Sandra S. Burress v. Hubbell Lighting, Inc.

• Court: Court of Appeals of Virginia
• Decided: April 2, 2002
• Docket: 2345013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia

SANDRA S. BURRESS MEMORANDUM OPINION* BY v. Record No. 2345-01-3 JUDGE LARRY G. ELDER APRIL 2, 2002 HUBBELL LIGHTING, INC.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Joseph J. Steffen, Jr., for appellant.

John Chadwick Johnson (Christopher M. Kite; Catherine I. Henritze; Frith Anderson & Peake, P.C., on brief), for appellee.

Sandra S. Burress (claimant) appeals from a decision of the

Workers' Compensation Commission (the commission) holding that

her employer, Hubbell Lighting, Inc. (employer), was not

responsible under the Workers' Compensation Act for her

bilateral carpal tunnel syndrome. On appeal, claimant contends

she presented sufficient credible evidence to prove her disease

was compensable under Code § 65.2-401 and that the commission's

reliance on the opinion of employer's "hired gun" on the issue

of causation was erroneous. We hold the commission was entitled

to conclude that claimant presented insufficient credible

evidence to prove her employment was the primary source of her

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. carpal tunnel syndrome. Thus, we affirm the commission's denial

of benefits.

The Workers' Compensation Act (the Act) provides that

carpal tunnel syndrome is an "ordinary disease[] of life as

defined in [Code] § 65.2-401." Code § 65.2-400(C). For an

ordinary disease of life to be compensable under Code

§ 65.2-401, claimant must prove by "clear and convincing

evidence, (not a mere probability)," 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"; and (3) "follows as an incident of occupational

disease . . . [;] is an infectious or contagious disease

contracted in the course of [specified types of employment]; or

. . . is characteristic of the employment and was caused by

conditions peculiar to such employment." Code § 65.2-401.

Code § 65.2-400(B) provides that a disease arises out of

the employment "if there is[, inter alia,] . . . [a] direct

causal connection between the conditions under which work is

performed and the occupational disease; . . . [and] [i]t can be

fairly traced to the employment as the proximate cause . . . ."

Code § 65.2-400(B) (emphases added). In determining whether a

disease was caused by the employment, we have recognized that

"pinpointing a single source for an ordinary disease of life

will often be a difficult if not an impossible assignment."

Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 - 2 - (1991). Thus, we have held the requirement that a claimant

establish the source of the disease means she must point "not to

a single source [of the disease], to the complete exclusion of

all other sources, but to the primary source . . . ." Id.; see

Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544,

551, 425 S.E.2d 525, 530 (1993).

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 v.

Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting

Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954)).

The commission's determination regarding causation is a

finding of fact. Marcus, 15 Va. App. at 551, 425 S.E.2d at 530.

In determining whether credible evidence exists to support the

commission's findings of fact, "the appellate court does not

retry the facts, reweigh . . . the evidence, or make its own

determination of the credibility of the witnesses." Wagner

Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991). Thus, unless we can say as a matter of law that

claimant's evidence sustained her burden of proving causation,

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

Marcus, 15 Va. App. at 551, 425 S.E.2d at 530; Tomko v. - 3 - Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).

Claimant offered expert opinions from two physicians,

Drs. Rollin J. Hawley and Kerry B. Donnelly, neither of which

the commission found sufficient to meet claimant's burden of

proving causation by clear and convincing evidence.

Dr. Hawley, a neurologist, appears to have seen claimant on

only one occasion, in January 2000 when claimant's internist

referred her for the nerve conduction studies which confirmed

her bilateral carpal tunnel syndrome (CTS). Dr. Hawley opined

at that time that claimant's CTS was "probably mostly

occupational, although her obesity might be contributing." He

appeared subsequently to indicate, in responding to a letter

from claimant's attorney, that he agreed her "repetitive work

duties were the primary cause of her development of [CTS]" and

that her obesity was a contributing factor. However, he agreed

with this assertion "to a reasonable degree of medical

probability," whereas Code § 65.2-401 requires more than "a mere

probability." Further, the record contains no indication that

Dr. Hawley had any awareness of claimant's job requirements,

other than the fact that she sometimes used power tools at work.

The record also contains no indication Dr. Hawley was fully

aware of claimant's other medical conditions. Although he

mentioned her thyroid condition and described it as "stable," he

was unaware of the dosage of medication she took for that - 4 - condition and apparently also was unaware of the results of her

most recent thyroid function test. Finally, he did not mention

her ongoing amenorrhea or possible early menopause, conditions

documented in claimant's other medical records.

Dr. Donnelly, an orthopedic surgeon, opined when he first

saw claimant on April 27, 2000, merely that her CTS was "work

related" because "[s]he uses an air gun at work." After

Dr. Donnelly reviewed claimant's job description and her medical

history, he continued to believe her CTS was "certainly work

related and aggravated by her work activities." However, the

most he could say was that it was "highly probable" that

claimant's work activities were "one of the major factors" in

causing her CTS. He noted that although most of claimant's work

would be done with claimant's dominant right hand, claimant's

nerve conduction studies showed similar median neuropathy in

both hands. Further, he indicated claimant's history of

hypothyroidism, amenorrhea and possible "early menopause," and

he noted all of these conditions "can be associated with the

development of [CTS,] particularly thyroid imbalance."

Dr. Darrell Powledge reviewed claimant's case at the

request of employer. Dr. Powledge had practiced occupational

medicine for 14 years and indicated that "[e]stablishing whether

or not a medical disorder has been caused by one's occupation is

a common task we undertake in this specialty." Dr. Powledge

also explained that his masters thesis involved designing an - 5 - assessment tool for evaluating whether particular jobs posed a

risk for the development of CTS. Dr. Powledge did not examine

claimant but reviewed her medical records, deposition and a

videotape of her job, and he visited claimant's job site, where

he performed some of her job tasks under the direction of her

supervisor.

Dr. Powledge explained that in order for repetitive work to

cause CTS, the repetition must be "accompanied by grip of

sufficient force" and that vibration and cold contribute to the

development of CTS only indirectly by causing one to increase

grip strength. He noted it is "imperative" that each hand be

assessed individually for exposure to these forces because "[i]t

is unusual for each hand to be exposed to the same amount of

work." He described in detail the physical motion and grip

strength required for claimant's job and evaluated its ability

to cause CTS using what he described as a "well respected"

methodology called the "strain index." He opined that the

"strain index" was "the most objective analytical tool for

evaluating jobs for the risk they pose for the development of

upper extremity disorders."

Using this methodology, Dr. Powledge opined that claimant's

job "does not present the physical factors that can be causative

of CTS in sufficient magnitude to be causative of CTS." In

addition to Dr. Powledge's own analysis of claimant's job

requirements, he referred to her deposition, which he - 6 - characterized as "stat[ing] that [claimant] used her right hand

predominantly at work especially with the air tool which she

implicated as being very stressful." However, he noted

claimant's additional statement that "her symptoms are equally

bad in both hands," a fact confirmed by the results of her nerve

conduction studies, which indicated moderately severe CTS in

both hands. Dr. Powledge concluded, based on claimant's

description of her job, his analysis of claimant's job, and the

bilateral nature of her CTS, "that the job was not a risk for

the development of CTS in either hand."

Dr. Powledge noted claimant had several other conditions,

amenorrhea/menopausal symptoms, obesity, hypothyroidism

requiring treatment, and fluid retention, all of which have been

shown to be causative of, associated with, or associated with

the increased risk of development of CTS. He opined, "with far

more than a reasonable degree of medical certainty[,] that

[claimant's] bilateral [CTS] was not caused by her work" for

employer.

"Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991). Thus, the commission was entitled to

conclude, as it did, that "claimant's evidence falls far short

of the clear and convincing standard required by Code

§ 65.2-401" and that Dr. Powledge's opinion was "extremely - 7 - persuasive." Dr. Hawley related claimant's CTS to her work only

to a reasonable degree of medical probability, which does not

amount to clear and convincing evidence as required by the

statute. See Code § 65.2-401. Further, as the commission

noted, Dr. Hawley qualified his opinion on causation by noting

other contributing factors such as obesity, and as outlined

above, the commission was entitled to conclude Dr. Hawley

demonstrated an insufficient familiarity with claimant's job

requirements and additional medical history. As the commission

further noted, Dr. Donnelly opined that "claimant's job was just

one of the major factors" causing her CTS, a "statement [which]

implies the existence of other[] major factors in the

development of the condition." Dr. Donnelly in fact

acknowledged that claimant's hypothyroidism and "early

menopause" were both conditions which could be associated with

the development of CTS. Thus, the commission was entitled to

conclude Dr. Donnelly's opinion did not establish, as required

by both the language of Code § 65.2-400(B)(3) and Marcus, that

claimant's work was "the proximate cause" or "the primary

source" of her CTS.

In addition to the weaknesses in claimant's own evidence,

the commission found highly credible the opinion of

Dr. Powledge. It emphasized that Dr. Powledge was

board-certified in occupational medicine, had extensively

studied CTS and the relationship between workplace activities - 8 - and the development of CTS, and had carefully considered the

physical requirements of claimant's work for employer. It found

well reasoned, as it was entitled to do, Dr. Powledge's opinion

that claimant's job, which primarily required the use of her

right hand, "was not a risk factor" in the development of CTS

and that claimant's amenorrhea, menopausal symptoms, obesity,

hyperthyroidism and fluid retention were conditions which could

be causative of her CTS.

We note, however, that neither our decision nor the

commission's compels the conclusion that an expert must perform

or visualize a job firsthand or by video in order to render a

credible medical opinion. We also note Dr. Powledge's admission

that the "strain index" is only "semiquantitative." We view the

"strain index" as a highly subjective methodology in light of

Dr. Powledge's use of vague terms not defined in his report,

such as "light" to describe the "intensity of exertion," "small"

to describe the "duration of grip as a percentage of the work

cycle," and "good to very good" to describe "wrist posture."

Finally, we note, as the deputy commissioner did, that the task

of making the ultimate finding regarding causation remains with

the commission and the Courts and not with medical personnel.

The fact that we may have reached a contrary conclusion

regarding Dr. Powledge's testimony is immaterial in view of the

commission's finding that the opinions of Drs. Hawley and

Donnelly were insufficient to meet claimant's burden of proving - 9 - causation by clear and convincing evidence. Because we cannot

say as a matter of law that claimant sustained her burden of

proof, we affirm.

Affirmed.

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