Great Eastern Resort Corp. v. Gordon

• Decision Date: 29 February 2000
• Docket Number: Record No. 1682-99-3.
• Citation: 525 S.E.2d 55,31 Va. App. 608
• Court: Virginia Court of Appeals
• Parties: GREAT EASTERN RESORT CORPORATION and Liberty Insurance Company v. Pamela GORDON.

525 S.E.2d 55

31 Va. App. 608

GREAT EASTERN RESORT CORPORATION and Liberty Insurance Company v. Pamela GORDON.

Record No. 1682-99-3.

Court of Appeals of Virginia, Salem.

February 29, 2000.

Thomas G. Bell, Jr. (Timberlake, Smith, Thomas & Moses, P.C., on brief), Staunton, for appellants.

No brief or argument for appellee.

Present: COLEMAN and ELDER, JJ., and COLE, Senior Judge.

COLEMAN, Judge.

Great Eastern Resort Corporation and its insurer, Liberty Insurance Company, appeal the Workers' Compensation Commission's decision awarding Pamela Gordon temporary total disability benefits. Great Eastern argues the commission erred in finding that Gordon proved by clear and convincing evidence, as required by Code § 65.2-401, that her right carpal tunnel syndrome was caused by her employment. We disagree and affirm the commission's decision.

BACKGROUND

On appeal, we view the evidence in the light most favorable to Gordon, the party prevailing before the commission. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence proved that Gordon worked for Great Eastern as a night auditor. As an auditor, she used her right hand to input the day's revenue and room charges on a machine called a "micro." The micro is a computerized cash register with a keyboard for entering data and a slot for entering invoices or "folios."

Gordon worked for Great Eastern eight hours per day, three days per week for seven and one-half years. Gordon testified that she operated the micro between one and three hours per shift, depending on how busy the resort was on a given day. She testified that due to the set-up of the work station, she was required to place her right hand at a forty-five degree angle while using her fingers to key in the data. She also fed vouchers and folios into the micro with her left hand.

In January 1997, Gordon first noticed numbness in her fingers and pain in her right wrist. In January 1998, she sought medical treatment from her regular physician, Dr. Raul Orviedo, for complaints of a herniated disc in her neck. She also reported wrist pain to Dr. Orviedo, who ordered that she undergo an MRI due to his concern that her symptoms might be related to her neck condition. After reviewing the MRI, Dr. Orviedo referred claimant to Dr. John A. Jane, Sr., a neurosurgeon.

Dr. Jane opined that the numbness in Gordon's hand and arm was not related to her neck problem and referred Gordon to Dr. Edward R. Laws, Jr., a neurosurgeon, for another opinion. In a May 22, 1998 letter to Dr. Jane, Dr. Laws diagnosed Gordon with carpal tunnel syndrome. Dr. Laws noted that Gordon's "day-to-day work involves using an instrument called a 'micros' which is a type of computerized cash register. She has repetitive movements that have precipitated and aggravated the carpal tunnel syndrome, with which she presently presents."

On June 23, 1998, after operating on Gordon's right hand, Dr. Laws wrote that "[h]er symptoms developed and became aggravated as she was using ... an instrument called a micros, which I understand is a computerized cash register. This type of hand problem is commonly associated with this type of repetitive occupational trauma." Gordon denied engaging in any hobbies or activities outside of her employment involving repetitive movements of her right hand. She admitted she had a long history of smoking two packs of cigarettes per day and stated that she told Dr. Laws' nurse of this history. Gordon denied having been diagnosed with carpal tunnel syndrome before May 1998.

ANALYSIS

"Whether a disease is causally related to the employment and not causally related to other factors is ... a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 12, 365 S.E.2d 782, 788 (1988). We accept the commission's factual findings when they are supported by credible evidence. See James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989).

Since 1997, the Code has provided that "`condition[s] of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] § 65.2-401.'" National Fruit Prod. Co. v. Staton, 28 Va.App. 650, 654, 507 S.E.2d 667, 669 (1998). For an ordinary disease of life to be compensable, a claimant must prove by "clear and convincing evidence, (not mere probability)" that the disease (1) arose out of and in the course of his employment, (2) did not result from causes outside of the employment, and (3) follows as an incident of an occupational disease, is an infectious or contagious disease contracted in the course of the employment listed in Code § 65.2-401(2)(b), or is characteristic of the employment and was caused by conditions peculiar to the employment. Code § 65.2-401; see also Lindenfeld v. City of Richmond Sheriff's Office, 25 Va.App. 775, 784, 492 S.E.2d 506, 510 (1997). However, disability resulting from work-related aggravation of a pre-existing disease is not compensable. See Ashland Oil Co. v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983) (per curiam).

"Clear and convincing evidence has been defined as 'that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere

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