COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Senior Judges Cole and Duff
WLR FOODS, INC.
AND
PACIFIC EMPLOYERS INSURANCE COMPANY
v. Record No. 0965-95-3 MEMORANDUM OPINION *
PER CURIAM
SCOTT L. CUBBAGE NOVEMBER 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cathleen P. Welsh (Wharton, Aldhizer & Weaver, on
brief), for appellants.
A. Thomas Lane, Jr., for appellee.
WLR Foods, Inc. and its insurer appeal a decision of the
Workers' Compensation Commission awarding benefits to Scott L.
Cubbage for the occupational diseases of bilateral tenosynovitis
and bilateral carpal tunnel syndrome. Employer contends that the
commission erred in finding that (1) Cubbage made a claim for
left-sided tenosynovitis; (2) Cubbage's right-sided tenosynovitis
constitutes a "disease" within the meaning of occupational
disease under the Workers' Compensation Act ("the Act"); (3)
Cubbage's bilateral carpal tunnel syndrome constitutes a
"disease" under the Act causally related to his employment; (4)
Cubbage proved that Dr. Irvin E. Hess communicated a diagnosis of
work-related bilateral carpal tunnel syndrome to him; and (5)
Cubbage's bilateral carpal tunnel syndrome is a compensable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
consequence of his bilateral tenosynovitis. For the following
reasons, we reverse the commission's decision as to the first
question presented and affirm the remainder of its decision.
FACTS
The facts are not in dispute. Cubbage began working for
employer in September 1993. His job duties involved hanging
chickens on a shackle and pulling skins from various chicken
parts. In November 1993, he began to notice pain in his hands.
On January 20, 1994, Cubbage sought medical treatment from
Dr. Irvin Hess, an orthopedic surgeon. Dr. Hess initially
diagnosed flexor tenosynovitis more severe on the right than the
left. Because he suspected early carpal tunnel syndrome, Dr.
Hess referred Cubbage to Dr. Zack Perdue for nerve conduction
studies. These studies revealed that Cubbage suffered from
bilateral carpal tunnel syndrome more on the right than the left.
Dr. Perdue opined that the repetitive nature of Cubbage's work
caused his bilateral carpal tunnel syndrome.
Dr. Hess opined that because he had no history of a specific
trauma, it was probable that Cubbage's tenosynovitis was related
to his repetitive work. However, he disagreed with Dr. Perdue's
opinion concerning Cubbage's bilateral carpal tunnel syndrome.
Dr. Hess testified that he could not opine within a reasonable
degree of medical certainty that Cubbage's bilateral carpal
tunnel syndrome was caused by his work. Dr. Hess admitted that
it was very difficult to separate the two conditions.
I. LEFT-SIDED TENOSYNOVITIS
On April 20, 1994, Cubbage filed an application for hearing
and claim for benefits with the commission alleging an
occupational disease of bilateral carpal tunnel syndrome causally
related to his employment. At the September 7, 1994 hearing,
Cubbage made a claim for benefits based upon left-sided carpal
tunnel syndrome and right-sided tenosynovitis and/or carpal
tunnel syndrome.
No evidence in the record shows that Cubbage ever made a
claim before the commission for an occupational disease of left-
sided tenosynovitis. Absent such a claim, the commission did not
have jurisdiction to award benefits for this condition.
Accordingly, we reverse the commission's award of compensation to
Cubbage for left-sided tenosynovitis.
II. and III. RIGHT-SIDED TENOSYNOVITIS
AND CARPAL TUNNEL SYNDROME
A. "Disease" Issue:
In Piedmont Mfg. Co. v. East, 17 Va. App. 499, 503, 438
S.E.2d 769, 772 (1993), we defined "disease" as:
any deviation from or interruption of the
normal structure or function of any part,
organ, or system (or combination thereof) of
the body that is manifested by a
characteristic set of symptoms and signs and
whose etiology, pathology, and prognosis may
be known or unknown.
"[T]he definition enunciated in Piedmont [has been
recognized by this Court] as the general and accepted meaning of
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the term 'disease,' a term which is presumed to be known by the
legislature and is employed by it without restriction in Code
§§ 65.2-400 and 65.2-401." Perdue Farms, Inc. v. McCutchan, 21
Va. App. 65, 68, 461 S.E.2d 431, 435 (1995) (carpal tunnel
syndrome is a disease under the Act).
Tenosynovitis is defined as "inflammation of a tendon
sheath." Dorland's Illustrated Medical Dictionary 1316 (26th ed.
1985). Using this general medical definition of tenosynovitis,
as we did for carpal tunnel syndrome in Perdue, we find that
tenosynovitis falls within the definition of disease set forth in
Piedmont and approved of in Perdue. 1
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We
must uphold the commission's factual findings if supported by
credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
As in Perdue, Cubbage's right-sided tenosynovitis and
bilateral carpal tunnel syndrome did not present as obvious,
sudden, mechanical or structural changes in his body. Based upon
our holding in Perdue and Dr. Hess' diagnoses, we conclude that
credible evidence supports the commission's findings that
Cubbage's right-sided tenosynovitis and bilateral carpal tunnel
1
In his September 12, 1994 deposition, Dr. Hess defined
tenosynovitis in a manner consistent with this general medical
definition of tenosynovitis.
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syndrome are conditions characterized as "diseases" within the
meaning of the Act.
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B. Causation Issue:
"'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."
Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E.2d
205, 208 (1991) (quoting Island Creek Coal Co. v. Breeding, 6 Va.
App. 1, 12, 365 S.E.2d 782, 788 (1988)).
The commission weighed the conflict between Dr. Perdue's
opinion that Cubbage's bilateral carpal tunnel syndrome was
caused by the repetitive nature of his work and Dr. Hess'
testimony that he could not render such an opinion to a
reasonable degree of medical certainty. The commission accepted
Dr. Perdue's opinion, which constitutes credible evidence to
support its finding that Cubbage proved his bilateral carpal
tunnel syndrome was causally related to his employment.
"Questions raised by conflicting medical opinions must be decided
by the commission." Penley v. Island Creek Coal Co., 8 Va. App.
310, 318, 381 S.E.2d 231, 236 (1989).
IV. Communication of Diagnosis of Occupational Disease
Cubbage's testimony and Dr. Hess' records and testimony
provide credible evidence to support the commission's finding
that Dr. Hess communicated a diagnosis of an occupational disease
to Cubbage at the time of his initial examination on January 20,
1994. Dr. Hess testified that he told Cubbage on January 20,
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1994 that he suffered from tenosynovitis causally related to his
work. Cubbage testified that on February 7, 1994, Dr. Hess told
him he had bilateral carpal tunnel syndrome caused by his work.
Because our rulings on issues (I) through (IV) dispose of
this appeal, we will not address question presented (V). For the
reasons stated, the commission's decision is reversed in part,
and affirmed in part.
Reversed in part,
affirmed in part.
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