Gwaltney of Smithfield v. Clarice Cypress

• Court: Court of Appeals of Virginia
• Decided: April 25, 2000
• Docket: 2505991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bray and Bumgardner Argued at Chesapeake, Virginia

GWALTNEY OF SMITHFIELD, LTD. AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS MEMORANDUM OPINION* BY v. Record No. 2505-99-1 JUDGE RUDOLPH BUMGARDNER, III APRIL 25, 2000 CLARICE CYPRESS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

J. Derek Turrietta (William W. Nexsen; Stackhouse, Smith & Nexsen, on brief), for appellants.

Barbara Evans-Yosief (Gerald G. Poindexter, on brief), for appellee.

The Workers' Compensation Commission awarded benefits to

Clarice Cypress for left-hand carpal tunnel syndrome but found

that she had unjustifiably refused selective employment.

Gwaltney of Smithfield, Ltd. and its insurer contend that the

commission erred in finding (1) that the claimant's left-hand

carpal tunnel syndrome is a compensable ordinary disease of

life, and (2) that she was entitled to temporary total

disability benefits after June 19, 1998 because of her

right-hand carpal tunnel release surgery. For the following

reasons, we affirm.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. We view the evidence in the light most favorable to the

claimant, the prevailing party below. See R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). "'Whether a disease is causally related to the

employment and not causally related to other factors is . . . a

finding of fact.'" Ross Laboratories v. Barbour, 13 Va. App.

373, 377-78, 412 S.E.2d 205, 208 (1991) (quoting Island Creek

Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788

(1988)). When credible evidence supports a finding of fact, it

is conclusive and binding on this Court. See id. The fact that

there is contrary medical evidence in the record is of no

consequence if there is credible evidence to support the

commission's decision. See Chanin v. Eastern Virginia Medical

School, 20 Va. App. 587, 590, 459 S.E.2d 523, 524 (1995).

The claimant was a fatback trimmer who used a motorized

circular knife to trim meat. She held the knife with her right

hand and pulled the meat with her left. The claimant's job

required sixty weight-bearing repetitive motions per minute.

Prior to working for the employer she had no medical problems

involving her hands or wrists.

The claimant sought treatment from the employer's clinic in

November 1996 and again in June 1997 for pain in her "hands and

fingers." She was given an analgesic rub, ice for her hands,

and ibuprofen. The clinic did not refer her to a doctor. In

August 1997, the claimant stopped working because of the pain.

- 2 - The employer's medical services coordinator recommended she go

to a doctor.

The claimant saw Dr. Timothy N. Lee, one of the employer's

doctors, on August 27, 1997. Dr. Lee returned the claimant to

modified duty several times from August 28, 1997 through May 26,

1998 and recommended the use of wrist splints. On September 2,

1997, Dr. Lee noted that the claimant should "continue work

restrictions, specifically limited use of left hand but avoid

repetitive grabbing and use with left hand. No use of the right

hand since this continues to be the most symptomatic." When

light duty work was unavailable and the claimant's condition

failed to improve, he took her off work.

In August and September, 1997, Dr. Lee diagnosed the

claimant with tendinitis/tenosynovitis in both hands and wrists.

By September 16, 1997, Dr. Lee diagnosed probable bilateral

carpal tunnel syndrome. He referred her to physical therapy and

to Dr. Bruce I. Tetalman, a rehabilitation specialist with

expertise in performing EMGs. On September 26, 1997, Dr.

Tetalman performed an EMG, which was positive for moderate to

severe carpal tunnel syndrome in both wrists. In his October 3,

1997 EMG report, he diagnosed the claimant with "bilateral

carpal tunnel syndrome of moderate severity, left worse than

right." On October 10, 1997, Dr. Tetalman injected both her

wrists.

- 3 - Dr. Lee's October 7, 1997 office note indicated the

claimant had bilateral carpal tunnel syndrome, although he could

not confirm the diagnosis without further testing. He removed

her from work for two weeks. The claimant returned to light

duty on October 20, 1997, but continued to have pains in her

hands and wrists. Dr. Lee reviewed Dr. Tetalman's October 3,

1997 report, the EMG studies, and the claimant's occupational

and medical history. By letter dated November 11, 1997, Dr. Lee

concluded she is "suffering from bilateral carpal tunnel

syndrome and that this condition arose out of and in the course

of her employment." He indicated that there was no evidence of

non-work related causes of her CTS and opined that she "may very

well require surgery for complete resolution of her problem."

In a December 5, 1997 office note, Dr. Lee indicated that

the claimant has severe pain and numbness in both hands and

wrists and that the "Tinel's and Phalen's remain positive." He

continued her current therapy and recommended she stay out of

work because any suitable modified job exacerbated her

condition.

On December 19, 1997, Dr. Lee indicated that conservative

therapy, which consisted of "splinting, s/p steroid injections

in both wrists, anti-inflammatory medications and prolonged

inactivity and time away from work," had not relieved the

claimant's pain. He recommended surgery and referred her to Dr.

Robert F. Brewer, a hand surgeon.

- 4 - Dr. Brewer saw the claimant on January 9, 1998. His

consultation note indicated the "[e]xamination is very

questionable in that she does not seem to have a specific

Tinel's sign over the median nerve." He found no objective

indications that the claimant suffered from carpal tunnel

syndrome and believed that her symptoms might have a

psychological component.

In January 1998, Dr. Lee recommended another EMG study.

Dr. Tetalman performed the EMG, and his January 23, 1998 report

indicated the claimant had CTS on the right but not the left.

Dr. Tetalman performed a third EMG April 3, 1998 at the

insurer's request. In his April 6, 1998 letter, Dr. Tetalman

indicated the claimant's left CTS had resolved and the right CTS

"has advanced and is now moderately severe." He also noted that

"initially her carpal tunnel was due to cumulative trauma

disorder."

On May 5 and May 26, 1998, Dr. Lee released the claimant,

who had not worked since November 1997, to light duty and

referred her back to Dr. Tetalman. Dr. Lee's diagnosis in both

reports was bilateral CTS. The claimant's gynecologist advised

against her return to work because of hypertension and suggested

the claimant get a second opinion about the pain and swelling in

her wrists.

The claimant visited Dr. Douglas A. Wayne on June 10, 1998.

His office notes indicate that "she had very distinct positive

- 5 - Tinels over the carpal tunnels bilaterally and positive median

nerve compression test and positive Phalens test." Dr. Wayne

found CTS in both wrists and referred her to Dr. Stephen J.

Leibovic, a hand surgeon.

In a June 11, 1998 letter to Dr. Wayne, Dr. Leibovic

concluded that the claimant "clearly has carpal tunnel syndrome,

bilaterally. This is confirmed on the examination and EMG/NCS."

Dr. Leibovic added, "meat packing plants are notorious for work

that is difficult for the hands that can cause carpal tunnel

syndrome. . . . There was in fact no history of pregnancy when

the symptoms began. There is no doubt that her work in the meat

packing plant exacerbated, and possibly caused, the carpal

tunnel syndrome." On June 19, 1998, Dr. Leibovic operated on

the claimant's right hand and scheduled her for left-wrist

surgery.

The commission concluded that the claimant proved her CTS

was a compensable ordinary disease of life under Code

§ 65.2-401. 1 It found that "the claimant has proven that she

suffers from left carpal tunnel syndrome which became

objectively asymptomatic following her removal from the

workplace as of November 4, 1997. . . . [T]he claimant's

1 Code § 65.2-401 provides that an ordinary disease of life "may be treated as an occupational disease . . . if . . . the disease exists and arose out of and in the course of employment . . . and . . . is characteristic of the employment and was caused by conditions peculiar to such employment."

- 6 - treating physicians diagnosed the claimant with left carpal

tunnel syndrome prior to November 1997 and there is no contrary

evidence before us that would lead to a different conclusion."

The employer contends the commission erred because Drs. Lee,

Brewer, and Tetalman indicated that there was no left CTS or the

CTS was of questionable origin.

In order to prove a compensable ordinary disease of life

under Code § 65.2-401, the claimant must establish "by clear and

convincing evidence, to a reasonable medical certainty," that

her injury arose out of and in the course of her employment. 2

See Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686

(1938). Evidence is clear and convincing when it produces in

the fact finder "a firm belief or conviction as to the

allegation sought to be established. It is . . . 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)

(citation omitted).

Claimant's treating physician, Dr. Lee, believed as early

as September 16, 1997 that the claimant had bilateral CTS.

After Dr. Tetalman conducted further tests, Dr. Lee confirmed

2 The General Assembly amended Code § 65.2-401 in 1997 to delete "to a reasonable medical certainty" and to add "(not a mere probability)."

- 7 - and reiterated his diagnosis of CTS in his November 11, 1997

letter. He unequivocally indicated that the CTS arose out of

and in the course of the claimant's employment. Dr. Tetalman's

EMG report of October 3, 1997, also concludes that the claimant

had bilateral CTS of moderate severity. Dr. Tetalman's April 6,

1998 note indicated that her initial CTS "was due to cumulative

trauma disorder." While Dr. Brewer questioned the origin of the

claimant's symptoms and found no indication of CTS, he evaluated

the claimant in January 1998 after she had been off from work

for several months.

It was reasonable to conclude that an overuse disease would

improve with inactivity. Dr. Brewer's evidence did not

contradict the findings of both Drs. Lee and Tetalman that the

claimant had CTS in the fall of 1997. Additionally, there was

evidence she suffered from CTS as late as the summer of 1998.

The claimant did not engage in any non-work related activities

that could have caused her CTS, and she did not have any

problems with her hands or wrists before working for the

employer. The claimant's previous job as a line worker chopping

meat at another plant is immaterial because her CTS symptoms did

not develop until she worked for the employer.

In National Fruit Product Co. v. Staton, 28 Va. App. 650,

654, 507 S.E.2d 667, 669 (1998), aff'd, __ Va. __, __ S.E.2d __

(2000), the Court affirmed the claimant's award of benefits.

The claimant's doctor opined that there was a "high probability"

- 8 - the employment caused her CTS. The court held that the doctor's

opinion, coupled with the claimant's own testimony, satisfied

her burden of proving the injury arose out of and in the course

of her employment by clear and convincing evidence. Unlike

Staton, Dr. Leibovic's opinion that the claimant's employment

"possibly caused" her CTS was not the only evidence of

causation. Dr. Lee, the claimant's treating physician,

definitively stated her CTS arose out of and in the course of

her employment. This November 11, 1997 opinion was

uncontradicted and corroborated the claimant's testimony.

Additionally, Dr. Tetalman indicated that her CTS initially

arose from "cumulative trauma syndrome," which logically

resulted from her work for the employer. Dr. Brewer's

indication in January 1998 that the claimant's symptoms were of

questionable origin does not refute the fall diagnosis. The

commission resolves questions of fact. We conclude there is

credible evidence to support the commission's finding that the

claimant proved she had CTS and that it arose out of and in the

course of her employment.

The employer also argues the commission erred in awarding

temporary total disability benefits after the right-hand carpal

tunnel release surgery June 19, 1998. The employer argues that

the claimant "was not entitled to continuing disability because

the total disability was not attributable to the originally

compensable [right-hand CTS], but instead related to her

- 9 - pregnancy." The claimant was diagnosed with right-hand CTS

before she became pregnant in October 1997. While the pregnancy

impeded her recovery, it did not cause the CTS. Dr. Tetalman

attributed "the worsening of the [claimant's] right carpal

tunnel to her pregnancy." The employer's argument that the

surgery was unrelated to the originally compensable ordinary

disease of life is without merit.

For the foregoing reasons, we affirm the commission's

decision.

Affirmed.

- 10 -