Lois v. Rucker v. Bacova Guild, Ltd.

• Court: Court of Appeals of Virginia
• Decided: November 21, 1995
• Docket: 1449953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

LOIS V. RUCKER

v. Record No. 1449-95-3 MEMORANDUM OPINION * PER CURIAM BACOVA GUILD, LTD. NOVEMBER 21, 1995 AND ASSOCIATED INDEMNITY CORPORATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Leslie Ann Shaner; O'Keefe & Spies, on brief), for appellant.

(Christopher M. Kite; Monica L. Taylor; Gentry, Locke, Rakes & Moore, on brief), for appellees.

Lois V. Rucker ("claimant") contends that the Workers'

Compensation Commission erred in finding that she failed to prove

that the osteoarthritis of her right wrist and hand and her

right-sided carpal tunnel syndrome were causally related to her

employment. Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. Rule

5A:27.

A claimant must prove the existence of an occupational

disease by a preponderance of the evidence. Virginia Dep't of

State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308

(1985). "Whether a disease is causally related to the employment

and not causally related to other factors . . . is a finding of * Pursuant to Code § 17-116.010 this opinion is not designated for publication. fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365

S.E.2d 782, 788 (1988). Unless we can say as a matter of law

that claimant's evidence sustained her burden of proof, the

commission's findings are binding and conclusive upon us. Tomko

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

An occupational disease is one "arising out of and in the

course of employment." Code § 65.2-400(A). "A disease shall be

deemed to arise out of the employment" when the evidence

establishes six elements. Code § 65.2-400(B). Elements (2) and

(6) require evidence showing "[a] direct causal connection

between the conditions under which work is performed and the

occupational disease" and that the disease "had its origin in a

risk connected with the employment and flowed from that source as

a natural consequence. . . ." Code § 65.2-400(B)(1) and (B)(6).

The commission found that claimant failed to establish a

compensable occupational disease under the requirements of Code 1 § 65.2-400. At best, Dr. Charles F. Andersen, claimant's treating

orthopedic surgeon, opined that her employment aggravated her

pre-existing osteoarthritis and carpal tunnel syndrome; he could

not state with any degree of reasonable medical certainty that 1 Because there was no evidence that claimant's conditions may have resulted from substantial exposure outside of her employment, the commission properly analyzed her application under Code § 65.2-400. See Wells v. Commonwealth, Dep't of Transp., 15 Va. App. 561, 565, 425 S.E.2d 536, 538 (1993).

2 her employment caused her conditions. A disease that is merely

aggravated by the employment does not establish causation and is

not an occupational disease. Ashland Oil Co. v. Bean, 225 Va. 1,

3-4, 300 S.E.2d 739, 740 (1983). In addition, Dr. Hugh J. Hagan,

III, who examined claimant at employer's request, could not

render an opinion to a reasonable degree of medical certainty

that claimant's conditions were caused by her work.

Based upon the absence of any medical opinion that

claimant's work caused her carpal tunnel syndrome or

osteoarthritis, claimant did not prove as a matter of law a

compensable occupational disease pursuant to the requirements of

Code § 65.2-400. Thus, the commission did not err in denying her

application based upon a finding that she did not prove that her

conditions were caused by her employment or that they had their

origins in a work connected risk. Accordingly, we affirm the commission's decision. We need

not address the "disease" issue as our ruling on the causation

issue disposes of this appeal. Affirmed.