Shoppers Food Warehouse v. Deborah S. Cummins ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
SHOPPERS FOOD WAREHOUSE AND
ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS
v. Record No. 2175-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
DEBORAH SUE CUMMINS MAY 2, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph C. Veith, III (Kathryn A. K. Untiedt; Montedonico,
Hamilton & Altman, P.C., on brief), for appellants.
Michael W. Heaviside (Ashcraft & Gerel, on brief), for
appellee.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Shoppers Food Warehouse and Zurich American Insurance
Company of Illinois (collectively referred to as employer) appeal
the commission's decision awarding benefits to Deborah Sue
Cummins (claimant). Employer argues that the commission erred in
concluding that claimant's carpal tunnel syndrome was a disease
based on her doctor's testimony that carpal tunnel syndrome is an
ordinary disease of life. 1 We reverse and remand for the
commission to consider the medical record in light of this
Court's decision in Piedmont Mfg. Co. v. East, 17 Va. App. 499,
438 S.E.2d 769 (1993).
Claimant was a grocery checker for employer for four years.
Her job involved twisting, bending, and flexing of her wrists as
she scanned groceries. In March 1993, claimant experienced some
numbness and tingling in her hands. On April 2, 1993, claimant
sought medical treatment from Dr. Aysegul Soyer, who noted that
claimant had "positive Tinel's sign across both wrists" and
diagnosed her condition as bilateral carpal tunnel syndrome.
Claimant was referred to Dr. G. A. Nejad for surgery. Dr.
Nejad performed release surgeries on claimant's hands on July 14
and October 20, 1993. In an October 14, 1993 deposition, Dr.
Nejad agreed that carpal tunnel syndrome is an ordinary disease
of life but failed to identify carpal tunnel syndrome as a
disease. The commission found that claimant's carpal tunnel
1
Employer raised two other issues on appeal. We do not
address those issues because we reverse and remand for the
determination of disease issue.
2
syndrome was a disease based on Dr. Nejad's deposition statement.
In Merillat Indus., Inc. v. Parks, 246 Va. 429, 436 S.E.2d
600 (1993), the Supreme Court of Virginia held that the Workers'
Compensation Act "requires that the condition for which
compensation is sought as an occupational disease must first
qualify as a disease." Id. at 432, 436 S.E.2d at 601. "[T]he
record must support a finding . . . [of] disease." Id. at 433,
436 S.E.2d at 602.
In this case, Dr. Nejad's affirmative response to whether
carpal tunnel syndrome is an ordinary disease of life is the only
evidence in the record that claimant's condition is a disease.
The commission did not specifically find that either Dr. Nejad or
Dr. Soyer made the threshold determination of disease required by
Merillat. In making its disease determination, the commission
relied on Dr. Nejad's statement and failed to consider whether
the record supported a finding of disease under the definition of
disease set forth in Piedmont. 17 Va. App. at 503, 438 S.E.2d at
772. See also Commonwealth, Dep't of State Police v. Haga, 18
Va. App. 162, 166-67, 442 S.E.2d 424, 426 (1994) (examining the
medical record in light of the definition of disease approved in
Piedmont).
Thus, we remand this case for the commission to make a
factual determination whether claimant's carpal tunnel syndrome
is a disease in light of the definition in Piedmont. See
Virginia Supermarkets v. George, 18 Va. App. 452, 453, 445 S.E.2d
3156, 157 (1994) (remanding to the commission to make a factual
finding whether George's carpal tunnel syndrome was a disease).
We direct the commission to allow the parties to present
additional evidence concerning whether claimant's carpal tunnel
syndrome is a disease under the Piedmont definition.
Accordingly, the decision of the commission is reversed and
remanded.
Reversed and remanded.
4