Holly Farms Foods, Inc. v. Carter

• Decision Date: 01 September 1992
• Docket Number: No. 1947-91-4,1947-91-4
• Parties: HOLLY FARMS FOODS, INC., et al. v. Mamie W. CARTER. Record
• Court: Virginia Court of Appeals

Page 165

422 S.E.2d 165

15 Va.App. 29

HOLLY FARMS FOODS, INC., et al. v. Mamie W. CARTER.

Record No. 1947-91-4.

Court of Appeals of Virginia.

Sept. 1, 1992.

S. Vernon Priddy, III, Richmond (Sands, Anderson, Marks & Miller, on brief), for appellants.

Kenneth D. Bynum, Falls Church (Koonz, McKenney, Johnson & DePaolis, P.C., on brief), for appellee.

Present: ELDER, MOON and WILLIS, JJ.

ELDER, Judge.

Holly Farms Foods, Inc. and National Union Fire Insurance Company of Pittsburgh, appellants, appeal from a decision of the Workers' Compensation Commission upholding an award of benefits to Mamie W. Carter, claimant. On appeal, appellants assert (1) that claimant failed to prove by clear and convincing evidence that the disease for which she sought benefits constituted an occupational disease under Code § § 65.1-46 and 65.1-46.1 (now Code §§ 65.2-400 and 65.2-401); (2) that the commission erred in its December 26, 1990, opinion in remanding the matter for the further taking of evidence on the periods of disability as the claimant bears the burden of proving such periods of disability; (3) that the commission erred in its October 22, 1991, opinion when it refused to consider appellants' assignment of error concerning the correctness of the commission's December 26, 1990, opinion on the ground that such decision had been a final and appealable decision; and (4) that the commission erred in finding that claimant met her obligation to market her residual capacity while only partially disabled. In addition, claimant asserts that this Court is without jurisdiction to review the commission's December 26, 1990, decision, as appellants did not timely appeal from that decision. For the reasons that follow, we affirm the commission's decision.

Claimant worked for Holly Farms as a bagger of whole chickens, often bagging as many as 1300 chickens in an hour. On October 10, 1989, claimant first saw Dr. Gordon Rawles concerning a one-month history of aching in her right hand as well as numbness and tingling extending into her right index finger. Dr. Rawles injected claimant's right carpal tunnel with cortisone and recommended light duty work for two days for "job related carpal tunnel."

Claimant began to experience pain again on October 20, 1989, and two days later visited an emergency room for relief from pain and swelling in both arms. Dr. Rawles diagnosed claimant's injury as "bilateral flexor tendinitis/median nerve entrapment" and renewed his order that claimant perform only light duty work. Two days later, Dr. Rawles stated that claimant was suffering from "an acute myofascial syndrome with no clear focus of the severity." Between October 23, 1989, and November 13, 1989, because Holly Farms had no available light duty work consistent with claimant's restrictions, she unsuccessfully sought work with a number of outside employers. She returned to work at Holly Farms November 14, 1989, but continued to experience bilateral hand and wrist pain. A Holly Farms form dated December 23, 1989, and signed by a Dr. Seitz, indicated that claimant suffered from carpal tunnel syndrome and, though she would require further medical attention, could return to work with limited use of her hand. However, claimant was again told by Holly Farms that no light duty work consistent with her restrictions was available to her. After eight days, during which claimant remained on light duty status, Dr. Rawles returned her to full duty.

In a December 26, 1990, opinion, the commission reversed a deputy commissioner's decision denying claimant benefits and remanded the case for a determination of compensable periods of disability. In so holding, the commission noted that

[o]n May 15, 1990, Dr. Rawles, in a handwritten diagnosis, indicated that Carter had flexor tendinitis and Reynaud's syndrome. He added that the two are not related. He recommended permanent limitation with "no repetitive lifting over five pounds at a time, no cutting, no bagging, no handling." He also prescribed medication for the Reynaud's syndrome.

Stephen R. Koller, M.D., specialist in rheumatology to whom Carter was referred by Dr. Rawles, wrote to Dr. Rawles on May 25, 1990:

I am concerned about the presence of an early systemic rheumatologic syndrome because of her Reynaud's phenomenon and the fact that her wrists were somewhat tender to palpation. However, her tests were normal and an MRI did not show any major abnormality.

I suppose we are left with a work related overuse syndrome but only time will tell otherwise. I have not given her another appointment here but am referring her back to you.

From the somewhat conflicting medical reports in this case, we find that Carter contracted a work-related occupational disease, flexor tendinitis, in her right arm and wrist, diagnosis of which was communicated to her on October 22, 1989.

We read the various statements of Dr. Rawles concerning Reynaud's phenomenon as statements that this condition is separate from the flexor tendinitis and median nerve entrapment diagnosed and that it is not related to the overuse stresses encountered by Carter in her work at Holly Farms. We find that the evidence in this record, including the testimony of the witnesses and the medical evidence, clearly establishes by convincing evidence with reasonable medical certainty that the right flexor tendinitis and median nerve entrapment constitute a compensable occupational disease under Code §§ 65.1-46 and 65.1-46.1 of the Act.

As the commission's December 26, 1990, opinion made clear, the commission was unable "to determine from the evidence in this record which periods of disability are claimed and which periods have been compensated by the employer." For this reason alone, the case was remanded to the deputy commissioner "for the purpose of obtaining pertinent disability information and entry of an appropriate award for disability and medical benefits."

Pursuant to an April 1, 1991, hearing, the deputy commissioner found that claimant was entitled to benefits for the periods of October 23, 1989, through November 13, 1989, and December 28, 1989, through January 4, 1990. The commission affirmed on October 22, 1991, and in so doing refused to consider arguments by appellants concerning the issue of compensability of the occupational disease arising out of its December 26, 1990, opinion. According to the commission, "that Opinion was not appealed and became final on January 26, 1991."

I.

The threshold issue before us is whether the commission's opinion of December 26, 1990, was a final, appealable decision under Virginia law. If it was, appellants may not assert error with respect to any issues finally decided in it.

Code § 65.1-98 (now Code § 65.2-706) provides that, with respect to decisions of the Industrial Commission, "[n]o appeal shall be taken from the decision of one commissioner until a review of the case has been had before the full Commission ... and an award entered by it. Appeals shall lie from such award to the Court of Appeals." In Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 329 S.E.2d 48 (1985), the Supreme Court wrote that the words " 'such award,' as used in Code § 65.1-98, mean final award, that is, a decision of the Industrial Commission granting or denying, or changing or refusing to change some benefit payable or allowable under the Workers' Compensation Act and leaving nothing to be done except to superintend ministerially the execution of the award." Id. at 269, 329 S.E.2d at 50 (emphasis added).

The commission's December 26, 1990, determinations do not meet the definition of "final award" set out in Jewell Ridge. In its December 26, 1990, opinion, the commission expressly noted that, even though it found a compensable occupational disease, it was unable to "enter an award" due to a lack of evidence identifying periods of disability. Instead, as the commission noted, "[t]his decision is not final until the entry of the award of the Deputy Commissioner establishing periods of compensable disability." Especially in light of the commission's express recognition that its decision would not become final until the final determination of the periods of disability, we will not conclude that the deputy commissioner's duties on remand were merely "ministerial."

Therefore, in its opinion of October 22, 1991, the commission erred when it held that, because its decision of December 26, 1990, was not appealed, that decision became final on January 26, 1991. The commission's December 26, 1990, opinion did not take final effect until the deputy commissioner identified the periods of disability and entered an award to claimant. The employer appealed that determination, and the commission affirmed the award. In affirming the deputy commissioner's findings concerning the periods of disability, the commission was not, however, required to reconsider the issue of whether claimant had suffered a compensable occupational disease. The full commission does not review its own determinations. We hold that the determination of the commission in its December 26, 1990, opinion was not reviewable by this Court until it became final, an event that occurred on October 22, 1991, when a final award was entered on claimant's behalf.

II.

Appellants first assert that claimant failed to prove by clear and convincing evidence that the disease for which she sought benefits constituted an occupational disease under Code §§ 65.1-46 and 65.1-46.1 (now Code §§ 65.2-400 and 65.2-401).

A.

Claims for compensation of a disease arising after 1986, when the General Assembly reviewed and then significantly revised the statutory definitions of both an occupational disease and an ordinary disease of life, will be governed by those new definitions, as well as the legislative intent that spawned them. In order to understand what the legislature intended, it is necessary to begin with consideration of Western Elec. Co. v. Gilliam, 229 Va. 245, 329 S.E.2d 13 (...