Hardees of Norton No. 2849 v. Lena Marie Stephens ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Willis
HARDEES OF NORTON NO. 2849 AND
BODDIE-NOELL ENTERPRISES, INC.
MEMORANDUM OPINION*
v. Record No. 1109-02-3 PER CURIAM
SEPTEMBER 17, 2002
LENA MARIE STEPHENS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Monica Taylor Monday; Mary Beth Nash;
Gentry Locke Rakes & Moore, on brief), for
appellants.
(D. Allison Mullins; Lee & Phipps, P.C., on
brief), for appellee.
Hardees of Norton No. 2849 and Boddie-Noell Enterprises,
Inc. (employer) contend the Workers' Compensation Commission
erred in finding that Lena Marie Stephens (claimant) proved by
clear and convincing evidence that her right carpal tunnel
syndrome was causally related to her employment. 1 Upon reviewing
the record and the parties' briefs, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Claimant did not appeal the commission's finding that she
failed to prove that her left carpal tunnel syndrome was caused
by her employment. Accordingly, we will not address that issue
on appeal.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence proved that claimant began to work
for employer as a biscuit maker on October 23, 2000. She
hand-prepared seven batches of dough, which made about three
dozen rolls and biscuits per batch. She was required to pour
the dough into a large bowl and mix it by hand, then put it on a
table and roll it and cut it. She made dough for about one hour
and forty-five minutes to two hours during each six to
eight-hour shift. After three to four weeks of performing her
job, claimant began to have bilateral arm swelling and numbness.
Her left arm had bothered her before beginning work for
employer, but she had no problems with her right arm before her
employment.
Jimmy Stidham, employer's manager, confirmed that claimant
made dough for approximately one to two and one-half hours each
shift. She also operated a cash register, waited on customers,
cleaned the dining room, and stocked items. Within a few weeks
of starting work, claimant told Stidham that her doctor told her
to stop making biscuits because of something in her back. As a
result, he reassigned her to work as a full-time cashier.
On November 10, 2000, claimant complained to Dr. Neal A.
Jewell, an orthopedic surgeon, that she suffered from back pain,
lower extremity pain, and a "recent onset of swelling in her
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hands, numbness in her hands at night." She told Dr. Jewell
that she started working for employer on October 23, 2000 and
that she made biscuit dough. She told him how she kneaded and
cut the dough. Dr. Jewell diagnosed possible early carpal
tunnel syndrome. He recommended that claimant stop the
biscuit-making job duties because her symptoms seemed to improve
with rest. Dr. Jewell noted that the symptoms started "almost
immediately following the beginning of the work activities."
On December 4, 2000, claimant continued to complain to
Dr. Jewell of "carpal tunnel type of symptoms with intermittent
numbness in both hands, increased after work and increased at
night." Dr. Jewell diagnosed cervical spondylosis, bilateral
carpal tunnel syndrome, and chronic lumbar pain. He told
claimant to stop her job "since it is chronically aggravating
her carpal tunnel symptoms."
In a December 6, 2000 letter, Dr. Jewell opined that
claimant should stop her food preparation duties at work because
"[c]onstant kneading of the dough and other biscuit making
activities have, from the outset of her employment at Hardee's,
caused these carpal tunnel symptoms."
On January 4, 2001, claimant told Dr. Jewell she had not
been working for the past two weeks and that her symptoms, other
than right index finger numbness, seemed to be resolving. On
February 15, 2001, Dr. Jewell noted that claimant's "right
carpal tunnel symptoms are unchanged [with] . . . persistent
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numbness and pain in the median nerve distribution [and]
. . . diffuse hand pain and intermittent swelling in the hand."
Dr. Jewell diagnosed right carpal tunnel syndrome secondary to
claimant's work duties beginning on October 23, 2001 and
"longstanding" left carpal tunnel syndrome. Bilateral nerve
conduction studies done on February 20, 2001 revealed
"compression of the median nerves at the wrist as in carpal
tunnel syndrome."
On March 8, 2001, Dr. Jewell opined that claimant's "right
carpal tunnel symptoms are related to the job activities at
Hardee's." Dr. Jewell noted that the left carpal tunnel
symptoms were not related to the employment due to claimant's
pre-existing positive nerve conduction studies on the left.
Dr. Richard Blume, an occupational medicine specialist,
reviewed claimant's medical records for employer. On June 7,
2001, Dr. Blume opined that the medical findings failed to
document the presence of carpal tunnel syndrome in either upper
extremity. He concluded that claimant's complaints did not
support a diagnosis of carpal tunnel syndrome and that her work
history did not suggest a risk of carpal tunnel syndrome. He
emphasized that claimant's symptoms could indicate fibromyalgia
and noted that she was a twenty-year cigarette smoker.
Carpal tunnel syndrome, an ordinary disease of life under
Code § 65.2-401, is compensable, if a claimant proves
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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." . . . [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;
. . . [and] [i]t can be fairly traced to the
employment as the proximate cause . . . ."
* * * * * * *
The commission's determination
regarding causation is a finding of fact. A
finding of causation need not be based
exclusively on medical evidence. . . .
In determining whether credible
evidence exists to support the commission's
findings of fact, "the appellate court does
not retry the facts, reweigh . . . the
evidence, or make its own determination of
the credibility of the witnesses." Thus,
unless we can say as a matter of law that
claimant failed to sustain her burden of
proving causation, the commission's findings
are binding and conclusive upon us.
Lee County Sch. Bd. v. Miller, 38 Va. App. 253, 259-61, 563
S.E.2d 364, 377-78 (2002) (citations omitted).
Claimant's testimony and Dr. Jewell's medical records and
opinions constitute credible evidence to support the
commission's finding that claimant proved by clear and
convincing evidence that her right carpal tunnel syndrome was
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caused by her employment. Dr. Jewell, who was aware of
claimant's job duties and the fact that her symptoms began
shortly after she started working for employer, opined that her
job activities caused her right carpal tunnel symptoms and that
her right carpal tunnel symptoms were related to her job
activities. As fact finder, the commission was entitled to
accept Dr. Jewell's unequivocal opinion and to reject
Dr. Blume's contrary opinion. Dr. Blume reviewed medical
records at employer's request. However, unlike Dr. Jewell,
Dr. Blume never examined claimant nor did he treat her over an
extended period of time.
Furthermore, credible evidence supports the commission's
finding that claimant met her burden of proving her right carpal
tunnel syndrome did not result from causes outside her
employment. Claimant testified that she started having problems
with her right arm within several weeks after she began working
for employer. When she first saw Dr. Jewell, she described her
biscuit-making duties to him. Dr. Jewell's medical records and
opinions, coupled with claimant's testimony, provided clear and
convincing evidence that claimant's right carpal tunnel syndrome
resulted from the activities required by her job making biscuits
for employer rather than any other medical condition or her
twenty-year history of smoking cigarettes. As the commission
noted,
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Dr. Jewell repeatedly advised that the right
carpal tunnel syndrome was caused by
[claimant's] employment. While employer
referred to potential causes of the
claimant's carpal tunnel syndrome, such as
an existing neck condition or her smoking
habit, these possibilities do not mean that
there were causes outside of the employment.
The claimant also showed that the condition
was peculiar to her duties of making the
dough. She suffered symptoms soon after she
began these industrial activities and
Dr. Jewell documented these complaints. The
. . . Act does not require that the claimant
perform the work activity continuously for
an eight-hour shift or for several months to
be a compensable ordinary disease of life.
Based upon this record, we cannot find as a matter of law
that claimant's evidence failed to sustain her burden of proving
by clear and convincing evidence that her right carpal tunnel
syndrome was causally related to her employment and did not
result from causes outside of her employment. Accordingly, we
affirm the commission's decision.
Affirmed.
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