Lee County School Bd. v. Miller

• Decision Date: 14 May 2002
• Docket Number: Record No. 2610-01-3.
• Citation: 563 S.E.2d 374,38 Va. App. 253
• Parties: LEE COUNTY SCHOOL BOARD AND VIRGINIA MUNICIPAL GROUP SELF INSURANCE ASSOCIATION, v. Kitty Sue MILLER.
• Court: Virginia Court of Appeals

563 S.E.2d 374

38 Va. App. 253

LEE COUNTY SCHOOL BOARD AND VIRGINIA MUNICIPAL GROUP SELF INSURANCE ASSOCIATION, v. Kitty Sue MILLER.

Record No. 2610-01-3.

Court of Appeals of Virginia, Salem.

May 14, 2002.

Lisa Frisina Clement, Midlothian (Michael F. Blair, Bristol; PennStuart, on brief), for appellants.

D. Allison Mullins (Lee & Phipps, P.C., on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER and AGEE, JJ.

ELDER, Judge.

Lee County School Board and Virginia Municipal Group Self-Insurance Association (hereinafter collectively "employer") appeal from a decision of the Workers' Compensation Commission awarding benefits to employee Kitty Sue Miller (claimant) under the Workers' Compensation Act. On appeal, employer contends claimant failed to prove by clear and convincing evidence that her carpal tunnel syndrome (CTS) was a compensable disease under Code § 65.2-401 because the medical evidence failed to provide a sufficient causal link between claimant's CTS and her employment. We hold that the evidence as a whole, including claimant's testimony, supported the commission's finding of causation. Thus, we affirm the award.

I. BACKGROUND

Claimant began working for employer at Keokee Elementary school as a substitute employee in 1980 and became a regular employee in about 1990. Most of that time, claimant worked as a cook, but for about two years in the mid 1990s, she worked as a janitor. Claimant's janitorial work required her to shovel more than a ton of coal into the school's furnaces on a daily basis. She also "worked on the furnace, took ashes out," mowed grass, used a "weed eate[r]," and installed windows. In about 1996, she returned to working as a cook, and she worked as a cook throughout the remainder of her employment. Claimant described her work as a cook as follows: "[W]e cook hamburger meat which is 40 to 50 pounds in a case. We stock. We put all of our stock away. We put all of our produce away. We're constantly lifting pans, kettles, washing, mopping, we lift tables." She agreed her job involved "repetitive lifting, rotating, bending and use of [her] wrist."

About three years prior to the December 2000 hearing, claimant began to experience problems with her arms and wrists. She "thought it was just [the] lifting" causing her "wrists [to] get sore," and she "never thought [anything] about it" "because [she] enjoyed working." However, when her "hands kept getting worse" and began "going numb and drawing up on her," she decided to seek medical attention. At that time, she was engaged in no hobbies or any other activities outside of work.

On October 8, 1999, claimant saw Dr. Richard Norton with complaints of pain in her upper extremities. She reported the pain was in her shoulders, elbows and wrists and that it was worse in the mornings. After x-rays of claimant's hands revealed no arthritic changes, Dr. Norton referred claimant to Dr. Mohammed Bhatti, a neurologist. When Dr. Bhatti examined claimant on November 1, 1999, he detected a loss of grip strength in claimant's hands and noted the loss was greater in her dominant left hand. Dr. Bhatti suspected carpal tunnel syndrome (CTS). Nerve conduction studies performed on December 3, 1999, confirmed "bilateral median nerve compression in carpal tunnel, left more than right." Claimant's nerve conduction studies also indicated right ulnar nerve compression in the cubital canal. Dr. Bhatti noted claimant had subcutaneous knots on both arms, but he gave no indication of any connection between the nodules and claimant's CTS.

On referral from Dr. Bhatti, claimant then saw Dr. Hossein Faiz, a surgeon, regarding removal of the painful subcutaneous nodules on her elbows. On December 15, 1999, Dr. Faiz removed the nodules. He noted that the right nodule had attached and compressed the right ulnar nerve whereas the left nodule "was not close to any major nerve structures." Dr. Faiz directed that a copy of his operative note be sent to Dr. Bhatti.

Dr. Bhatti saw claimant again on December 22, 1999, after Dr. Faiz removed the nodules from claimant's elbows. Dr. Bhatti recommended that claimant undergo a bilateral CTS release for her "[b]ilateral moderate to severe median nerve compression." Claimant confirmed that Dr. Bhatti told her in December of 1999 that she had bilateral CTS which was worse on the left.

In early 2000, claimant saw Dr. Robert Evans, an osteopath, for continuing complaints of pain in her hands. He noted she had CTS and was waiting until school was out to have decompression surgery. In his February 26, 2000 office note, Dr. Evans noted "[m]ost of the problem comes during the day while she is working. . . . [S]he has to use the hands and wrists a big deal at work and it is mostly during this time and shortly afterwards that it bothers her." When Dr. Evans saw claimant again on April 24, 2000, for "worsening pain," he noted she was a cafeteria worker and said, "I know that the repetitive nature of the work that she does, and has for years, is being the deciding factor in these bilateral carpal tunnel syndromes."

Claimant subsequently returned to Dr. Faiz for the recommended CTS surgery. However, Dr. Faiz sent claimant back to Dr. Bhatti for repeat nerve conduction studies because the last studies had been performed during the previous year. The repeat nerve conduction studies revealed "normal ulnar nerve parameters bilaterally" but showed a mild worsening of claimant's left CTS. Dr. Bhatti examined claimant again on November 16, 2000, and noted no significant changes in her CTS.

Claimant testified that she told Dr. Bhatti about the "repetitive lifting, rotating, bending[,] use of [her] wrist" and "pulling" she engaged in at work and that, sometime in the year 2000, Dr. Bhatti told her that her CTS "was caused by the work, by the lifting and the tugging all day long seven hours a day," "[p]ulling all those years." Dr. Bhatti's office notes do not reflect this opinion or the communication of such an opinion to claimant. However, Dr. Bhatti opined in a November 22, 2000 letter to employer's counsel that "[claimant's] [CTS] is most probably secondary to [the] cumulative effect of several years duration involving repetitive lifting, rotating, bending, and use of wrists, regardless of weight, which may be caused by work done as is required by a cook." He also noted that "frequent breaks between [claimant's] cooking chores were observed [to] alleviate[] [her] symptoms." Finally, Dr. Bhatti indicated an awareness of the knots in claimant's arms but opined the knots "most probably have no direct bearing on [her][CTS] symptoms unless upon surgical exploration they are found to be in the carpal tunnel region."

The deputy commissioner expressed doubts about the sufficiency of the medical evidence, standing alone, to prove causation by clear and convincing evidence. However, he found that the record as a whole, including evidence of the repetitive nature of claimant's job and the absence of evidence of any non-work-related cause for claimant's CTS, permitted him to find clear and convincing evidence of causation.

With one commissioner dissenting, the commission affirmed, noting that the evidence need not prove "conclusive[ly]" that claimant's CTS resulted from her work. The majority relied on (1) evidence that claimant's job required "extensive" repetitive use of her hands and that claimant's treating physicians offered uncontradicted testimony linking her work with her CTS and (2) a lack of evidence to suggest that any non-workrelated activities could have caused claimant's condition.

II. ANALYSIS

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, a 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; Lanai:It can be fairly traced to the employment as the proximate cause ..." (Emphases added).

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, 161 Ohio St. 469, 120 N.E.2d 118, 123 (1954)).

The commission's determination regarding causation is a finding of fact. Marcus v. Arlington County Bd. of Supervisors, 15 Va.App. 544, 551, 425 S.E.2d 525, 530 (1993). A finding of causation need not be based exclusively on medical evidence. Dollar Gen'l Store v. Cridlin, 22 Va.App. 171, 176, 468 S.E.2d 152, 154 (1996). "The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive." Id.

"To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury [or

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