COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
DAN RIVER, INC.
MEMORANDUM OPINION*
v. Record No. 2711-99-2 PER CURIAM
APRIL 11, 2000
CARLA A. HAIRSTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Martha W. Medley; Daniel, Vaughan, Medley &
Smitherman, P.C., on brief), for appellant.
(J. Gregory Webb; Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellee.
Dan River, Inc. (employer) contends that the Workers'
Compensation Commission (commission) erred in finding that (1)
Carla A. Hairston's (claimant) actions did not thwart employer's
opportunity to provide authorized medical treatment; (2)
claimant was not barred from recovery as a result of the timing
of the notice she gave employer concerning her work-related
carpal tunnel syndrome (CTS); (3) claimant did not seek and
receive unauthorized medical treatment; and (4) claimant proved
that her right CTS constituted a compensable ordinary disease of
life. Upon reviewing the record and the briefs of the parties,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
I. through III.
Employer conceded that claimant "technically" complied with
the requirements of Code § 65.2-405 by giving employer notice of
her work-related CTS within sixty days of the communication of
its diagnosis. Claimant received the communication no later
than May 12, 1998, and gave employer notice on May 29, 1998.
Dr. Robert E. Cassidy performed CTS release surgery on claimant
on May 19, 1998.
Employer argues that claimant's failure to give notice
after the date of the communication of a diagnosis of
work-related CTS and before her CTS surgery, resulted in clear
prejudice to employer because employer was deprived of its right
to offer claimant a panel of physicians and claimant proceeded
with surgery from an unauthorized physician. Employer argues
that because of claimant's delay in notifying employer until
after her surgery, employer should not be held responsible for
medical expenses or other expenses incurred before claimant
notified employer of her work-related CTS on May 29, 1998.
Employer's arguments are without merit. Employer cites no
authority to support these arguments, and we find none. The Act
provided claimant sixty days to notify employer once she
received a diagnosis of a work-related disease. Claimant
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complied with this provision. Moreover, an employer, such as
the one in this case, who denied the claim, was not entitled to
require claimant to seek treatment from one of its panel
physicians. Accordingly, even if there was any merit to
employer's argument, employer has not suffered any prejudice
under the circumstances of this case.
IV.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant testified that she has worked for employer for
over eight years, first as a weaver and then as a seamstress.
In April 1998, claimant's job involved sewing shams. She sewed
approximately 160 three-piece shams per day, and over 500
one-piece modular shams per day. She first experienced problems
with her right hand on April 23, 1998. She reported these
problems to her supervisor and sought medical treatment. She
did not tell her supervisor at that time that her problem was
work-related. On May 12, 1998, claimant learned from her
treating physician, Dr. Cassidy, that she was suffering from
work-related CTS. On May 19, 1998, Dr. Cassidy performed a CTS
release on claimant's right wrist. On May 29, 1998, claimant
gave written notice to employer of her work-related CTS. She
returned to work on June 1, 1998.
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Claimant testified that she did not engage in any sports or
hobbies outside of her work other than going to church. She
admitted that she is the primary caretaker for her children and
that she performs normal household duties.
Dr. Cassidy opined that "there is a direct causal link
between the conditions under which [claimant] performed her work
and her [CTS]." Dr. Cassidy opined that claimant's CTS was
"characteristic of the job she was doing with repetitive motions
of the hand, fingers and wrist. (although not forced). This is
very similar to people who develop carpal tunnel syndrome as a
result of constant computer use or typing." Dr. Cassidy noted
that claimant had no history of other activities in her normal
life or other illnesses or injuries which could have caused the
CTS.
Dr. Tullio Coccia, an orthopedist who specializes in hand
problems and who reviewed claimant's medical records and a
videotape of someone performing claimant's job, opined that
claimant's job did not contribute to her CTS. Dr. Cassidy
disagreed with Dr. Coccia's conclusions and opinions.
In awarding benefits to claimant and concluding that she
established by clear and convincing evidence the compensability
of her CTS as an ordinary disease of life, the commission found
as follows:
On this conflicting medical evidence
the deputy commissioner concluded that the
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claimant proved a compensable ordinary
disease of life. We agree. We have
carefully considered the employer's argument
that, while both of these physicians were
specialists in orthopedics, Dr. Coccia had
more experience in hand surgery and carpal
tunnel syndrome. On the other hand, Dr.
Cassidy was the claimant's treating
physician, and was firm in his opinion of
causation. Dr. Cassidy's records indicate
that he was aware of the claimant's non-work
activities. Regarding Dr. Coccia's opinion,
the claimant testified that the number of
items she was required to sew on a given day
far exceeded Dr. Coccia's estimate. We do
not find convincing Dr. Coccia's assertion
that the claimant's repetitive work as a
seamstress would not, to a reasonable degree
of medical certainty, contribute to the
development of her [CTS].
"'"Whether a disease is causally related to the employment
and not causally related to other factors is . . . a finding of
fact." When there is credible evidence to support it, such a
finding of fact is "conclusive and binding" on this Court.'"
National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 653, 507
S.E.2d 667, 669 (1998) (citations omitted), aff'd, ___ Va. ___,
___ S.E.2d ___ (2000).
Code § 65.2-400(C) provides that "the condition of carpal
tunnel syndrome [is] not [an] occupational disease[] but [is]
[an] ordinary disease[] of life as defined in [Code]
§ 65.2-401." Pursuant to Code § 65.2-401 "the elements required
to prove a compensable ordinary disease of life must be
'established by clear and convincing evidence, (not a mere
probability).'" Staton, 28 Va. App. at 654, 507 S.E.2d at 669.
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"Clear and convincing evidence has been
defined as 'that measure or degree of proof
which will produce in the mind of the trier
of facts a firm belief or conviction as to
the allegations sought to be established.
It is intermediate, being 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.'"
Id. (citations omitted).
Dr. Cassidy's opinion and claimant's testimony constitute
credible evidence to support the commission's findings. Dr.
Cassidy firmly expressed his opinion without any doubt. Based
upon his opinion and claimant's testimony, the commission, as
the trier of fact, could conclude that the evidence proved
clearly and convincingly that claimant's CTS was a compensable
ordinary disease of life.
For these reasons, we affirm the commission's decision.
Affirmed.
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