COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
KERN MOTOR COMPANY, INC. AND
VADA GROUP SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 1786-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 4, 2003
DAVID A. BUCKLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Iris W. Redmond (Midkiff, Muncie & Ross,
P.C., on brief), for appellants.
No brief or argument for appellee.
Kern Motor Company, Inc. (employer) contends the Workers'
Compensation Commission (commission) erred in finding David A.
Buckley (claimant) proved by clear and convincing evidence that
his bilateral carpal tunnel syndrome was causally related to his
work. For the following reasons, we affirm the commission.
I. BACKGROUND
Claimant worked as a "body man" for employer for fifteen
years. He used hand tools as well as air tools to paint and
repair motor vehicles. His duties were defined as follows:
CLAIMANT: [Y]ou get a job, and it's got the
front end wrecked, and you've got to take
the whole front end off. You're constantly
using your hands. If you've got a dent,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
you've got to use your hands to do
that. . . .
DEPUTY COMMISSIONER: Give me some specifics
as far as how you use your hands, what tools
you're using, how you use those.
CLAIMANT: Mostly air wrenches, air chisels,
grinders. Most of our tools are air. We do
have quite a few hand tools, but very seldom
when you're working production you don't
make a tendency of using hand tools. Mostly
it's air stuff. When a car comes in, you're
hammering, beating on them. It's like when
they're wrecked, you've got to put them back
in the proper position that they was before
they was wrecked, and in order to do that,
you've got to tear them apart and straighten
some stuff, put other stuff back on.
Claimant also stated that he "occasionally" worked on his own
cars. However, this evidence showed limited exposure outside
his work.
In November 2000, claimant first noticed numbness in his
right hand, but no diagnosis was made at that time and he
continued to perform his work. On March 5, 2001 claimant sought
further medical treatment with his family physician, Dr. Anthony
A. Saweikis. Dr. Saweikis diagnosed carpal tunnel syndrome and
stated further that "workmen's comp most likely [sic]." Dr.
Saweikis advised claimant to file a workers' compensation claim.
Further testing confirmed carpal tunnel syndrome. Claimant had
surgery on his left wrist and requires surgery on his right
wrist.
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The commission found that:
[C]laimant has established that he suffers
from bilateral carpal tunnel syndrome. We
further find that he has shown by clear and
convincing evidence that his carpal tunnel
syndrome is causally related to his work as
an auto body repairman.
* * * * * * *
In short, while the claimant's evidence of
causation is not clear and unequivocal, it
need not meet that rigid standard. Each
statement addressing causation by
Dr. Saweikis, standing on its own, may not
be sufficient to establish causation by
clear and convincing evidence. However,
when his opinions are reviewed in
conjunction with all of the other facts in
the case, we are convinced that causation
has been established. We find that the
evidence is sufficient to establish in our
minds a firm belief that the claimant's
carpal tunnel syndrome was caused by his
work for the employer.
Employer appealed that decision.
II. ANALYSIS
Employer contends that no credible evidence supports the
commission's finding that claimant proved, by clear and
convincing evidence, that his bilateral carpal tunnel syndrome
arose out of his employment. We disagree.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'Decisions of the
commission as to questions of fact, if supported by credible
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evidence, are conclusive and binding on this Court.'" WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991)). "Where reasonable inferences
may be drawn from the evidence in support of the commission's
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County School Board, 7 Va. App. 398,
404, 374 S.E.2d 695, 698 (1988). "The commission, like any
other fact finder, may consider both direct and circumstantial
evidence in its disposition of a claim. Thus, the commission
may properly consider all factual evidence, from whatever
source, whether or not a condition of the workplace caused the
injury." VFP, Inc. v. Shepherd, 39 Va. App. 289, 293, 572
S.E.2d 510, 512 (2002). "[T]he appellate court does not retry
the facts, reweigh . . . the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
Code § 65.2-400(C) provides that carpal tunnel syndrome is
an "ordinary disease of life as defined in [Code] § 65.2-401."
Code § 65.2-401 provides in pertinent part:
An ordinary disease of life to which the
general public is exposed outside of the
employment may be treated as an occupational
disease . . . if each of the following
elements is established by clear and
convincing evidence, (not a mere
probability):
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1. That the disease exists and arose out of
and in the course of employment as provided
in § 65.2-400 1 with respect to occupational
diseases and did not result from causes
outside of the employment, and
2. That one of the following exists:
a. It follows as an incident of
occupational disease as defined in this
title; or
b. It is an infectious or contagious
disease . . . ; or
1
Code § 65.2-400(B) provides:
A disease shall be deemed to arise out of
the employment only if there is apparent to
the rational mind, upon consideration of all
the circumstances:
1. A direct causal connection between the
conditions under which work is performed and
the occupational disease;
2. It can be seen to have followed as a
natural incident of the work as a result of
the exposure occasioned by the nature of the
employment;
3. It can be fairly traced to the
employment as the proximate cause;
4. It is neither a disease to which an
employee may have had substantial exposure
outside of the employment, nor any condition
of the neck, back, or spinal column;
5. It is incidental to the character of the
business and not independent of the relation
of employer and employee; and
6. It had its origin in a risk connected
with the employment and flowed from that
source as a natural consequence, though it
need not have been foreseen or expected
before its contraction.
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c. It is characteristic of the employment
and was caused by conditions peculiar to
such employment.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing. The
testimony of a claimant may also be considered in determining
causation, especially where the medical testimony is
inconclusive." Dollar General Store v. Cridlin, 22 Va. App.
171, 176, 468 S.E.2d 152, 152 (1996) (internal citations
omitted).
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.
Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211
S.E.2d 88, 92 (1975) (internal quotation and citation omitted)
(emphasis in original).
The commission reviewed the medical reports and found that
Dr. Saweikis was "reasonably certain that the claimant's
suspected carpal tunnel syndrome was due to his work as an auto
body repairman" and that his findings were "corroborative of the
claimant's own testimony." While claimant's other doctors did
not specifically address the source of claimant's carpal tunnel
syndrome, this did not "undermine the other evidence of
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causation in the record." No evidence established any source
other than his work as the causative agent.
Therefore, we hold that credible evidence supports the
commission's findings that claimant established by clear and
convincing evidence that his carpal tunnel syndrome arose out of
and in the course of his employment as an auto body repairman
for fifteen years and that his injury did not result from causes
outside his employment. For the foregoing reasons, the decision
of the commission is affirmed.
Affirmed.
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Kern Motor Company Inc v. David A Buckley
Combined Opinion