Newport News Ship.and Dry Dock v. David L. Gatling ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2079-01-1 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 5, 2002
DAVID L. GATLING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jonathan H. Walker (Mason, Cowardin & Mason,
P.C., on brief), for appellant.
Robert J. Macbeth, Jr. (Rutter, Walsh,
Mills & Rutter, L.L.P., on brief), for
appellee.
Newport News Shipbuilding and Dry Dock Company appeals from
a Workers' Compensation Commission's award of benefits to David
L. Gatling. It contends the worker failed to prove by clear and
convincing evidence that his carpal tunnel syndrome was caused
by his employment rather than his hobbies. Finding no error, we
affirm.
We view the evidence in the light most favorable to the
employee, the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
worker was a welder at the shipyard for approximately ten years.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
He constantly used his hands and bent his wrists and hands in
unison when he used semi-automatic welding equipment. Due to
his small stature, the worker often received assignments that
required him to crawl into confined spaces and work with his
hands close to his body.
In February 1998, the worker began experiencing numbness
and aching in his wrists. On April 28, 1998, he reported to the
employer that he had "pain and numbness in both my hands which
started sometime in December of 1997. I have to weld and grind
a lot and I believe over the years this has caused my problem."
The employer's physician diagnosed him with bilateral carpal
tunnel syndrome (CTS).
Dr. Thomas M. Stiles treated the worker from July 1998 and
performed surgery on both wrists. Dr. Stiles opined:
Mr. Gatling's bilateral carpal tunnel
syndrome is a direct result of his work at
the Newport News Shipbuilding where he
worked as a welder. He was required to do
repeated grasping and gripping of the
welding equipment, crawling in to [sic]
tight places and being on his hands and
knees on numerous occasions.
Dr. David N. Thornberg, who worked for the employer,
conducted a records review. He noted the worker spent "one to
two hours per week building model airplanes and played base
guitar bi-weekly in a church band." Dr. Thornberg indicated
that those hobbies "could be a factor" in causing CTS, but he
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was unable "to differentiate the causative agent for [the
worker's] carpal tunnel syndrome."
The deputy commissioner concluded that the "claimant's
carpal tunnel syndrome was caused by [his] employment . . . and
. . . was not caused by factors existing outside of the
employment setting." The deputy commissioner accepted
Dr. Stiles's opinion and rejected Dr. Thornberg's opinion. The
full commission affirmed the deputy commissioner's findings of
fact. 1 It noted that Dr. Stiles unequivocally attributed the
worker's CTS to his employment as a welder. While Dr. Thornberg
disagreed, he did not examine the worker. Moreover, the
worker's occasional hobbies were insufficient to "overcome
Stiles's medical opinion." The commission concluded that the
worker's "evidence is both clear and convincing that his work
was the cause of his bilateral carpal tunnel syndrome."
The employer contends the worker failed to prove by clear
and convincing evidence that his CTS "did not result from causes
outside of the employment" as required by Code § 65.2-401. The
employer urges us to interpret Code § 65.2-401(1) in the same
manner the employer urged in Ross Labs. v. Barbour, 13 Va. App.
373, 378, 412 S.E.2d 205, 207 (1991). 2 Barbour declined to
1
Commissioner Tarr dissented.
2
The former Code contains the language "to a reasonable
medical certainty," Code § 65.1-46.1, which is now replaced with
"(not a mere probability)." Code § 65.2-401.
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interpret the statute in that manner and held the statute "does
not preclude recovery in every instance where some other factor,
other than those related to a claimant's work duties, may have
contributed in some degree to the claimant's condition." Id. at
376, 412 S.E.2d at 207. Thus, "the mere possibility that the
claimant's condition might have been influenced in some degree
by another, non-work-related activity is not enough to
undermine" the commission's determination that the worker's
condition was caused by the employment. Id. at 377, 412 S.E.2d
at 208.
As in Piedmont Mfg. Co. v. East, 17 Va. App. 499, 438
S.E.2d 769 (1993), the worker engaged in some non-employment
activities that could cause CTS. However, "no evidence . . .
suggest[ed] that this activity was a substantial or even partial
cause of . . . [his] present condition." Id. at 506, 438 S.E.2d
at 774. "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) (citation omitted). When
credible evidence supports the commission's findings of fact,
they are "conclusive and binding" on appeal. Id.
The commission did rely on credible evidence in finding
that the worker's employment caused his CTS: an unequivocal
determination by the worker's treating physician that his
employment caused his CTS. That opinion was supported by the
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worker's belief that his years of working as a welder caused his
condition. National Fruit Prod. Co. v. Staton, 28 Va. App. 650,
654, 507 S.E.2d 667, 669 (1998), aff'd, 259 Va. 271, 526 S.E.2d
266 (2000) (physician's opinion of a "high probability" that CTS
caused by employment coupled with claimant's testimony is
sufficient); Dollar General Store v. Cridlin, 22 Va. App. 171,
176, 468 S.E.2d 152, 154 (1996) (claimant's opinion may be
considered).
The commission was free to discredit Dr. Thornberg's
opinion because he did not examine the worker and did not
determine causation. Dr. Thornberg stated the worker's hobbies
"could have" caused his CTS, but such an opinion does not refute
the unequivocal causation opinion of the worker's treating
physician, Dr. Stiles. Pilot Freight Carriers, Inc. v. Reeves,
1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (an attending
physician's positive diagnosis will be given great weight).
"The commission's 'finding based upon conflicting expert medical
opinions is one of fact which cannot be disturbed.'" Town of
Purcellville Police v. Bromser-Kloeden, 35 Va. App. 252, 258,
544 S.E.2d 381, 384 (2001) (quoting Dep't of State Police v.
Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985)).
Accordingly, we conclude the commission did not err in
finding the worker proved by clear and convincing evidence that
his carpal tunnel syndrome was caused by his employment.
Affirmed.
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