Lydia S. Hamblin v. Wal-Mart Stores

• Court: Court of Appeals of Virginia
• Decided: December 18, 2001
• Docket: 2239014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Retired Judge Duff*

LYDIA S. HAMBLIN MEMORANDUM OPINION ** v. Record No. 2239-01-4 PER CURIAM DECEMBER 18, 2001 WAL-MART STORES, INC. AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Lawrence J. Pascal; Ashcraft & Gerel, LLP, on brief), for appellant.

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

Lydia S. Hamblin contends the Workers' Compensation

Commission erred in finding that she failed to prove that her

bilateral carpal tunnel syndrome ("CTS") constituted an ordinary

disease of life compensable under Code § 65.2-401. 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. See Rule 5A:27.

For an ordinary disease of life to be treated as a

compensable occupational disease, an employee must prove, by

* Retired Judge Charles H. Duff took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. clear and convincing evidence, to a reasonable degree of medical

certainty, that the disease arose out of and in the course of

the employment, did not result from causes outside of the

employment, was characteristic of the employment, and was caused

by the conditions peculiar to the employment. See Teasley v.

Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50, 415 S.E.2d

596, 598 (1992); see also Code § 65.2-401. Evidence is clear

and convincing when it produces in the fact finder "'a firm

belief or conviction as to the allegations 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).

In ruling that Hamblin failed to carry her burden of proof,

the commission found as follows:

We affirm the deputy commissioner, who concluded that [Hamblin] exaggerated her job duties at the hearing. Dr. [Jon D.] Peters did not have a complete and accurate description of [Hamblin's] job duties or of her outside activities. We therefore agree that [Hamblin] did not carry her burden of proof.

Moreover, the medical evidence does not prove that any carpal tunnel condition was caused by [Hamblin's] work activities by clear and convincing evidence. [Hamblin's] treating surgeon, Dr. [Paul] Mecherikunnel, could not state that the [CTS] was caused by the work. He did not know if there was a - 2 - causal relationship to her work or if the work was a primary or contributory factor to the condition's development. This opinion was shared by Dr. [Richard S.] Blume.

[Hamblin] primarily relies on the opinion of Dr. Peters. However, his opinion is not dispositive because he did not have complete or accurate information about [Hamblin's] work activities. The Commission gives little weight to opinions based upon inaccurate or incomplete histories.

As fact finder, the commission was entitled to conclude

that when Hamblin testified, she exaggerated her job duties as a

snack bar manager. It is well settled that credibility

determinations are within the fact finder's exclusive purview.

See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,

363 S.E.2d 433, 437 (1987). She testified that she worked more

hours and days than she reported to the insurer in her recorded

statement. Furthermore, her lengthy and detailed testimony

regarding her job duties was not consistent with the videotape

introduced by employer. The videotape showed a three and

one-half-hour period of time in the snack bar, including the

busy lunchtime hour. In addition, Hamblin's testimony regarding

her job duties was not consistent with her written job

description, which she did not provide to Dr. Peters.

The commission was also entitled to give little probative

weight to Dr. Peters' opinion. No evidence showed that

Dr. Peters ever reviewed Hamblin's medical records, her

deposition testimony, a written job description, or the - 3 - videotape. Thus, the commission could infer that Dr. Peters'

opinion was not based upon a complete understanding of Hamblin's

job duties or her outside activities.

In addition, the commission viewed Dr. Peters' opinion in

light of the opinions of Drs. Mecherikunnel and Blume. "Medical

evidence is not necessarily conclusive, but is subject to the

commission's consideration and weighing." Hungerford Mechanical

Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215

(1991). Dr. Mecherikunnel, who performed carpal tunnel release

surgery on Hamblin, could not state that Hamblin's CTS was

caused by her employment. He also noted that Hamblin's medial

nerve was not compressed during her surgery. Dr. Blume

questioned whether Hamblin actually had CTS. He noted that her

clinical symptoms and diagnostic testing did not rule out

cervical radiculopathy; that her symptoms did not improve after

her surgery; and that during the surgery the median nerve was

free throughout. Dr. Blume's opinion was based upon a review of

the medical records of Drs. Shor, Peters, Mecherikunnel and

Corporate Health Center. He also reviewed personnel records,

Hamblin's recorded statement and deposition testimony, a written

job description, and the videotape of Hamblin's job.

Based upon this record, we cannot find as a matter of law

that the evidence sustained Hamblin's burden of proof. See

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

- 4 - 833, 835 (1970). The medical evidence was subject to the

commission's factual determination. The commission's findings

on those facts are binding and conclusive on appeal. Id.

Because we affirm the commission's decision that Hamblin

failed to prove that her CTS constituted a compensable ordinary

disease of life, it is not necessary for us to address whether

Hamblin proved that she adequately marketed her residual work

capacity.

Affirmed.

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