Stenrich Group v. Jemmott

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice

THE STENRICH GROUP, ET AL.

v. Record No. 950829

CLAUDIA H. JEMMOTT

PERDUE FARMS, INC.
OPINION BY
v. Record No. 951050 CHIEF JUSTICE HARRY L. CARRICO
March 1, 1996
LINDA KAY MARTIN

WAMPLER-LONGACRE CHICKEN, INC., ET AL.

v. Record No. 951072

SHIRLEY A. BILLER

FROM THE COURT OF APPEALS OF VIRGINIA

The dispositive question in each of these cases is whether

the Workers' Compensation Commission (the Commission) and the

Court of Appeals erred in finding that a job-related physical

impairment resulting from cumulative trauma caused by repetitive

motion is a disease within the contemplation of the Workers'

Compensation Act (the Act). The question arises in the context

of the following factual and procedural scenarios:
Stenrich v. Jemmott

On August 1, 1989, Claudia H. Jemmott (Jemmott) began

working for The Stenrich Group, Inc. (Stenrich), a Richmond

advertising concern, as a copy editor/proofreader, later becoming

a senior copy editor/proofreader. She spent between five and six

hours of each workday using a pen and a "slant board" in the

performance of her duties, with her hands moving repetitively
"back and forth and downward" as she read and corrected written

material.

On March 13, 1992, Jemmott experienced "an intense burning

sensation" in her right hand. Thereafter, she tended to rely

more upon her left hand, but it also began to cause her

discomfort. In August 1992, she came under the care of Dr. Bruce

M. Stelmack. He diagnosed her as suffering from carpal tunnel

syndrome in both hands, which he attributed to the repetitive

motions involved in her work. These motions, the doctor stated

in a deposition submitted to the Commission, caused Jemmott

"micro trauma," meaning "a small amount of injury in a repetitive

motion to the same area . . . occur[ring] in patients [who] flex

their wrist and impinge the nerve as it courses through the

carpal tunnel." The doctor opined that carpal tunnel syndrome is

"a disease process" as distinguished from "a simple injury."
Deputy Commissioner Lee entered an award of compensation in

favor of Jemmott. Affirming the award, the full Commission wrote

as follows:
Dr. Stelmack testified convincingly that [Jemmott] has
a disease, which he distinguishes from an injury. Dr.
Stelmack stated that repetitive use of [Jemmott's]
hands resulted in repetitive trauma but he also stated
that this repetitive use resulted in a disease process.
We find, therefore, that [Jemmott's] carpal tunnel
syndrome is a disease.

Perdue Farms v. Martin

On June 12, 1990, Linda Kay Martin (Martin) began working

for Perdue Farms, Inc. (Perdue) as a sanitation worker at its

chicken processing plant in Bridgewater. For approximately 5-1/2

hours each day, Martin used a high-pressure water gun to clean
production machinery. She operated the gun by pulling a trigger

with all the fingers of one hand at the same time. She used her

right hand until it began to trouble her, then switched to the

left. Eventually, she also experienced trouble with her left

hand.

In October 1992, the plant nurse arranged an appointment for

Martin with Dr. G. Edward Chappell, Jr., an orthopedic surgeon.

On October 19, 1992, the doctor diagnosed Martin as suffering

from carpal tunnel syndrome in both hands, a consequence, he

stated, of "doing repetitive work on the poultry line at Perdue."

In his final report, the doctor opined that Martin's carpal

tunnel syndrome "is a disease caused by her employment at Perdue

-- specifically on a poultry line."
Deputy Commissioner Herring held that Martin had "failed to

meet her burden of proof that she suffers from a disease" and

that "no award shall enter." The full Commission reversed and

awarded compensation to Martin, holding that Dr. Chappell had

"identified her condition as a disease" and that the Commission

had "consistently held that a disease caused by repetitive motion

or trauma is compensable as an occupational disease when

supported, as here, by the medical record."
Wampler-Longacre v. Biller

Shirley A. Biller (Biller) began working for Wampler-

Longacre Chicken, Inc. (Wampler-Longacre) on February 3,

1993, in the "Rehang" department of its processing plant in

Broadway. Her job required her to use both hands to take

chickens from a rotating belt and place them on "shackles" above
her. In this process, her thumbs were "in an upward position."

On average, she handled between 25 and 30 birds each minute

during an eight-hour shift, with two one-half hour breaks.

On November 29, 1993, Biller reported to Dr. Galen G. Craun,

Jr., a Harrisonburg physician, who found that her thumbs were

"locked in extension." The doctor told Biller she had "trigger

thumbs," and he diagnosed her as suffering from tenosynovitis.

He testified in a deposition submitted to the Commission that

while there are a number of causes of "trigger thumb," he was of

opinion that Biller's tenosynovitis was "the accumulation or the

product of many repetitious minor injuries to a joint, in the

case here of the thumbs." The doctor also said that he

considered "trigger thumb a disease."
Deputy Commissioner Herring held that Biller had "failed to

meet her burden of proof that she suffers from a compensable

disease" and that "no award shall issue." The full Commission

reversed, pointing out that subsequent to the time the deputy

commissioner decided the matter, the Commission had held in

another case that "'cumulative trauma which causes or results in

a disease may be compensable.'" The Commission awarded

compensation to Biller, citing Dr. Craun's opinion that Biller's

"trigger thumb" was a disease and that it was "caused by work

repetition."

In an unpublished opinion issued in each case, the Court of

Appeals affirmed the Commission's action, holding that the

impairment suffered by the particular employee constituted an

occupational disease. Finding that the cases involve matters of
significant precedential value, Code § 17-116.07(A)(2) and (B),

we awarded appeals to Stenrich, Perdue, and Wampler-Longacre.

In reviewing the cases, the Court of Appeals treated as

findings of fact the Commission's holdings that the impairments

suffered by the three employees were diseases within the

contemplation of the Act. The court then undertook a limited

appellate review, inquiring only whether the findings were

supported by credible evidence. Finding there was such support,

the Court of Appeals upheld the Commission's awards.
We disagree with the Court of Appeals. Admittedly, an award

of the Commission is "conclusive and binding as to all questions

of fact." Code § 65.2-706(A); see City of Richmond v. Braxton,

230 Va. 161, 163, 335 S.E.2d 259, 261 (1985). However, we think

the issue whether a worker has suffered an impairment that

constitutes a compensable disease is a mixed question of law and

fact and, hence, a Commission finding on the question is not

conclusive and binding upon this Court but is properly subject to

judicial review. See Braxton, 230 Va. at 163-64, 335 S.E.2d at

261 (mixed question of law and fact, properly reviewable, whether

injury arose out of and in the course of employment); see also

Nichols v. VVKR, Inc., 241 Va. 516, 519, 403 S.E.2d 698, 700

(1991) (mixed question of law and fact whether worker's actions

constituted part of owner's trade, business, or occupation);

VEPCO v. Kremposky, 227 Va. 265, 270, 315 S.E.2d 231, 234 (1984)

(mixed question of law and fact whether safety rule strictly

enforced); Derby v. Swift & Co., 188 Va. 336, 344, 49 S.E.2d 417,
421 (1948) (mixed question of law and fact whether worker
suffered an accident).

Here, the factual part of the mixed question is whether the

three claimants involved have suffered impairments, and there can

be no doubt that they have; the evidence conclusively establishes

that Jemmott and Martin suffer from carpal tunnel syndrome and

that Biller suffers from "trigger thumbs." The legal part of the

mixed question is whether these impairments, which all parties

agree were gradually incurred, constitute diseases within the

contemplation of the Act. In resolving this part of the

question, the crucial inquiry is whether the Commission correctly

applied the law to the established facts. See Cinnamon v.

International Business Machs. Corp., 238 Va. 471, 474, 384 S.E.2d

618, 619 (1989).

As first enacted in 1918, what is now the Workers'

Compensation Act provided compensation only for injury by

accident arising out of and in the course of employment.

Compensation for disease "in any form" was excluded except "where

it results naturally and unavoidably from the accident." Acts

1918, c. 400, § 2(d).

We first dealt with the question of a gradually incurred

injury in Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 24
S.E.2d 546 (1943). In Aistrop, we said that "'injury of gradual

growth, . . . caused by the cumulative effect of many acts done

or many exposures to conditions prevalent in the work, no one of

which can be identified as the cause of the harm, is definitely

excluded from compensation.'" Id. at 293, 24 S.E.2d at 548

(quoting Francis H. Bohlen, A Problem in the Drafting of
Workmen's Compensation Acts, 25 Harv. L. Rev. 328, 343 (1912)).

The year after our decision in Aistrop, the General Assembly

added "a carefully limited coverage for occupational diseases."

Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, 862 (1989);

Acts 1944, c. 77, § 2-f. Present Code §§ 65.2-101 and -400

reflect the additional coverage provided by the 1944 legislation.
§ 65.2-101. Definitions.-- As used in this title:

. . . .

"Injury" means only injury by accident arising out of
and in the course of the employment or occupational
disease as defined in [§§ 65.2-400 to -407] of this
title and does not include a disease in any form,
except when it results naturally and unavoidably from
either of the foregoing causes.[ 1 ]

§ 65.2-400. "Occupational Disease" defined.-- A. As
used in this title, unless the context clearly
indicates otherwise, the term "occupational disease"
means a disease arising out of and in the course of
employment, but not an ordinary disease of life to
which the general public is exposed outside of the
employment.

B. 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;

1
Appellee Martin argues that the language of § 65.2-101
which states that "'[i]njury' . . . does not include a
disease in any form, except when it results naturally and
unavoidably from either of the foregoing causes" means that
"a disease in any form is compensable as an 'injury' when it
results naturally and unavoidably from either an injury by
accident or an occupational disease." However, the
language, "'[i]njury' . . . does not include a disease in
any form," as used in the statute, is language of
limitation, and to give it the meaning Martin proposes would
turn it on its head.
 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.

Despite our holding in Aistrop that gradually incurred

injuries are not compensable and notwithstanding the coverage

added in 1944 for occupational diseases, claims coming before

this Court for gradually incurred impairments continued for many

years to be asserted only upon the injury-by-accident basis for

compensation. Then, in Holly Farms v. Yancey, 228 Va. 337, 321
S.E.2d 298 (1984), we were presented the question "whether a

lumbosacral strain of gradual development is an occupational

disease." Id. at 338, 321 S.E.2d at 299. Reversing an award of

compensation in favor of the claimant based upon a finding by the

Commission that the claimant suffered from an occupational

disease, we noted that this Court consistently had held that a

back strain is an injury, not a disease. Id. at 340, 321 S.E.2d

at 300. Yet, we said, the claimant "urges us to adopt a broad

definition of disease which would encompass virtually anything

that goes wrong with the body." Id. Noting that compensation is

allowed "where there has either been an accidental injury or an

occupational disease," id., we said:
A definition of either "injury" or "disease" that is so
broad as to encompass any bodily ailment of whatever
origin is too broad because it would make unnecessary
and meaningless the two categories specifically set
 forth in the Act. For more than 50 years, back pains
such as those complained of by [the claimant] have been
treated in our cases as injuries, not as diseases. If
this distinction is to be done away with, the
legislature must do so.

228 Va. at 340-41, 321 S.E.2d at 300. 2

Holly Farms was followed by Western Electric Co. v. Gilliam,

229 Va. 245, 329 S.E.2d 13 (1985). There, the claimant was

diagnosed by her physician as suffering from tenosynovitis in

both hands, "'due to an overuse type of syndrome . . . related to

the repetitive motions involved in her job.'" Id. at 246, 329

S.E.2d at 14. The Commission awarded the claimant compensation

for an occupational disease. While accepting the Commission's

finding that tenosynovitis is a disease, this Court reversed,

holding that the claimant suffered from an ordinary disease of

life that did not fall within one of the two exceptions then

contained in Code § 65.1-46 (now part of § 65.2-401) and, hence,

was not compensable. Id. at 247, 329 S.E.2d at 14. 3 We also
2
Appellee Martin states that after this Court decided
Holly Farms, the General Assembly "codified the Court's
judicially created exclusion of back strains from
consideration as a disease" by amending Code § 65.2-
400(B)(4) to exclude from the definition of occupational
diseases "any condition of the neck, back or spinal column."
Martin then argues that the General Assembly knew that this
Court uses the rule expressio unius est exclusio alterius in
construing statutes and that "by excluding any condition of
the neck, back, or spinal column, the General Assembly
knowingly included all other diseases." But the exclusion
is contained in the portion of § 65.2-400 which lists the
six factors necessary to establish causal connection between
disease and work place, not in the portion relating to
coverage. With this placement, the General Assembly could
not possibly have intended the amendment to have the
sweeping effect Martin would have us give it.
3
At the time Holly Farms was decided, § 65.1-46 (now
part of § 65.2-401) provided coverage for an ordinary
disease of life provided (1) it followed "as an incident of
said in Western Electric that our decision was based, "as it was

in Holly Farms, upon our interpretation of legislative intent as

reflected in the totality of the Workers' Compensation Act as it

exists today." Id. We then stated:
Some contend that any disability arising out of and
during the course of employment, including disabilities
resulting from both injuries and diseases caused
gradually by repeated trauma, should be made
compensable under the Workers' Compensation Act. But
such a consequential decision, impacting as it must a
broad spectrum of economic and social values, is a
matter of public policy reserved to the original and
exclusive jurisdiction of the General Assembly, and we
will not trespass upon its domain.

Id. at 247-48, 329 S.E.2d at 14-15 (emphasis added) (footnote

omitted). 4

We next considered a gradually incurred impairment in

Merillat Industries, Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600

(1993). There, the Commission awarded the claimant compensation

based upon a finding of occupational disease for a torn rotator

cuff muscle caused by repetitive overhead lifting and

manipulation of the left arm. The Court of Appeals upheld the
(..continued)
occupational disease as defined in [Title 65.1]," or (2) it
was "an infectious or contagious disease contracted in the
course of [one's] employment" in certain health-related
occupations. A third proviso was added in 1986. See note
4.
4
Appellee Martin argues that "in answer to the obstacle
to compensation found in Western Electric, [the General
Assembly added a] third class of ordinary diseases of life
that are compensable if . . . 'characteristic of the
employment and . . . caused by conditions peculiar to such
employment.'" Code § 65.1-46.1(3) (now Code § 65.2-401(3)).
Martin says this amendment "would make [the] claim in
Western Electric compensable." We will not speculate,
however, on what might have been the outcome of Western
Electric had the amendment been in effect at the time of our
decision.
award. Merillat Indus., Inc. v. Parks, 15 Va. App. 44, 53, 421

S.E.2d 867, 872 (1992).

Reversing the judgment of the Court of Appeals and entering

final judgment for the employer, we said that Code § 65.1-46 (now

§ 65.2-400), relating to occupational diseases, "requires that

the condition for which compensation is sought as an occupational

disease must first qualify as a disease." 246 Va. at 432, 436

S.E.2d at 601. However, we said, neither the Commission nor the

Court of Appeals determined whether the claimant's rotator cuff

tear was a disease but, rather, found the tear compensable as an

occupational disease because there was a causal connection

between the tear and the work place by applying the six factors

listed in Code § 65.1-46 (now § 65.2-400). This causality

analysis, standing alone, we stated, does not comply with the

requirements of the Act for determining compensability of an

impairment and, furthermore, would permit the allowance of

compensation for any ailment as an occupational disease "as long
as it is shown to be causally connected to the work place by

meeting the six factors set out in § 65.1-46 [now § 65.2-400]."
Id.

As we had done in previous cases, we pointed out that the

categories of compensable impairments created by the legislature

-- accidental injury and occupational disease -- "are separate,

meaningful categories." Id. at 433, 421 S.E.2d at 602. We

repeated the Holly Farms admonition that a definition of either
injury or disease that is so broad that it would encompass any

bodily ailment of whatever origin "'is too broad because it would
make unnecessary and meaningless the two categories specifically

set forth in the Act.'" Id. And we reasserted our position that

"'[i]f this distinction is to be done away with, the legislature

must do so.'" Id.

Finally, we noted that "[t]he General Assembly still has not

altered the categories of injuries and diseases nor has it

substituted a single test of causality," and we stated that "[w]e

again decline to do so." Id. Accordingly, because the claimant

had failed to first qualify her impairment as a disease, we held

that the rotator cuff tear suffered by the claimant "must be

classified as an injury, not a disease." Id.

On the same day we decided Merillat, we also decided, by an

order published at 438 S.E.2d 768, the case of TAD Technical

Services Corp. v. Fletcher. In our order, we said that for the

reasons stated in Merillat, "the Court of Appeals erred in

holding that a torn rotator cuff muscle is compensable as an

occupational disease," and we reversed the judgment of the Court

of Appeals and entered final judgment in favor of the employer.
Id. at 769.

We thought we had made it plain in Holly Farms and Merillat

that any definition of the words "injury" and "disease" that is

so broad as to encompass any bodily ailment of whatever origin is

too broad. Yet, hardly had the ink dried on the Merillat opinion

before the Court of Appeals decided Piedmont Manufacturing Co. v.
East, 17 Va. App. 499, 438 S.E.2d 769 (1993). There, the

claimant suffered from tenosynovitis, causing severe pain in her

left hand. Her work involved the repetitive use of her left hand
to inspect and handle small components. Claimant sought

compensation for an occupational disease. Her doctor described

her condition as "'secondary to overuse syndrome or repetitive

trauma syndrome.'" Id. at 502, 438 S.E.2d at 771. The

Commission awarded the claimant compensation for an occupational

disease, and the Court of Appeals affirmed. In deciding that the

claimant suffered from an occupational disease, the Court of

Appeals adopted the following definition of the word "disease,"

taken from The Sloane-Dorland Annotated Medical-Legal Dictionary
209 (1987):
[A]ny 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 whose
etiology, pathology, and prognosis may be known or
unknown.

17 Va. App. at 503, 438 S.E.2d at 772.

In each of the present cases, the Court of Appeals held that

because the physician stated the particular impairment involved

was a "disease," the statement satisfied the definition of

"disease" enunciated in Piedmont. But just because a doctor

opines that a particular impairment is a disease does not

necessarily make it so. As indicated earlier in this opinion,

whether a claimant suffers from a disease within the

contemplation of the Act is a mixed question of law and fact, and

whether a proper definition has been used to test the

authenticity of a doctor's opinion is strictly a legal question.

Clearly, the Piedmont definition "is contrary to the mandate

of Merillat," Perdue Farms, Inc. v. McCutchan, 21 Va. App. 65,
77, 461 S.E.2d 431, 437 (1995) (Koontz, J., dissenting), because

it "'is so broad as to encompass any bodily ailment of whatever

origin [and] would make unnecessary and meaningless the two

categories specifically set forth in the Act,'" Merillat, 246 Va.

at 433, 436 S.E.2d at 602 (quoting Holly Farms, 228 Va. at 340,

321 S.E.2d at 300).

While the doctors involved in these cases opined that the

particular impairments suffered by the claimants were diseases,

they also said that the impairments resulted from cumulative

trauma caused by repetitive motion. Because an improper

definition of disease was used for testing the authenticity of

the medical opinions, the opinions can provide no support for the

finding of the Commission and the Court of Appeals that the

present claimants suffered from diseases. Therefore, with

respect to each claimant, we are left with an impairment

resulting from cumulative trauma caused by repetitive motion, an

impairment which must be classified as an injury, not a disease,
5
and which, under Merillat, is not compensable.
Appellee Jemmott argues, however, that we did not hold in

Merillat that a "condition such as a torn rotator cuff which is

clearly caused by cumulative trauma cannot be compensable."

Jemmott points to a statement in the Merillat opinion that "for a

rotator cuff tear to be compensable under the Act as an

5
Because we find that the impairments involved here are
injuries, not diseases, we do not consider the further
contention made by appellees Jemmott and Martin that they
are entitled to compensation under Code § 65.2-401 for an
ordinary disease of life.
occupational disease, the record must support a finding that the

tear is a disease." 246 Va. at 433, 436 S.E.2d at 602. Jemmott

also points to a statement that "[b]ased on this record, the

rotator cuff tear suffered by Parks must be classified as an

injury, not a disease." Id. Jemmott then states as follows:

"This Court merely stated in Merillat that in that case, with

that record, where there was no medical evidence to support a

finding that the rotator cuff tear was a disease and not an

injury, the claimant's rotator cuff tear was . . . not
6
compensable."
However, Jemmott's analysis of the extent of our holding in

Merillat overlooks the fact that the opinion represents a clear

refusal "to broaden the scope of the Act to include job-related

impairments arising from repetitive motion or cumulative trauma."

246 Va. at 433, 436 S.E.2d at 601-02. Jemmott's analysis also

overlooks the statement in the opinion that "[i]n Morris, we held

that gradually incurred traumatic injuries or cumulative trauma
conditions were not compensable under the existing injury by

accident-occupational disease dichotomy." Id. at 433, 436 S.E.2d

at 602. (Emphasis added.)

Jemmott is mistaken about the effect of the statements to

which she points in the Merillat opinion. The statements were

made merely to demonstrate the failure of the record to show

satisfaction of the requirement that "the condition for which

compensation is sought as an occupational disease must first

6
Appellee Biller makes a somewhat similar argument.
qualify as a disease." Id. at 432, 436 S.E.2d at 601.

But if there lingers any doubt about this Court's holding in

Merillat, we now remove the doubt by saying that job-related

impairments resulting from cumulative trauma caused by repetitive

motion, however labeled or however defined, are, as a matter of

law, not compensable under the present provisions of the Act.

Accordingly, we will reverse each of the judgments under review,

dismiss each claim for benefits, and enter final judgment in

favor of each employer.
Record No. 950829 - Reversed and final judgment.
Record No. 951050 - Reversed and final judgment.
Record No. 951072 - Reversed and final judgment.