Dr. Hemphill on October 14, 1996. Dr.
Hemphill suspected carpal tunnel syndrome as the cause of
claimant's problems but withheld a firm diagnosis pending the
results of an EMG. Dr. Peter Puzio performed an EMG on October
22, 1996, which confirmed that claimant suffered from bilateral
carpal tunnel syndrome. Although claimant described his work
history to Dr. Hemphill, he testified that Dr. Hemphill did not
advise him at that time that the carpal tunnel syndrome was
related to his employment. In fact, claimant testified that he
only learned that the carpal tunnel syndrome was related to his
employment in Dr. Hemphill's letter of December 3, 1998.
Employer filed an Employer's First Report of Accident on
November 5, 1996, and, as a result, claimant was sent the "blue
letter" and informational pamphlet by the commission.
Claimant underwent a carpal tunnel release on his left
wrist on November 6, 1996. He had several post-operative visits
with Dr. Hemphill through January 1997. From his initial visit
in October 1996 through his last visit in January 1997, claimant
testified Dr. Hemphill never advised him that the carpal tunnel
syndrome was related to his employment.
Glenn Parker of Cigna Insurance, the insurance carrier for
employer, interviewed claimant on November 8, 1996. In the
interview, which was transcribed and admitted into evidence at
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the hearing, Parker explained to claimant that he would receive
a "blue letter" from the commission explaining the claim
process.
The following exchange then occurred between claimant and
Parker:
Parker: Ok. Anything else you would
like me to state?
Claimant: No other than, the physician
seems to think it is work
related and I told him from
what I had read about it it
had come from repetitive
motion.
Parker: Uh-huh.
Claimant: And my job I don't exactly do
the same identical same over
and over but I have been doing
maintenance work and working
with my hands for probably 32,
33 years now and he said
that's, in my case, the
repetition didn't do it, it's
just a number of years that I
have been doing physical rough
work with my hands.
At the hearing, claimant testified regarding his statements
to Parker, stating that he simply assumed that Dr. Hemphill
thought his carpal tunnel syndrome was work-related because Dr.
Hemphill inquired about his job duties. Claimant testified, "I
just kind of had to guess for myself what he meant." But,
claimant testified Dr. Hemphill never told him during his visits
in 1996 and 1997 that his condition was work-related.
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Claimant testified that Dr. Hemphill's diagnosis on October
31, 1996 did not prompt him to file a claim for benefits in 1996
or 1997. At that time, according to claimant, he did not possess
a clear understanding of whether or not his work caused his carpal
tunnel syndrome. Both Dr. Diduch and Dr. VanKirk had suggested
other factors, such as vascular disease and smoking, as the cause
of his carpal tunnel syndrome. He also was discouraged from
filing a claim for benefits after receiving a letter from Parker
on December 18, 1996, which stated his claim was denied because it
did not arise out of his employment. Claimant testified he
ultimately filed his claim on October 27, 1998, because, after
reading information from the commission that stated he was
required to file a claim within two years from the time the
diagnosis was communicated to him, he was concerned that the
statute of limitations would run. Claimant believed that the
statute of limitations would expire on October 31, 1998, because
Dr. Hemphill diagnosed him with carpal tunnel syndrome on October
31, 1996. Claimant stated he wrote the word "diagnosis" on the
Claim for Benefits application form that said "Date doctor told
you disease was caused in your work" in order to clearly indicate
that October 31, 1996 was the date of diagnosis rather than the
date of communication of an occupational disease. However,
claimant testified the pamphlet he received from the commission
stated the time for filing a claim was two years from the time
"you find out it is work related."
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The deputy commissioner made the following findings of fact:
In the present case, after a thorough
review of the medical records and testimony,
it appears to the Commission that a firm
diagnosis of carpal tunnel syndrome, related
to his work, was conveyed to the claimant in
October of 1996. Dr. Hemphill's initial
medical record discusses the claimant's years
of repetitive use of his hands in his work as
a causative factor. The fact that Dr.
Hemphill, according to the claimant, has not
explicitly laid this out in his medical
record is not dispositive since such a causal
statement would generally only be included in
a medical record when prepared for litigation
or insurance purposes. It is clear from
reading the records, however, that the
claimant's repetitive use of his hands was
Dr. Hemphill's primary focus.
Further, although the claimant was
somewhat vague as to whether or not Dr.
Hemphill ever communicated the diagnosis to
him, he did testify that he assumed that the
doctor thought his carpal tunnel syndrome was
work related. This is also reflected in his
recorded statement, given on November 8,
1996, when the claimant stated that he had
been given a diagnosis of bilateral carpal
tunnel syndrome and that "the physician seems
to think it is work related."
In affirming the decision of the deputy commissioner, the
commission found:
The claimant told the case manager that
it was his belief based on what Dr. Hemphill
told him that the carpal tunnel was a result
of his work. He was very specific in his
statement indicating that he had read that
the condition occurs because of repetitive
motion, but that Dr. Hemphill said his was
not due to repetition, but rather due to
doing the same type of work for many
years. . . .
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His assertion that he only received a
"diagnosis" and not a communication is
without support. He informed the employer of
his symptoms; he followed the employer's
instruction in obtaining medical care; he
received the "blue" letter from the
Commission; he filed an application for
hearing, and he gave a recorded statement to
the case manager indicating he had been
informed of the diagnosis and cause by the
treating physician.
II. ANALYSIS
Claimant's first two assignments of error involve the date on
which the commission found that he received communication that his
carpal tunnel syndrome was work-related. Claimant contends he
received communication that his carpal tunnel syndrome was
work-related on December 3, 1998, when he received the letter from
Dr. Hemphill. Employer contends, and the commission so found,
that the communication occurred on October 31, 1996.
On March 1, 1996, the Supreme Court of Virginia, in Stenrich
Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996),
ruled that a disease resulting from cumulative trauma caused by
repetition is not compensable under the Workers' Compensation Act
(Act). Effective July 1, 1997, the General Assembly amended the
Act to make carpal tunnel syndrome compensable. Code § 65.2-400.
Although this case does not involve a statute of limitations
issue, we cite cases involving the statute of limitations because
they are instructive.
The law in effect on the date of injury controls. See Roller
v. Basic Constr. Co., 238 Va. 321, 330, 384 S.E.2d 323, 327
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(1989). "The date on which the diagnosis of an occupational
disease is made and first communicated to the employee is treated
as the date of injury and as the happening of an injury by
accident. The rights and liabilities of the parties vest and
accrue on that date." Chesapeake & Potomac Telephone Co. v.
Williams, 10 Va. App. 516, 518-19, 392 S.E.2d 846, 847 (1990)
(citations omitted).
Whether a diagnosis of an occupational
disease was communicated and when the
communication occurred are factual
determinations to be made by the commission
upon the evidence. See Roller v. Basic
Constr. Co., 238 Va. 321, 329, 384 S.E.2d
323, 326 (1989). Upon appellate review, the
findings of fact made by the commission will
be upheld when supported by credible
evidence. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484
S.E.2d 140, 144 (1997), aff'd, 255 Va. 254, 497 S.E.2d 464 (1998).
Communication has two elements: 1) communication of the
diagnosis and 2) communication that the disease is work-related.
"The diagnosis need not contain precise medical terminology as
long as the diagnosis is definite and informs the claimant in
clear and understandable language that he or she is suffering from
a disease that arises out of and in the course of employment."
Via v. Citicorp Mortgage, Inc., 10 Va. App. 572, 576, 394 S.E.2d
505, 507 (1990) (citation omitted).
Code § 65.2-406(A)(5) does not require
that an employee receive from a physician a
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communication that his disease is work
related; rather, the statute only requires
that the employee, simultaneously with or
sometime after the diagnosis of his
condition, learn that the condition is an
occupational disease for which compensation
may be awarded.
City of Alexandria v. Cronin, 20 Va. App. 503, 508-09, 458 S.E.2d
314, 317 (1995) (citation omitted), aff'd, 252 Va. 1, 471 S.E.2d
184 (1996).
By interpreting [Code § 65.2-406(A)(5)]
as requiring proof of a communication by a
physician of the employee's occupational
disease, the commission ignores the fact
that, while many employees may receive a
diagnosis of his or her disease from a
physician, the claimants may receive the
communication that such a disease is a
compensable occupational disease from someone
other than a physician, often an attorney or
someone in charge of personnel or
administering benefits.
Id. at 508, 458 S.E.2d at 316.
Because it is undisputed that claimant received a positive
diagnosis of his condition in October 1996, the only issue we
consider is when the causation of the condition was communicated
to claimant.
The commission found the evidence established that Dr.
Hemphill diagnosed claimant with carpal tunnel syndrome in October
1996 and that claimant understood from Dr. Hemphill that the
disease was related to his work.
"[A] finding by the Commission upon conflicting
facts . . . is conclusive and binding on this Court, absent fraud,
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when such determination is supported by competent, credible
evidence." C.D.S. Constr. Servs. v. Petrock, 218 Va. 1064, 1070,
243 S.E.2d 236, 240 (1978) (citations omitted).
In this case, because the date of communication was in
October 1996, after the Jemmott decision, but before the
amendment, carpal tunnel syndrome was not compensable as of
claimant's "date of injury."
Claimant finally contends that principles of equity,
fairness, and public policy require reversal of the commission's
decision. He maintains that because the Act is to be liberally
construed in favor of the claimant, claimants who received a
communication after Jemmott and before the July 1, 1997 statutory
amendment should be compensated. Claimant argues his rights
outweigh any burden placed on employers and insurance carriers.
Claimant argues, "The General Assembly's failure to apply the July
1, 1997 amendment retroactively to such a small class of claimants
is short sighted and unjust." We reject claimant's argument.
"While the provisions of the Virginia Act are to be liberally
construed to see that its benefits are awarded to injured
employees, that principle does not authorize the courts to amend,
alter or extend its provisions, nor does it require that every
claim asserted be allowed." Bowden v. Newport News Shipbuilding &
Dry Dock Co., 11 Va. App. 683, 688, 401 S.E.2d 884, 887 (1991)
(citations omitted).
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Further, "[l]iberal construction, however, may not be used to
amend a statute by changing the meaning of the statutory
language." Low Splint Coal Co., Inc. v. Bolling, 224 Va. 400,
404, 297 S.E.2d 665, 667 (1982) (citation omitted).
This Court and the Supreme Court of Virginia have maintained
that broadening the scope of the coverage of the Act, which
"impact[s] as it must a broad spectrum of economic and social
values, is a matter of public policy reserved to the original and
exclusive jurisdiction of the General Assembly, and we will not
trespass upon its domain." Western Electric Co. v. Gilliam, 229
Va. 245, 248, 329 S.E.2d 13, 15 (1985).
For these reasons, we find no error and affirm the
commission's decision.
Affirmed.
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