COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ANGELA MAY JENKINS
v. Record No. 0616-95-4 MEMORANDUM OPINION *
PER CURIAM
WRANGLER, INC./VF CORPORATION JULY 17, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George Warren Shanks, on briefs), for appellant.
Appellant submitting on briefs.
(J. David Griffin; Fowler, Griffin, Coyne & Coyne, on
brief), for appellee. Appellee submitting on brief.
Angela May Jenkins (claimant) appeals from a decision of the
Workers' Compensation Commission finding that she was not
entitled to compensation after November 6, 1992 for disability
due to her compensable occupational disease, bilateral carpal
tunnel syndrome. 1 The commission relied upon a November 6, 1992
release by Dr. Dennis W. Wise, the treating orthopedist, to find
that the claimant was able to return to her pre-injury work,
without restrictions, as of that date. The claimant contends
that the commission erred in relying upon this release. We
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
The deputy commissioner ruled that the claimant met her
burden under Code § 65.2-400 and proved that her bilateral carpal
tunnel syndrome constituted an occupational disease causally
related to her employment. Employer did not seek review of these
findings by the full commission. Therefore, they became the law
of the case. The full commission ruled that Dr. Wise
communicated to the claimant on January 20, 1992 that she
suffered from carpal tunnel syndrome causally related to her
work. This finding was not appealed by employer to this Court.
agree. We reverse the commission's decision and remand this case
for entry of an award consistent with this opinion.
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). "[I]f
no credible evidence exists in support of a factual finding, the
issue of the sufficiency of the evidence is one of law for this
Court to decide." Spruill v. C.W. Wright Constr. Co., 8 Va. App.
330, 333, 381 S.E.2d 359, 360 (1989).
The commission failed to recognize that, in his November 6,
1992 release, Dr. Wise referred only to the claimant's ability to
return to regular work, without restrictions, based on the
cervical strain diagnosis. Dr. Wise did not state on the release
form that the claimant had recovered sufficiently from her carpal
tunnel syndrome that she could, without restrictions, return to
her pre-injury work. There were no corresponding office notes or
any explanation from Dr. Wise for this narrowly-worded release.
Moreover, through July 1992, Dr. Wise consistently noted that the
claimant suffered from arm and hand pain, and that carpal tunnel
release surgery was the only possible solution to her problem.
The claimant testified that she wanted to have the surgery, but
she did not have the resources to pay for it.
Dr. Galen Craun, who examined the claimant on July 23, 1992
at employer's request, did not comment on her ability to work.
Dr. Frank C. McCue, III, an orthopedic surgeon who examined the
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claimant on June 7, 1993, suggested that she be considered for
light-duty work only and that surgery would be indicated if her
condition remained symptomatic. Dr. McCue opined that an attempt
to return to heavy activity in patients who have carpal tunnel
syndrome generally causes recurrences.
The claimant testified about the pain and disability she
continued to experience after November 6, 1992 due to her carpal
tunnel syndrome. She also described her reasonable job search
efforts from the time her compensation ended on September 14,
1992 through February 1993. She stated that, after February
1993, she asked friends about possible job prospects, but was
unable to find suitable work.
S. Paul McFarland, a vocational evaluator for the Department
of Rehabilitative Services, evaluated the claimant on December 4,
1992. Based upon this evaluation and his experience, McFarland
opined that the claimant could not be placed in a job until she
underwent the carpal tunnel release surgery recommended by her
physicians.
This evidence proved, as a matter of law, that the claimant
remained partially disabled after November 6, 1992, and that she
made reasonable efforts to market her residual capacity. There
is no evidence to support a finding that the claimant had
recovered sufficiently from her carpal tunnel syndrome that she
could return to her pre-injury work, without restrictions.
Accordingly, the commission erred as a matter of law in finding
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that the claimant did not prove that she was disabled after
November 6, 1992, and in failing to award her temporary total
disability benefits after November 6, 1992.
For the stated reasons, we reverse the commission's decision
and remand this case for entry of an award consistent with this
opinion.
Reversed and remanded.
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