Greif Companies/Genesco, Inc. v. Hensley

• Decision Date: 18 June 1996
• Docket Number: No. 0991-95-3,0991-95-3
• Citation: Greif Companies/Genesco, Inc. v. Hensley, 471 S.E.2d 803, 22 Va.App. 546 (Va. App. 1996)
• Parties: The GREIF COMPANIES/GENESCO, INC. and St. Paul Fire and Marine Insurance Company v. Barbara Jean HENSLEY, the Greif Companies/Genesco, Inc. and Liberty Mutual Fire Insurance Company. Record ., Richmond
• Court: Virginia Court of Appeals

Page 803

471 S.E.2d 803

22 Va.App. 546

The GREIF COMPANIES/GENESCO, INC. and St. Paul Fire and Marine Insurance Company v. Barbara Jean HENSLEY, the Greif Companies/Genesco, Inc. and Liberty Mutual Fire Insurance Company.

Record No. 0991-95-3.

Court of Appeals of Virginia Richmond.

June 18, 1996.

Rehearing En Banc Granted July 31, 1996.

Joseph C. Veith, III (Montedonico, Hamilton & Altman, P.C., on briefs), Fairfax, for appellants.

A. Thomas Lane, Jr., Arlington, for appellee Barbara Jean Hensley.

J. David Griffin (Fowler, Griffin, Coyne & Coyne, P.C., on brief), Winchester, for appellees The Greif Companies/Genesco, Inc. and Liberty Mutual Fire Insurance Company.

Before BENTON, WILLIS and BRAY, JJ.

WILLIS, Judge.

Greif Companies and St. Paul Fire and Marine Insurance Company (St. Paul) appeal the decision of the Virginia Workers' Compensation Commission awarding benefits to Barbara J. Hensley. St. Paul contends that the commission erred (1) in failing to find that Ms. Hensley's right carpal tunnel syndrome (CTS) was a new injury, (2) in refusing to set aside the April 12, 1994 award on the ground of mutual mistake, and (3) in holding St. Paul and Liberty Mutual Fire Insurance Company (Liberty) jointly responsible for the disability benefits awarded Ms. Hensley. Liberty contends that St. Paul's appeal should be dismissed because St. Paul failed in its notice of appeal to name Greif Companies as an appellee and to provide the information required by Rule 5A:11(b).

In August, 1992, Ms. Hensley was diagnosed as suffering from carpal tunnel syndrome (CTS) of the right wrist. At that time, she had been employed by Greif for twenty-six years. For the preceding eleven years, she had performed piece work as a sewing machine operator, sewing armholes into coats. This activity required use of both hands. St. Paul was Greif's workers' compensation carrier at that time. St. Paul accepted Ms. Hensley's claim as compensable and paid her temporary total disability compensation from August 31, 1992 through January 3, 1993, pursuant to an agreement of the parties and an award of the commission.

In October, 1992, Dr. G. Edward Chappell, Jr. performed a carpal tunnel release and an anterior wrist synovectomy on Ms. Hensley's right wrist. In January, 1993, she returned to work at Greif. On June 23, 1993, she was awarded compensation for a five percent permanent partial disability.

On March 11, 1994, Ms. Hensley returned to Dr. Chappell, complaining of pain and numbness in her right wrist. Dr. Chappell reported, "I believe that she has recurrent carpal tunnel syndrome stemming from her previous problem with this condition." He restricted her to performing no piece work. Ms. Hensley has not worked since March 14, 1994.

Ms. Hensley notified St. Paul's representative, Ms. Decker, of her recurrent CTS and of her unemployment. St. Paul agreed to reinstate Ms. Hensley's compensation for temporary total disability. On April 12, 1994, the commission entered an award memorializing that agreement.

On April 25, 1994, Ms. Hensley reported to Dr. Chappell that she suffered pain and numbness in her left wrist. Nerve conduction studies revealed bilateral CTS. At that time, Liberty had assumed Greif's workers' compensation coverage.

When Ms. Decker learned of the left CTS, she questioned whether the current right CTS was a new injury or a change in condition. She contacted Susan Wolf, a rehabilitation nurse consultant, who sent a questionnaire to Dr. Chappell, asking him,

Do you feel this is a new problem for Mrs. Hensley given the fact that she performed her regular job for 14 months without problems and now has a positive EMG bilaterally?

Dr. Chappell checked, "yes." St. Paul then filed an application for hearing, seeking to have the April 12, 1994 award set aside and a determination made as to whether the current right CTS was a new condition or a recurrence of the 1992 condition.

Dr. Chappell was asked to clarify his answer on the questionnaire. In response, he stated:

I checked yes because she did not have problems for several months. This is a somewhat problematic situation, and it depends on how you define "new." I believe that there was some permanency as a consequence of her having carpal tunnel syndrome in 1992 and requiring surgery, and I am on record as recognizing a 5 percent permanent partial physical impairment for her right hand.... I believe that this condition would tend to leave her hand more vulnerable to continued piece work, and in that way it can be recognized as a continuation of the problem that she had back in 1992.

Although ... the fact that she was symptom-free for at least 6 months and then started having problems again indicates that this was a "new problem."

On June 21, 1994, Ms. Hensley applied for a hearing, alleging bilateral CTS. She contended that Liberty was responsible for the CTS in both wrists or, alternatively, that both wrist conditions resulted from her 1992 condition, for which St. Paul was responsible. St. Paul amended its application for hearing, alleging that the April 12, 1994 award should be set aside because of a mutual mistake of fact. St. Paul also requested that Liberty be added as a defendant, because Liberty was the current workers' compensation carrier for Greif.

The deputy commissioner found that Ms. Hensley's right CTS was a change in condition attributable to her 1992 condition, for which St. Paul was responsible. He found that her left CTS was a new injury, for which Liberty was responsible. Because the right condition predated the left, he ordered that, pursuant to Code § 65.2-506, the award against St. Paul be suspended and compensation be paid by Liberty until Ms. Hensley's left CTS was resolved. He also ordered Liberty to reimburse St. Paul for its payments of compensation to Ms. Hensley after June 10, 1994.

On review, the full commission affirmed the deputy commissioner's findings regarding the right and left CTS. The commission further found that Ms. Hensley's total disability was "due partially to her right hand condition and partially to the left. It cannot be determined which condition is predominately disabling." The commission awarded temporary total disability benefits to Ms. Hensley and ordered St. Paul and Liberty each to pay one-half. Liberty was also ordered to reimburse St. Paul for one-half of any compensation paid after May 19, 1994. St. Paul was ordered to pay for the cost of medical treatment for the right CTS and Liberty was ordered to pay the cost of medical treatment for the left CTS. This appeal followed.

I.

We first address the motion to dismiss. Rule 5A:11(b) states, in pertinent part:

No appeal from an order of the Commission shall be allowed unless, within 30 days after entry of the order appealed from ... counsel files with the clerk of the Virginia Workers' Compensation Commission a notice of appeal which shall state the names and addresses of all appellants and appellees and the names, addresses, and telephone numbers of counsel for each party....

On its notice of appeal, St. Paul failed to list Greif as an appellee. However, no party to this appeal was prejudiced by that omission. Greif and its counsel were listed as appellants. All necessary parties were before the commission and are presently before this Court. This case is distinguishable from Zion Church Designers & Builders v. McDonald, 18 Va.App. 580, 445 S.E.2d 704 (1994), in which a necessary party received no notice of the appeal and therefore was unable to protect its interests. In this case, all necessary parties have been present and have participated at all stages of the proceedings. The motion to dismiss is denied.

II.

St. Paul first contends that the evidence is insufficient to support the commission's finding that Ms. Hensley's right wrist symptoms resulted from a change in condition relating to her original 1992 CTS. St. Paul argues that the evidence proves, as a matter of law, that Ms. Hensley's right CTS is a new condition. It notes that Dr. Chappell checked, "yes," when asked whether the "problem" was new. However, Dr. Chappell also explained that "the problem" was new because Ms. Hensley had been symptom free for six months. The record supports the commission's conclusion.

"The Commission's findings of fact are conclusive and binding on this court if supported by credible evidence." Russell Loungewear v. Gray, 2 Va.App. 90, 92, 341 S.E.2d 824, 825 (1986). This rule applies when an expert's opinion contains internal conflict. See Chandler v. Schmidt Baking Co., 228 Va. 265, 321 S.E.2d 296 (1984). Dr. Chappell's opinion sufficiently supports the commission's finding that Ms. Hensley's right CTS was a change in condition. Dr. Chappell stated that "she has recurrent carpal tunnel syndrome stemming from her previous problem with this condition" and that her CTS was "a continuation of the problem that she had back in 1992." He explained that his answer, "yes," to the question whether Ms. Hensley's right CTS was a new problem, related to a reoccurrence of symptoms following a period of remission, not to the question of causation.

III.

Our holding that the record supports the commission's finding that Ms. Hensley's right CTS represented a change in the condition of her original 1992 CTS moots St. Paul's contention that the April 12, 1994 award should be set aside because of a mutual mistake of fact.

IV.

St. Paul and Ms. Hensley contend that the commission's equal division of liability for payment of benefits between St. Paul and Liberty violates Code § 65.2-506. Liberty contends that it should not be required to pay disability benefits for the left CTS because no evidence proves that the left CTS is itself disabling and because Ms. Hensley is receiving temporary total disability for her right CTS.

The commission found "that [Ms. Hensley's] current total disability, commencing June 10, 1994, is due partially to her right-hand condition and partially to...