Bennett Mineral Co. v. Thomas Broache, Jr. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BENNETT MINERAL COMPANY
AND
ALEXSIS RISK MANAGEMENT SERVICES
MEMORANDUM OPINION *
v. Record No. 0615-95-2 PER CURIAM
AUGUST 8, 1995
THOMAS BROACHE, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Williams & Pierce, on brief), for
appellants. Appellants submitting on brief.
(B. Mayes Marks, Jr., on brief), for appellee.
Appellee submitting on brief.
Bennett Mineral Company ("employer") contends that the
Workers' Compensation Commission erred in (1) finding that Thomas
Broache, Jr.'s bilateral carpal tunnel syndrome qualifies as a
compensable occupational "disease" under Code § 65.2-400; and (2)
denying employer's request to take post-hearing de bene esse
depositions of Drs. Mark Rosenberg and Glenn J. Spiegler.
Finding no error, we affirm the commission's decision.
The facts are not in dispute. Broache worked for Bennett
Mineral Company ("employer") for twelve and one-half years as a
laborer and janitor. His job required repetitive use of his
hands filling and wrapping bags of kitty litter on an assembly
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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line. In late January 1994, he was required to fill forty to
fifty pallets of bags per day. Each pallet contained eighty-four
bags. While performing this job, he began to feel pain and
tingling in his hands and wrists and sought medical treatment.
Dr. Rosenberg diagnosed Broache as suffering from carpal
tunnel syndrome. On April 27, 1994, Broache underwent right
carpal tunnel release surgery by Dr. Spiegler. In response to a
written question from Broache's counsel as to whether claimant's
bilateral carpal tunnel syndrome was an occupational disease
arising out of and in the course of his employment, Drs.
Rosenberg and Spiegler answered in the affirmative. The record
contains no evidence suggesting that Broache had substantial
exposure to repetitive hand activities outside of his employment.
The commission found that Broache's carpal tunnel syndrome
was an occupational disease that arose out of and in the course
of his employment. The employer contends that the physicians'
responses to the written question, standing alone, were
insufficient medical evidence to support the commission's finding
that Broache's condition is a "disease."
In Merillat Industries, Inc. v. Parks, 246 Va. 429, 436
S.E.2d 600 (1993), the Supreme Court 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." 246 Va. at 432, 436 S.E.2d at 601. This
Court defined "disease" as
any deviation from or interruption of the normal
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structure or function of any part, organ, system (or
combination thereof) of the body that is manifested by
a characteristic set of symptoms and signs and whose
etiology, pathology, and prognosis may be known or
unknown.
Piedmont Mfg. Co. v. East, 17 Va. App. 499, 503, 438 S.E.2d 769,
772 (1993) (quoting Sloane-Dorland Ann. Medical-Legal Dictionary
209 (1987)). The commission also has used a similar definition.
See Fletcher v. TAD Technical Servs. Corp., VWC file 150-41-13
(March 12, 1992). "The word 'disease' has a well-established
meaning, and . . . no significant disparity exists among the
definitions of that term promulgated by various authorities."
Commonwealth, Dep't of State Police v. Haga, 18 Va. App. 162,
165, 442 S.E.2d 424, 426 (1994).
"Upon appellate review, the findings of fact made by the
. . . Commission will be upheld when supported by credible
evidence." Id. at 166, 442 S.E.2d at 426. Drs. Rosenberg and
Spiegler both agreed that Broache's carpal tunnel syndrome was an
occupational disease. Their diagnoses satisfy the definition of
disease enunciated in Piedmont. Thus, credible evidence supports
the commission's finding that Broache's condition was an
occupational disease.
At the hearing, the employer objected to the admissibility
of the responses of Drs. Rosenberg and Spiegler to the written
question. The employer also asked that it be permitted to take
the post-hearing depositions of these physicians. The record
shows that the employer received the physicians' responses to the
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written question at least two weeks before the hearing date.
Prior to the hearing, employer never asked to propound
interrogatories or take the physicians' depositions.
Accordingly, we hold that the record does not establish that the
commission abused its discretion in denying employer's request to
take post-hearing depositions and in admitting the physicians'
responses to the written questions.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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