Grief Cos etc v. Barbara J Hensley etc

A Rehearing En Banc was granted in this case on July 31, 1996.
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
THE GREIF COMPANIES/GENESCO, INC. and
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY
OPINION BY
v. Record No. 0991-95-3 JUDGE JERE M. H. WILLIS, JR.
JUNE 18, 1996
BARBARA JEAN HENSLEY,
THE GREIF COMPANIES/GENESCO, INC. and
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph C. Veith, III (Montedonico, Hamilton &
Altman, P.C., on briefs), for appellants.
A. Thomas Lane, Jr., for appellee Barbara
Jean Hensley.
J. David Griffin (Fowler, Griffin, Coyne &
Coyne, P.C., on brief), for appellees The
Greif Companies/Genesco, Inc. and Liberty
Mutual Fire Insurance Company.
Greif Companies and St. Paul Fire and Marine Insurance
Company (St. Paul) appeal the decision of the Virginia Workers'
Compensation Commission awarding benefits to Barbara J. Hensley.
St. Paul contends that the commission erred (1) in failing to
find that Ms. Hensley's right carpal tunnel syndrome (CTS) was a
new injury, (2) in refusing to set aside the April 12, 1994 award
on the ground of mutual mistake, and (3) in holding St. Paul and
Liberty Mutual Fire Insurance Company (Liberty) jointly
responsible for the disability benefits awarded Ms. Hensley.
Liberty contends that St. Paul's appeal should be dismissed
because St. Paul failed in its notice of appeal to name Greif
Companies as an appellee and to provide the information required
by Rule 5A:11(b).
In August, 1992, Ms. Hensley was diagnosed as suffering from
carpal tunnel syndrome (CTS) of the right wrist. At that time,
she had been employed by Greif for twenty-six years. For the
preceding eleven years, she had performed piece work as a sewing
machine operator, sewing armholes into coats. This activity
required use of both hands. St. Paul was Greif's workers'
compensation carrier at that time. St. Paul accepted Ms.
Hensley's claim as compensable and paid her temporary total
disability compensation from August 31, 1992 through January 3,
1993, pursuant to an agreement of the parties and an award of the
commission.
In October, 1992, Dr. G. Edward Chappell, Jr. performed a
carpal tunnel release and an anterior wrist synovectomy on Ms.
Hensley's right wrist. In January, 1993, she returned to work at
Greif. On June 23, 1993, she was awarded compensation for a five
percent permanent partial disability.
On March 11, 1994, Ms. Hensley returned to Dr. Chappell,
complaining of pain and numbness in her right wrist. Dr.
Chappell reported, "I believe that she has recurrent carpal
tunnel syndrome stemming from her previous problem with this
condition." He restricted her to performing no piece work. Ms.
Hensley has not worked since March 14, 1994.
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Ms. Hensley notified St. Paul's representative, Ms. Decker,
of her recurrent CTS and of her unemployment. St. Paul agreed to
reinstate Ms. Hensley's compensation for temporary total
disability. On April 12, 1994, the commission entered an award
memorializing that agreement.
On April 25, 1994, Ms. Hensley reported to Dr. Chappell that
she suffered pain and numbness in her left wrist. Nerve
conduction studies revealed bilateral CTS. At that time, Liberty
had assumed Greif's workers' compensation coverage.
When Ms. Decker learned of the left CTS, she questioned
whether the current right CTS was a new injury or a change in
condition. She contacted Susan Wolf, a rehabilitation nurse
consultant, who sent a questionnaire to Dr. Chappell, asking him,
Do you feel this is a new problem for Mrs.
Hensley given the fact that she performed her
regular job for 14 months without problems
and now has a positive EMG bilaterally?
Dr. Chappell checked, "yes." St. Paul then filed an application
for hearing, seeking to have the April 12, 1994 award set aside
and a determination made as to whether the current right CTS was
a new condition or a recurrence of the 1992 condition.
Dr. Chappell was asked to clarify his answer on the
questionnaire. In response, he stated:
I checked yes because she did not have
problems for several months. This is a
somewhat problematic situation, and it
depends on how you define "new." I believe
that there was some permanency as a
consequence of her having carpal tunnel
syndrome in 1992 and requiring surgery, and I
am on record as recognizing a 5 percent
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permanent partial physical impairment for her
right hand. . . . I believe that this
condition would tend to leave her hand more
vulnerable to continued piece work, and in
that way it can be recognized as a
continuation of the problem that she had back
in 1992.
Although . . . the fact that she was
symptom-free for at least 6 months and then
started having problems again indicates that
this was a "new problem."
On June 21, 1994, Ms. Hensley applied for a hearing,
alleging bilateral CTS. She contended that Liberty was
responsible for the CTS in both wrists or, alternatively, that
both wrist conditions resulted from her 1992 condition, for which
St. Paul was responsible. St. Paul amended its application for
hearing, alleging that the April 12, 1994 award should be set
aside because of a mutual mistake of fact. St. Paul also
requested that Liberty be added as a defendant, because Liberty
was the current workers' compensation carrier for Greif.
The deputy commissioner found that Ms. Hensley's right CTS
was a change in condition attributable to her 1992 condition, for
which St. Paul was responsible. He found that her left CTS was a
new injury, for which Liberty was responsible. Because the right
condition predated the left, he ordered that, pursuant to Code
§ 65.2-506, the award against St. Paul be suspended and
compensation be paid by Liberty until Ms. Hensley's left CTS was
resolved. He also ordered Liberty to reimburse St. Paul for its
payments of compensation to Ms. Hensley after June 10, 1994.
On review, the full commission affirmed the deputy
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commissioner's findings regarding the right and left CTS. The
commission further found that Ms. Hensley's total disability was
"due partially to her right hand condition and partially to the
left. It cannot be determined which condition is predominately
disabling." The commission awarded temporary total disability
benefits to Ms. Hensley and ordered St. Paul and Liberty each to
pay one-half. Liberty was also ordered to reimburse St. Paul for
one-half of any compensation paid after May 19, 1994. St. Paul
was ordered to pay for the cost of medical treatment for the
right CTS and Liberty was ordered to pay the cost of medical
treatment for the left CTS. This appeal followed.
I.
We first address the motion to dismiss. Rule 5A:11(b)
states, in pertinent part:
No appeal from an order of the Commission
shall be allowed unless, within 30 days after
entry of the order appealed from . . .
counsel files with the clerk of the Virginia
Workers' Compensation Commission a notice of
appeal which shall state the names and
addresses of all appellants and appellees and
the names, addresses, and telephone numbers
of counsel for each party . . . .
On its notice of appeal, St. Paul failed to list Greif as an
appellee. However, no party to this appeal was prejudiced by
that omission. Greif and its counsel were listed as appellants.
All necessary parties were before the commission and are
presently before this Court. This case is distinguishable from
Zion Church Designers & Builders v. McDonald, 18 Va. App. 580,
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445 S.E.2d 704 (1994), in which a necessary party received no
notice of the appeal and therefore was unable to protect its
interests. In this case, all necessary parties have been present
and have participated at all stages of the proceedings. The
motion to dismiss is denied.
II.
St. Paul first contends that the evidence is insufficient to
support the commission's finding that Ms. Hensley's right wrist
symptoms resulted from a change in condition relating to her
original 1992 CTS. St. Paul argues that the evidence proves, as
a matter of law, that Ms. Hensley's right CTS is a new condition.
It notes that Dr. Chappell checked, "yes," when asked whether
the "problem" was new. However, Dr. Chappell also explained that
"the problem" was new because Ms. Hensley had been symptom free
for six months. The record supports the commission's conclusion.
"The Commission's findings of fact are conclusive and
binding on this court if supported by credible evidence."
Russell Loungewear v. Gray, 2 Va. App. 90, 92, 341 S.E.2d 824,
825 (1986). This rule applies when an expert's opinion contains
internal conflict. See Chandler v. Schmidt Baking Co., 228 Va.
265, 321 S.E.2d 296 (1984). Dr. Chappell's opinion sufficiently
supports the commission's finding that Ms. Hensley's right CTS
was a change in condition. Dr. Chappell stated that "she has
recurrent carpal tunnel syndrome stemming from her previous
problem with this condition" and that her CTS was "a continuation
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of the problem that she had back in 1992." He explained that his
answer, "yes," to the question whether Ms. Hensley's right CTS
was a new problem, related to a reoccurrence of symptoms
following a period of remission, not to the question of
causation.
III.
Our holding that the record supports the commission's
finding that Ms. Hensley's right CTS represented a change in the
condition of her original 1992 CTS moots St. Paul's contention
that the April 12, 1994 award should be set aside because of a
mutual mistake of fact.
IV.
St. Paul and Ms. Hensley contend that the commission's equal
division of liability for payment of benefits between St. Paul
and Liberty violates Code § 65.2-506. Liberty contends that it
should not be required to pay disability benefits for the left
CTS because no evidence proves that the left CTS is itself
disabling and because Ms. Hensley is receiving temporary total
disability for her right CTS.
The commission found "that [Ms. Hensley's] current total
disability, commencing June 10, 1994, is due partially to her
right-hand condition and partially to the left. It cannot be
determined which condition is predominately disabling." The
commission, thus, made no finding that either CTS was totally
disabling, but found that the two together caused total
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disability. The total disability resulting from the bilateral
CTS was the basis for an award of compensation pursuant to Code
§ 65.2-500. Either CTS alone, causing only partial incapacity,
might provide the basis for an award under Code § 65.2-502.
Code § 65.2-506 provides, in pertinent part:
If an employee receives an injury for which
compensation is payable while he is still
receiving or entitled to compensation for a
previous injury in the same employment, he
shall not at the same time be entitled to
compensation for both injuries. . . . [I]f,
at the time of the second injury, he is
receiving compensation under the provisions
of § 65.2-502, then no compensation shall be
payable on account of the first injury during
the period he receives compensation for the
second injury.
Code § 65.2-506 sets forth a statutory scheme requiring payment
of compensation for multiple injuries in inverse order of
occurrence, the injury last suffered being first compensated.
Ms. Hensley's disability in her right wrist derived from her 1992
CTS. Her left wrist disability related to a CTS that developed
later and was first diagnosed in May, 1994. Because the left CTS
contributes to Ms. Hensley's total incapacity, the left CTS may
properly be considered the basis for a total incapacity award
pursuant to Code § 65.2-500. See Smith v. Fieldcrest Mills,
Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 808 (1982). By
operation of Code § 65.2-506, compensation for the later injury
must be paid first. When that compensation is exhausted, or when
the left wrist condition ceases to impose incapacity,
compensation for the right wrist condition will resume, if
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justified. 1
At the time Ms. Hensley's left CTS was diagnosed, St. Paul
was paying her temporary total disability benefits, pursuant to
Code § 65.2-500, in accordance with their agreement memorialized
in the award of April 12, 1994. At the time her left CTS was
diagnosed, Ms. Hensley was not receiving compensation under Code
§ 65.2-502. Thus, this case does not fit precisely into the
language of § 65.2-506. However, this case does not involve
injuries that resulted from sudden precipitating events, but
rather conditions that developed gradually. Unquestionably, Ms.
Hensley's left CTS developed during her time of active
employment, a time when she was not receiving compensation. Yet,
at the same time, her earlier disease in the right wrist was
developing toward reassertion. Code § 65.2-506 expresses the
legislative approach to multiple contributing injuries. We think
that same approach, and the required time frame, are appropriate
to this case.
We hold that the commission erred in assessing liability for
Ms. Hensley's compensation equally to St. Paul and Liberty. The
commission should have applied the rationale of Code § 65.2-506
and have held Liberty liable from the time Ms. Hensley's left CTS
was diagnosed.
1
In The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d
795 (1996), issued after the commission's decision in this case,
the Virginia Supreme Court held that carpal tunnel syndrome,
derived from repetitive motion trauma, is not a compensable
condition under the Virginia Workers' Compensation Act.
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The judgment of the commission is reversed and this case is
remanded for entry of an award requiring Greif and Liberty to pay
required compensation for the duration of Ms. Hensley's present
condition and adjusting payments made between the insurance
companies, in accordance with the provisions of this opinion.
The commission is further directed to consider the applicability
and effect of The Stenrich Group v. Jemmott, 251 Va. 186, 467
S.E.2d 795 (1996), on the rights of the parties in this case.
Reversed and remanded.
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Benton, J., concurring and dissenting.
I concur in Parts I, II, and III of the opinion and in the
decision to remand based upon the Supreme Court's decision in The
Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996).
Because I would uphold the commission's decision to equally
divide between the insurers the liability for total disability
caused by two separate injuries, I do not join in Part IV of the
opinion.
The majority opinion applies Code § 65.2-506 in reversing
the commission's decision. That statute reads as follows:
If an employee receives an injury for which
compensation is payable while he is still
receiving or entitled to compensation for a
previous injury in the same employment, he
shall not at the same time be entitled to
compensation for both injuries, but if he is,
at the time of the second injury, receiving
compensation under the provisions of
§ 65.2-503, payments of compensation
thereunder shall be suspended during the
period compensation is paid on account of the
second injury, and after the termination of
payments of compensation for the second
injury, payments on account of the first
injury shall be resumed and continued until
the entire amount originally awarded has been
paid. However, if, at the time of the second
injury, he is receiving compensation under
the provisions of § 65.2-502, then no
compensation shall be payable on account of
the first injury during the period he
receives compensation for the second injury.
Code § 65.2-506.
The initial clause in the statute expresses the general view
that an employee shall not be entitled to double compensation
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that might enrich the employee. See Robinson v. Salvation Army,
20 Va. App. 570, 459 S.E.2d 103 (1995). The express language of
Code § 65.2-506 does not include, however, a first injury causing
total disability. I believe that omission was purposeful. The
statutory framework implicitly contemplates that the first injury
does not result in total disability because it is premised upon
the view that the employee is in fact employed when the second
injury occurs. A person who is totally disabled is not
employable.
Pursuant to the first sentence in Code § 65.2-506, an
employee receiving compensation for permanent partial loss or
permanent total loss from the first injury receives all of the
payments that are due under Code § 65.2-503, because payments are
only suspended while the employee is being paid compensation for
a second injury. After the payment for the second injury ends,
payment for permanent partial loss or permanent total loss
resumes and continues "until the entire amount originally awarded
has been paid." Code § 65.2-506. Thus, the employee receives
the entire amount of both awards but not at the same time. No
double dipping occurs because loss under Code § 65.2-503 is
permanent. Indeed, Code § 65.2-503(F) specifically allows
certain other compensation to be paid while compensation is paid
pursuant to Code § 65.2-503.
Under the second sentence of Code § 65.2-506, if the
employee is receiving compensation under Code § 65.2-502 for
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partial incapacity (i.e., presumably the employee is working or
able to work) and suffers a second injury, the employee must be
paid compensation for the second injury, whether partial or total
incapacity, and "no compensation shall be payable on account of
the first injury during the period he receives compensation for
the second injury." Code § 65.2-506. The commission has
consistently ruled that the statute should not be applied in a
way that financially penalizes an employee "as the result of
having suffered two unfortunate injuries in separate industrial
accidents while working for the same employer." Donahue v. Clark
Electric Contractors, Inc., 68 O.I.C. 256, 258 (1989). Clearly,
the legislative "intent was to bar the payment of compensation
for successive injuries in the same work which might result in a
double recovery or at least a compensation rate which exceeds the
pre-injury average weekly wage." Id.
If, as the majority assumes, Code § 65.2-506 applies when
the first injury is totally disabling, then whenever an employee
experiences a second injury, which is less disabling (i.e.,
partial) the compensation for the second injury would supplant
the compensation payments for the first injury. This could
result in the anomaly of an employee receiving less compensation
(i.e., payment for the partial disability) than he is entitled to
receive for the total disability he continues to suffer.
In this case, the employee had a first injury that was
totally disabling and a second injury that also was totally
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disabling. The commission found "that the claimant's current
total disability . . . is due partially to her right hand
condition and partially to the left. It cannot be determined
which condition is predominately disabling." Obviously, the
employee can receive only one payment.
Different insurance companies provided coverage during the
separate periods when the two injuries occurred. Because both
injuries are totally disabling, the commission made a sound
decision to require the insurers to share the risk during the
total incapacity caused by the two injuries. The commission did
not err in concluding that using the scheme of Code § 65.2-506 in
the instance where the first injury is totally disabling causes a
result that is unfair to the employee. I believe that this
unfairness is manifestly the reason that the statute did not
address the instance where the first injury was totally
disabling. See Donahue, 68 I.O.C. 256 (dividing liability
between two insurers when two separate injuries, each occurring
under a different insurer, resulted in total disability).
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