Bennett Mineral Co. v. Christopher Fayette ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
BENNETT MINERAL COMPANY
and
ALEXSIS RISK MANAGEMENT SERVICES MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
v. Record No. 2517-94-2 OCTOBER 24, 1995
CHRISTOPHER FAYETTE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Roya Palmer; Williams & Pierce,
on brief), for appellants.
(B. Mayes Marks, Jr.; Marks & Lee, P.C., on brief), for
appellee.
Bennett Mineral Company and Alexsis Risk Management Services
(hereinafter collectively referred to as "employer") appeal a
decision of the Workers' Compensation Commission awarding
benefits to Christopher Fayette (claimant). The employer
contends that the commission erred in finding that the claimant's
bilateral carpal tunnel syndrome, epicondylitis, and overuse
syndrome qualified as "diseases" under the holding of Merillat
Indus., Inc. v. Parks, 246 Va. 429, 432, 436 S.E.2d 600, 601
(1993). The employer argues that, absent other medical evidence,
the response of Dr. Thomas R. Butterworth, Jr. to a written
question submitted to him by the claimant's attorney did not
sustain the claimant's burden of proving that his conditions
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
constituted "diseases."
The claimant worked for the employer as a line worker for
eleven months. He worked five days per week, packing bags of
kitty litter weighing sixteen to fifty pounds. His job involved
constant hand and arm movement. The claimant bagged
approximately 600 bags per hour.
In October or November 1993, the claimant began to
experience numbness in his hands and lightness in his elbows. On
January 5, 1994, he sought treatment at the Riverside
Tappahannock Hospital emergency room. Dr. James Dudley diagnosed
carpal tunnel syndrome and an early ganglion of the right thumb.
The claimant was placed on light duty for a few days and
then returned to his regular work. His symptoms reappeared,
causing him to seek treatment again on January 26, 1994 at the
hospital emergency room. Dr. Pamela Gwaltney diagnosed bilateral
carpal tunnel syndrome and excused the claimant from work for
three days. In early February 1994, the claimant was referred by
his family physician to Dr. Butterworth, an orthopedic surgeon.
On February 9, 1994, Dr. Butterworth diagnosed bilateral
carpal tunnel syndrome, epicondylitis, and overuse syndrome. He
suggested that the claimant undergo an EMG. The March 29, 1994
EMG was abnormal and confirmed Dr. Butterworth's bilateral carpal
tunnel syndrome diagnosis. Dr. Butterworth opined that the
claimant was disabled due to the diagnosed conditions, which were
directly related to his job.
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On June 27, 1994, Dr. Butterworth completed a questionnaire
submitted to him by the claimant's attorney. Dr. Butterworth
stated that he treated the claimant for "[o]veruse syndrome with
tennis elbow and carpal tunnel syndrome bilateral." Dr.
Butterworth answered "yes" to the following question:
In your opinion, with a reasonable degree of
medical certainty, did the diseases suffered
by your patient, namely bilateral carpal
tunnel syndrome, lateral epicondylitis
bilaterally, and bilateral overuse syndrome
arise out of and in the course of your
patient's employment with Bennett Mineral
Company as a pinch line operator?
The deputy commissioner denied the claimant's application,
finding that the claimant suffered from repetitive use conditions
that were not defined by the medical evidence as "diseases" as
required by Merillat. The full commission reversed, finding that
Dr. Butterworth's affirmative answer to the question posed by the
claimant's counsel was sufficient to sustain the claimant's
burden of proving that his conditions were "diseases" as required
by Merillat. We agree and affirm.
Upon review, the commission's findings of fact will be
upheld if they are supported by credible evidence. James v.
Capital Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488-89 (1989). We view the evidence in the light most
favorable to the party prevailing below. Bean v. Hungerford, 16
Va. App. 183, 186, 428 S.E.2d 762, 764 (1993). However, to be
upheld, the record must support the commission's holding.
First, we find that Dr. Butterworth's testimony was
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unrebutted. That it was given in answer to a leading question
does not, in itself, nullify its evidentiary value. Second, even
were we to find this testimony is insufficient to establish the
existence of "disease", this case is controlled by this Court's
holdings in Piedmont Mfg. Co. v. East, 17 Va. App. 499, 438
S.E.2d 769 (1993), and Perdue Farms, Inc. v. McCutchan, Va.
App. , S.E.2d (1995), respectively, defining disease
and holding carpal tunnel syndrome to be a compensable disease.
Both cases were decided subsequent to Merillat and we are bound
by these subsequent decisions.
Finding no error in the commission's finding that the
claimant's conditions constitute disease, and there being no
challenge to its finding that the diseases suffered by the
claimant arose out of and in the course of his employment, we
affirm the judgment of the Virginia Workers' Compensation
Commission.
Affirmed.
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