Neighbors of VA, Inc. v. Nancy A. Digangi

• Court: Court of Appeals of Virginia
• Decided: September 12, 1995
• Docket: 2064943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, * Elder and Fitzpatrick Argued at Salem, Virginia

NEIGHBORS OF VIRGINIA, INC., ET AL. MEMORANDUM OPINION** BY v. Record No. 2064-94-3 JUDGE LARRY G. ELDER SEPTEMBER 12, 1995 NANCY A. DIGANGI

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Cathleen P. Welsh (Wharton, Aldhizer & Weaver, P.L.C., on brief), for appellants. (Roger A. Ritchie; Roger Ritchie & Partners, P.L.C., on brief), for appellee.

In this workers' compensation case, Neighbors of Virginia,

Inc. and Manufacturers Alliance Insurance Company (collectively

"employer") appeal the full commission's award of benefits to

Nancy A. DiGangi (claimant). Employer asserts that claimant's

condition, right lateral epicondylitis, is not compensable as an

occupational disease under Code § 65.2-401. Because clear and

convincing evidence proved that claimant suffered from an

occupational disease, we affirm the commission's award of

benefits.

Claimant, a store manager, worked a "double shift" on

February 13, 1993 at the Neighbors Store in McGaheysville, which

* Justice Koontz participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. was owned by employer. Claimant shoveled snow in the store's

parking lot area for at least two hours during her shift, per

employer's request, as she had done in the past. While she was

shoveling snow, claimant developed severe pain in her right arm,

near her elbow.

Claimant received treatment from Dr. Dean Woodard beginning

on March 4, 1993, who described claimant's condition as lateral

epicondylitis (known as tennis elbow). Dr. Woodard stated that

claimant's pain was attributable to a work-related condition

caused by the heavy and repetitive nature of her work and that

claimant sustained "an occupational disease (injury)." Employer terminated claimant on March 30, 1993. Dr. Woodard

released claimant to light duty work on April 7, 1993,

restricting use of her right arm.

On April 20, 1993, claimant was examined by Dr. Frederick L.

Fox, an orthopedic surgeon, who also diagnosed her condition as

"tennis elbow." Dr. Fox stated that claimant sustained an

occupational disease, and he indicated that all six of Code

§ 65.2-400's elements were satisfied.

The deputy commissioner denied claimant's claim, finding

that her right lateral epicondylitis was not a disease under the

Workers' Compensation Act. The commission reversed and awarded

claimant benefits. The commission considered claimant's

condition an ordinary disease of life pursuant to Code § 65.2-401

and found that the evidence was sufficient to meet the

-2- requirements of Code §§ 65.2-400 and -401.

We hold that the commission did not err in determining that

claimant proved the necessary elements of Code § 65.2-401 and

that she suffered from a compensable occupational disease. On

review, we construe the evidence in the light most favorable to

the party prevailing before the commission. 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

that is conclusive and binding on this Court when supported by

credible evidence. Ross Laboratories v. Barbour, 13 Va. App.

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

In Merillat Industries, Inc. v. Parks, 246 Va. 429, 432, 436

S.E.2d 600, 601 (1993), the Supreme Court stated that the

Workers' Compensation Act "requires that the condition for which

compensation is sought as an occupational disease must first

qualify as a disease." While the Supreme Court declined to

articulate a definition of "disease" in Merillat, see Commonwealth/Dept. of State Police v. Haga, 18 Va. App. 162, 165,

442 S.E.2d 424, 425 (1994), we did so in Piedmont Mfg. Co. v.

East, 17 Va. App. 499, 503, 438 S.E.2d 769, 772 (1993), where we

defined disease as:

any 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 and whose etiology, pathology, and prognosis may be known or unknown.

-3- See also Haga, 18 Va. App. at 166, 442 S.E.2d at 426.

Medical records produced by Doctors Woodard and Fox prove

that claimant's right elbow was afflicted by lateral

epicondylitis, a condition properly characterized as a disease.

"Accordingly, the commission considered claimant's condition an

ordinary disease of life within the meaning of Code § 65.2-401,"

Piedmont, 17 Va. App. at 504, 438 S.E.2d at 773, and credible

evidence supports the commission's finding in this regard. Although her condition was characterized as an ordinary

disease of life, claimant also met her burden of producing clear

and convincing evidence that her ordinary disease of life was

employment-related. Code § 65.2-401. See Piedmont, 17 Va. App.

at 504, 438 S.E.2d at 773. First, claimant established to a

reasonable degree of medical certainty that the disease (1) arose

out of and in the course of her employment as provided in Code

§ 65.2-400; (2) did not result from causes outside of the

employment; (3) was characteristic of the employment; and (4) was

caused by conditions peculiar to the employment. Island Creek

Coal Co. v. Breeding, 6 Va. App. 1, 10, 365 S.E.2d 782, 788

(1988). As the commission stated, neither Doctor Woodard nor

Doctor Fox was equivocal in this area. Because claimant met the

requirements of Code §§ 65.2-400 and -401, the commission did not

err in awarding her benefits.

For the foregoing reasons, we affirm the commission's award.

Affirmed.

-4- Koontz, J., dissenting.

For the reasons more fully stated in my dissent in Perdue

Farms, Inc. v. McCutchan, ___ Va. App. ___, ___, ___ S.E.2d ___,

___ (1995)(Koontz, J., dissenting), I respectfully dissent.

-5-