Dan River, Inc. v. Carla A. Hairston

• Court: Court of Appeals of Virginia
• Decided: April 11, 2000
• Docket: 2711992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

DAN RIVER, INC. MEMORANDUM OPINION* v. Record No. 2711-99-2 PER CURIAM APRIL 11, 2000 CARLA A. HAIRSTON

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Martha W. Medley; Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant.

(J. Gregory Webb; Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellee.

Dan River, Inc. (employer) contends that the Workers'

Compensation Commission (commission) erred in finding that (1)

Carla A. Hairston's (claimant) actions did not thwart employer's

opportunity to provide authorized medical treatment; (2)

claimant was not barred from recovery as a result of the timing

of the notice she gave employer concerning her work-related

carpal tunnel syndrome (CTS); (3) claimant did not seek and

receive unauthorized medical treatment; and (4) claimant proved

that her right CTS constituted a compensable ordinary disease of

life. Upon reviewing the record and the briefs of the parties,

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. we conclude that this appeal is without merit. Accordingly, we

summarily affirm the commission's decision. See Rule 5A:27.

I. through III.

Employer conceded that claimant "technically" complied with

the requirements of Code § 65.2-405 by giving employer notice of

her work-related CTS within sixty days of the communication of

its diagnosis. Claimant received the communication no later

than May 12, 1998, and gave employer notice on May 29, 1998.

Dr. Robert E. Cassidy performed CTS release surgery on claimant

on May 19, 1998.

Employer argues that claimant's failure to give notice

after the date of the communication of a diagnosis of

work-related CTS and before her CTS surgery, resulted in clear

prejudice to employer because employer was deprived of its right

to offer claimant a panel of physicians and claimant proceeded

with surgery from an unauthorized physician. Employer argues

that because of claimant's delay in notifying employer until

after her surgery, employer should not be held responsible for

medical expenses or other expenses incurred before claimant

notified employer of her work-related CTS on May 29, 1998.

Employer's arguments are without merit. Employer cites no

authority to support these arguments, and we find none. The Act

provided claimant sixty days to notify employer once she

received a diagnosis of a work-related disease. Claimant

- 2 - complied with this provision. Moreover, an employer, such as

the one in this case, who denied the claim, was not entitled to

require claimant to seek treatment from one of its panel

physicians. Accordingly, even if there was any merit to

employer's argument, employer has not suffered any prejudice

under the circumstances of this case.

IV.

On appeal, we view the evidence in the light most favorable

to the prevailing party below. See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Claimant testified that she has worked for employer for

over eight years, first as a weaver and then as a seamstress.

In April 1998, claimant's job involved sewing shams. She sewed

approximately 160 three-piece shams per day, and over 500

one-piece modular shams per day. She first experienced problems

with her right hand on April 23, 1998. She reported these

problems to her supervisor and sought medical treatment. She

did not tell her supervisor at that time that her problem was

work-related. On May 12, 1998, claimant learned from her

treating physician, Dr. Cassidy, that she was suffering from

work-related CTS. On May 19, 1998, Dr. Cassidy performed a CTS

release on claimant's right wrist. On May 29, 1998, claimant

gave written notice to employer of her work-related CTS. She

returned to work on June 1, 1998.

- 3 - Claimant testified that she did not engage in any sports or

hobbies outside of her work other than going to church. She

admitted that she is the primary caretaker for her children and

that she performs normal household duties.

Dr. Cassidy opined that "there is a direct causal link

between the conditions under which [claimant] performed her work

and her [CTS]." Dr. Cassidy opined that claimant's CTS was

"characteristic of the job she was doing with repetitive motions

of the hand, fingers and wrist. (although not forced). This is

very similar to people who develop carpal tunnel syndrome as a

result of constant computer use or typing." Dr. Cassidy noted

that claimant had no history of other activities in her normal

life or other illnesses or injuries which could have caused the

CTS.

Dr. Tullio Coccia, an orthopedist who specializes in hand

problems and who reviewed claimant's medical records and a

videotape of someone performing claimant's job, opined that

claimant's job did not contribute to her CTS. Dr. Cassidy

disagreed with Dr. Coccia's conclusions and opinions.

In awarding benefits to claimant and concluding that she

established by clear and convincing evidence the compensability

of her CTS as an ordinary disease of life, the commission found

as follows:

On this conflicting medical evidence the deputy commissioner concluded that the

- 4 - claimant proved a compensable ordinary disease of life. We agree. We have carefully considered the employer's argument that, while both of these physicians were specialists in orthopedics, Dr. Coccia had more experience in hand surgery and carpal tunnel syndrome. On the other hand, Dr. Cassidy was the claimant's treating physician, and was firm in his opinion of causation. Dr. Cassidy's records indicate that he was aware of the claimant's non-work activities. Regarding Dr. Coccia's opinion, the claimant testified that the number of items she was required to sew on a given day far exceeded Dr. Coccia's estimate. We do not find convincing Dr. Coccia's assertion that the claimant's repetitive work as a seamstress would not, to a reasonable degree of medical certainty, contribute to the development of her [CTS].

"'"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.'"

National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 653, 507

S.E.2d 667, 669 (1998) (citations omitted), aff'd, ___ Va. ___,

___ S.E.2d ___ (2000).

Code § 65.2-400(C) provides that "the condition of carpal

tunnel syndrome [is] not [an] occupational disease[] but [is]

[an] ordinary disease[] of life as defined in [Code]

§ 65.2-401." Pursuant to Code § 65.2-401 "the elements required

to prove a compensable ordinary disease of life must be

'established by clear and convincing evidence, (not a mere

probability).'" Staton, 28 Va. App. at 654, 507 S.E.2d at 669.

- 5 - "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.'"

Id. (citations omitted).

Dr. Cassidy's opinion and claimant's testimony constitute

credible evidence to support the commission's findings. Dr.

Cassidy firmly expressed his opinion without any doubt. Based

upon his opinion and claimant's testimony, the commission, as

the trier of fact, could conclude that the evidence proved

clearly and convincingly that claimant's CTS was a compensable

ordinary disease of life.

For these reasons, we affirm the commission's decision.

Affirmed.

- 6 -