Food Lion, Inc. v. Kenneth J. Gardner ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, * Elder and Fitzpatrick
Argued at Salem, Virginia
FOOD LION, INC.
v. Record No. 1957-94-3 MEMORANDUM OPINION** BY
JUDGE JOHANNA L. FITZPATRICK
KENNETH J. GARDNER SEPTEMBER 12, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William F. Karn (Richard A. Hobson; Williams & Pierce, on
brief), for appellant.
A. Thomas Lane, Jr., for appellee.
The Workers' Compensation Commission awarded Kenneth J.
Gardner (claimant) benefits based upon a determination that he
had an occupational disease, carpal tunnel syndrome. The sole
issue on appeal is whether claimant's condition is a compensable
occupational disease or a noncompensable cumulative trauma injury
resulting from repetitive motion. Finding no error, we affirm
the commission.
The facts in this case are not in dispute. On April 2,
1990, claimant began working for employer as a stocker. His job
duties included stocking the store's shelves with merchandise.
In August 1993, claimant experienced some numbness and pain in
his hands.
On November 4, 1993, claimant sought treatment from Dr. Ken
*
Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
**
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
L. Moles, who noted that claimant's "Tinel's and Phalan's sign[s]
are positive" and told claimant that his condition was bilateral
carpal tunnel syndrome caused by his employment. Dr. Moles
referred claimant to Dr. Jean M. Marine, who performed release
surgeries on claimant's hands in December 1993. In an April 4,
1994 letter, Dr. Moles stated that "[c]arpal tunnel syndrome is
considered to be an industrial illness. It can be brought about
by a repetitive motion and strain across the wrist joint." Dr.
Marine in an April 6, 1994 letter also noted that "[c]arpal
tunnel syndrome can be related to occupations requiring
repet[i]tive heavy lifting or repet[i]tive stressful maneuvers to
the hands/wrists."
The full commission found that claimant's carpal tunnel
syndrome was an occupational disease and not a cumulative trauma
injury resulting from repetitive motion: "Dr. Moles wrote in a
letter of April 4, 199[4], that carpal tunnel syndrome is an
'industrial illness.' We find that the term 'illness' is
synonymous with the word 'disease.' Therefore, the claimant has
sustained a disease."
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. In
Merillat, the claimant suffered a rotator cuff tear, and "all the
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testifying physicians except one described the rotator cuff tear
as an injury," not as a disease. Id. at 433, 436 S.E.2d at 602.
"Upon appellate review, the findings of fact made by the
Workers' Compensation Commission will be upheld when supported by
credible evidence." Commonwealth, Dep't of State Police v. Haga,
18 Va. App. 162, 166, 442 S.E.2d 424, 426 (1994). In the instant
case, sufficient credible evidence supports the commission's
finding that claimant's condition was a compensable occupational
disease. Dr. Moles described claimant's carpal tunnel syndrome
as an "industrial illness," and neither Dr. Moles nor Dr. Marine
characterized his condition as an injury. Merillat does not
preclude compensation for an illness or disease resulting from
repetitive motion in employment, but merely disallows
compensation when the repetitive motion or cumulative trauma
results in an injury. Thus, the mere fact that claimant's
condition resulted from repetitive motion in his employment is
not dispositive. Indeed, claimant's situation is similar to that
in Piedmont Mfg. Co. v. East, 17 Va. App. 499, 438 S.E.2d 769
(1993), in which this Court approved the award of benefits to a
claimant who suffered from de Quervain's disease.
Accordingly, the commission's decision is affirmed.
Affirmed.
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Koontz, J., dissenting.
For the reasons more fully stated in my dissent in Perdue
Farms, Inc. v. McCutchan, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (1995) (Koontz, J., dissenting), I respectfully dissent.
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