COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ENGINEERING DESIGN & SALES
AND
FIRST OF GEORGIA INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2181-94-3 PER CURIAM
MAY 23, 1995
JOYCE A. MILLER
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Martha White Medley; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellants.
(Henry G. Crider; Shupik & Crider, on brief), for
appellee.
Engineering Design & Sales and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) Joyce A. Miller
proved a compensable occupational disease under the requirements
of Code § 65.2-400, rather than a noncompensable aggravation of
an ordinary disease of life; (2) Miller's claim should be
analyzed under the requirements of Code § 65.2-400 rather than
§ 65.2-401; (3) an occupational disease was communicated to
Miller by her physicians; (4) Miller did not refuse medical
treatment; and (5) Miller did not fail to market her residual
work capacity. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
Occupational Disease vs. Ordinary Disease of Life 1
The commission did not err in treating Miller's disease as a
compensable occupational disease in accordance with the six
requirements of Code § 65.2-400. On appeal, the commission's
findings must be construed in the light most favorable to the
prevailing party below. Piedmont Mfg. Co. v. East, 17 Va. App.
499, 504, 438 S.E.2d 769, 773 (1993). "Whether a disease is
causally related to the employment and not causally related to
other factors is . . . a finding of fact." Island Creek Coal Co.
v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988)
(citation omitted). "[I]t is fundamental that a finding of fact
made by the Commission is conclusive and binding upon this court
on review. A question raised by conflicting medical opinion is a
question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714,
347 S.E.2d 532, 533 (1986).
The medical opinions from Miller's two treating physicians
provide the credible evidence necessary to support the
commission's finding. Medical evidence from Drs. Settle and
Kramer showed that Miller's carpal tunnel syndrome could be
traced to her employment. Furthermore, there was no evidence
1
On appeal, employer does not contest the commission's
finding that Miller's carpal tunnel syndrome qualified as a
"disease" for purposes of awarding compensation for an
occupational disease.
2
that Miller's prior right arm symptoms had any bearing on her
development of carpal tunnel syndrome. The commission, in its
role as fact finder, was entitled to give little weight to Dr.
Strong's opinion.
Credible evidence also supports the commission's findings
that there was no substantial exposure to the causes of Miller's
condition outside of her employment. There was no evidence that
Miller was exposed to causes outside of her employment which
might have led to her disease. "'Reasonable degree of medical
certainty' requires only that 'it is at least more probable than
not that the disease arose out of and in the course of
employment.'" Piedmont, 17 Va. App. at 506-07, 438 S.E.2d at 774
(citations omitted). Miller's evidence met this burden of proof.
Accordingly, the commission did not err in finding that Miller
proved that she suffered from a compensable occupational disease,
and that her claim was properly analyzed under the requirements
of Code § 65.2-400 rather than 65.2-401. 2
Communication to Miller of an Occupational Disease
"'Under our Workers' Compensation Act, an occupational
disease is not compensable until a diagnosis of such has been
communicated to the employee.'" Piedmont, 17 Va. App. at 507,
2
Employer also argues that Miller's evidence, at best,
established an aggravation of an ordinary disease of life, which
is not compensable under the Act. This argument is without merit
because the commission correctly concluded that Miller's carpal
tunnel syndrome constituted a compensable occupational disease
under the requirements of Code § 65.2-400, rather than an
ordinary disease of life.
3
438 S.E.2d at 774 (quoting Breeding, 6 Va. App. at 9-10, 365
S.E.2d at 787). "'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.'" Piedmont, 17 Va. App. at 507, 438 S.E.2d at 774
(quoting Via v. Citicorp Mortgage, Inc., 10 Va. App. 572, 576,
394 S.E.2d 505, 507 (1990)). Employer argues that Miller is not
entitled to compensation because she failed to receive a
diagnosis of an occupational disease caused by her employment.
We disagree.
Miller testified that, at either her November 2 or November
12, 1992 office visit, Dr. Kramer told her that she had carpal
tunnel syndrome and that this condition was related to her work.
Nerve conduction studies performed on November 12, 1992 revealed
bilateral carpal tunnel syndrome. In a December 16, 1993 letter
to Miller's attorney, Dr. Kramer indicated that the November 12,
1992 studies confirmed his November 2, 1992 tentative diagnosis
of carpal tunnel syndrome. Miller's testimony and the medical
records provide credible evidence to support the commission's
finding that, as of November 12, 1992, the diagnosis of an
occupational disease had been communicated to Miller.
Refusal of Medical Treatment
We agree with the commission's finding that the employer may
not both refuse to pay for treatment and avoid liability when a
4
claimant chooses not to pay for it on her own. The evidence
proved that Miller's surgery was delayed because employer denied
liability for her claim, and because she could not afford to pay
for the surgery. Under the circumstances of this case, the
commission correctly concluded that Miller's conduct did not
amount to an unjustified refusal of medical treatment.
Marketing
The commission found that, prior to Miller's surgery in June
1993, there had been no clear statement from any of the treating
physicians that Miller had been released to full or partial duty.
This finding is supported by credible evidence, including the
medical records and Miller's testimony. Miller testified that it
was her understanding that she was not released to return to work
by her physicians. Accordingly, we cannot say that the
commission erred in holding that it could not find that Miller
failed to market her residual work capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.
5