Piedmont Mfg. Co. v. East

• Decision Date: 21 December 1993
• Docket Number: No. 2605-92-3,2605-92-3
• Court: Virginia Court of Appeals
• Parties: PIEDMONT MANUFACTURING COMPANY and Hartford Insurance Company, v. Lois P. EAST; Courtland Manufacturing Company; Aetna Casualty & Surety Company; Amelia Dress Company, Inc.; and American & Foreign Insurance Company. Record

Page 769

438 S.E.2d 769

17 Va.App. 499

PIEDMONT MANUFACTURING COMPANY and Hartford Insurance Company, v. Lois P. EAST; Courtland Manufacturing Company; Aetna Casualty & Surety Company; Amelia Dress Company, Inc.; and American & Foreign Insurance Company.

Record No. 2605-92-3.

Court of Appeals of Virginia.

Dec. 21, 1993.

Marianne N. Macon, Richmond (Sands, Anderson, Marks & Miller, on brief), for appellants.

P. Scott De Bruin, Lynchburg (Joseph R. Johnson, Jr. & Associates, on brief), for appellee Lois P. East.

Martha White Medley, Danville (James A. L. Daniel; Daniel, Vaughn, Medley & Smitherman, on brief), for appellees Courtland Mfg. Co. and Aetna Cas. & Sur. Co.

John M. Oakey, Jr., Richmond (McGuire, Woods, Battle & Boothe, on brief), for appellees Amelia Dress Co., Inc. and American & Foreign Ins. Co.

Present: KOONTZ, ELDER and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Piedmont Manufacturing Company and Hartford Insurance Company (employer) contend that the commission erred in finding that: (1) Lois P. East's (claimant's) condition and consequent disability is a compensable ordinary disease of life; (2) claimant received a communication of an occupational disease; (3) claimant's last injurious exposure was with this employer; (4) claimant's condition was totally disabling; and (5) a deposition of claimant taken in a prior claim was properly excluded. Finding no error, we affirm the commission's award of benefits.

Claimant suffers from de Quervain's disease, which manifests itself by severe pain in her left hand. Claimant worked for employer, a maker of tire valves, for twenty-four years. Her job as a "production machine operator" involved the repetitive use of her left hand to inspect and handle small components. Claimant sought benefits for an occupational disease, specifically, de Quervain's tenosynovitis. She worked for employer from December 5, 1966 until November 9, 1990, when she resigned because she was moving from the area. At the time of her resignation, she did not report to employer that she was experiencing pain in her hand.

After claimant resigned from her job with employer, she had two relatively short-term jobs as a sewing machine operator. First, she worked for Amelia Dress Company from November 12, 1990 until February 28, 1991. Thereafter, she worked for Courtland Manufacturing Company d/b/a "Brandy Ann" from April 15, 1991 until May 23, 1991. These jobs also required repetitive wrist movements. Prior to claimant's employment with Brandy Ann, her symptoms of severe hand and wrist pain increased in early April 1991, prompting her to seek treatment from Dr. Haney on May 6, 1991.

Throughout claimant's employment with Piedmont she experienced wrist pain and underwent three operations for carpal tunnel syndrome. After claimant's last carpal tunnel release in May 1979, she was released to return to work. The commission found that claimant continued to have pain in her left hand. She again sought treatment for the condition on June 8, 1989, with Dr. von Oesen and, at that time, had a "positive Finklestein test," which is indicative of de Quervain's disease.

On May 6, 1991, claimant sought treatment with Dr. Haney, another orthopedist. In an addendum to the May 6, 1991, office visit, Dr. Haney diagnosed claimant as having "DeQuervain's [tenosynovitis] of the left hand and wrist." Dr. Haney described this condition as "secondary to overuse syndrome or repetitive trauma syndrome, [and specifically attributed it to claimant's] previous employment [with Piedmont] where she had to use her hand repetitively over a long period of time." According to Dr. Haney, claimant's condition was so pronounced that she could "no longer perform the type of work she [had] been doing in the past" and was "disabled On June 24, 1991, Dr. von Oesen confirmed that claimant had "de Quervain's disease" affecting her left hand. Dr. von Oesen referred claimant to Dr. Dunstan as a possible surgical candidate. Dr. Dunstan, however, did not agree with the diagnosis of de Quervain's, and attributed claimant's symptoms to degenerative arthritis. Dr. Dunstan could not ascribe that condition solely to the claimant's exposure at "the work place."

from any work" requiring "repetitive motion of her hand."

The commission, in affirming the award of the deputy commissioner, found that claimant suffered from de Quervain's tenosynovitis, a disease. The commission considered claimant's condition an ordinary disease of life pursuant to Code § 65.2-401, and found that claimant's evidence was sufficient to meet the requirements of Code §§ 65.2-400 and 65.2-401.

The commission found that claimant suffered her last injurious exposure to the causative hazards of the disease while working at Piedmont. This finding was based on the additional finding that claimant's symptoms predated her employment with Amelia or Brandy Ann and that claimant's treating physician specifically identified claimant's work at Piedmont as the cause of her condition. The commission also found that claimant was totally disabled because no medical evidence indicated that the claimant had any remaining capacity to work. Lastly, claimant's deposition was excluded by the commission because "two of the parties to the current claim, i.e., Amelia and Brandy Ann, were not parties to the earlier proceeding and, therefore, had no notice of the deposition."

CLAIMANT'S CONDITION IS A "DISEASE"

As a threshold matter, employer argues that de Quervain's tenosynovitis is not a disease, but, rather, a repetitive trauma injury. As our Supreme Court recently explained in Merillat Industries, Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600 (1993), the Act "requires that the condition for which compensation is sought as an occupational disease must first qualify as a disease." Id. at 601. A disease is defined as:

any deviation from or interruption of the normal structure or function of any part, organ, or system (or combination thereof) of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.

Sloane-Dorland Ann. Medical-Legal Dictionary 209 (1987).

Claimant's specific condition, de Quervain's disease, is defined as:

[P]ainful tenosynovitis due to relative narrowness of the common tendon sheath of the abductor pollicis longus and the extensor pollicis brevis.

Sloane-Dorland Ann. Medical-Legal Dictionary 212 (1987).

The medical evidence proves that on June 8, 1989, claimant was seen by Dr. von Oesen for "a swollen and painful left hand ... [with] a significant area of tenderness." At that time, claimant had "a positive Finklestein test, normal neurologic otherwise." (emphasis added). The evidence is uncontroverted that a positive Finklestein test is indicative of de Quervain's disease. On June 24, 1991, Dr. von Oesen completed an "Attending Physician Report," wherein he diagnosed claimant's condition as "de Quervain's disease." On October 18, 1991, Dr. Haney, claimant's primary treating physician, opined that claimant's condition "is degenerative joint disease of the carpometacarpal joint."

We conclude from the medical evidence in the record that credible evidence supports the commission's finding "that the claimant's evidence establishes that she suffers from DeQuervain's tenosynovitis, a disease." This case is distinguishable from Merillat, a case involving a rotator cuff tear, because in that case there was no determination that the tear to claimant's rotator cuff was a disease. In addition, the Supreme Court noted that "all the testifying physicians except one described the rotator cuff tear as an injury.... [and] [b]ased on this record, the rotator cuff tear suffered by Parks must be classified as an injury, not a

disease." Merillat, 246 Va. at ----, 436 S.E.2d at 602 (footnote omitted).

COMPENSABLE ORDINARY DISEASE OF LIFE

The commission noted that some medical evidence in the record indicated that de Quervain's disease could be caused by any repetitive hand or wrist motion. Accordingly, the commission considered claimant's condition an ordinary disease of life within the meaning of Code § 65.2-401. ¹ As such, claimant had the burden of producing clear and convincing evidence that her ordinary disease of life was employment related. Code § 65.2-401 provides that an ordinary disease of life, which is a disease that the general public is exposed to outside of employment:

may be treated as an occupational disease ... if it is established by clear and convincing evidence, to a reasonable medical certainty, that it arose out of and in the course of employment as provided in § 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment, and that:

....

3. It is characteristic of the employment and was caused by conditions peculiar to such employment.

Under familiar principles, on appellate review, the court will construe the evidence in the light most favorable to the prevailing party below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). Further, " '[w]hether a disease is causally related to the employment and not causally related to other factors is ... a finding of fact.' When there is credible evidence to support it, such a finding of fact is 'conclusive and binding' on this Court." Ross Laboratories v. Barbour, 13 Va.App. 373, 377-78, 412 S.E.2d 205, 208 (1991) (quoting Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 12, 365 S.E.2d 782, 788 (1988)).

In the case at bar, Dr. Haney, claimant's treating physician, opined as follows:

After review of [claimant's] work history it is my opinion to within a reasonable degree of medical probability that this diagnosis [tendinitis of the left hand] originates with her 24 year employment at Piedmont Manufacturing where she worked as a machinist sustaining repetitive trauma syndrome of the left hand and wrist.

It has been documented in numerous...