Lois v. Rucker v. Bacova Guild, Ltd. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
LOIS V. RUCKER
v. Record No. 1449-95-3 MEMORANDUM OPINION *
PER CURIAM
BACOVA GUILD, LTD. NOVEMBER 21, 1995
AND
ASSOCIATED INDEMNITY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Leslie Ann Shaner; O'Keefe & Spies, on brief), for
appellant.
(Christopher M. Kite; Monica L. Taylor; Gentry, Locke,
Rakes & Moore, on brief), for appellees.
Lois V. Rucker ("claimant") contends that the Workers'
Compensation Commission erred in finding that she failed to prove
that the osteoarthritis of her right wrist and hand and her
right-sided carpal tunnel syndrome were causally related to her
employment. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. Virginia Dep't of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). "Whether a disease is causally related to the employment
and not causally related to other factors . . . is a finding of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365
S.E.2d 782, 788 (1988). Unless we can say as a matter of law
that claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
An occupational disease is one "arising out of and in the
course of employment." Code § 65.2-400(A). "A disease shall be
deemed to arise out of the employment" when the evidence
establishes six elements. Code § 65.2-400(B). Elements (2) and
(6) require evidence showing "[a] direct causal connection
between the conditions under which work is performed and the
occupational disease" and that the disease "had its origin in a
risk connected with the employment and flowed from that source as
a natural consequence. . . ." Code § 65.2-400(B)(1) and (B)(6).
The commission found that claimant failed to establish a
compensable occupational disease under the requirements of Code
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§ 65.2-400.
At best, Dr. Charles F. Andersen, claimant's treating
orthopedic surgeon, opined that her employment aggravated her
pre-existing osteoarthritis and carpal tunnel syndrome; he could
not state with any degree of reasonable medical certainty that
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Because there was no evidence that claimant's conditions
may have resulted from substantial exposure outside of her
employment, the commission properly analyzed her application
under Code § 65.2-400. See Wells v. Commonwealth, Dep't of
Transp., 15 Va. App. 561, 565, 425 S.E.2d 536, 538 (1993).
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her employment caused her conditions. A disease that is merely
aggravated by the employment does not establish causation and is
not an occupational disease. Ashland Oil Co. v. Bean, 225 Va. 1,
3-4, 300 S.E.2d 739, 740 (1983). In addition, Dr. Hugh J. Hagan,
III, who examined claimant at employer's request, could not
render an opinion to a reasonable degree of medical certainty
that claimant's conditions were caused by her work.
Based upon the absence of any medical opinion that
claimant's work caused her carpal tunnel syndrome or
osteoarthritis, claimant did not prove as a matter of law a
compensable occupational disease pursuant to the requirements of
Code § 65.2-400. Thus, the commission did not err in denying her
application based upon a finding that she did not prove that her
conditions were caused by her employment or that they had their
origins in a work connected risk.
Accordingly, we affirm the commission's decision. We need
not address the "disease" issue as our ruling on the causation
issue disposes of this appeal.
Affirmed.
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