Public Broadcasting Services v. Mary E. Pax

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Senior Judges Cole and Duff
PUBLIC BROADCASTING SERVICES
AND
GREAT NORTHERN INSURANCE COMPANY
v. Record No. 0754-95-4 MEMORANDUM OPINION *
PER CURIAM
MARY E. PAX NOVEMBER 28, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles P. Monroe (Mell, Brownell & Baker, on brief),
for appellants.
Desiree M. Lange (Chasen & Boscolo, on brief), for
appellee.
Public Broadcasting Services and its insurer (hereinafter
collectively referred to as "employer") appeal a decision of the
Workers' Compensation Commission finding that Mary E. Pax's
bilateral tendinitis and/or tenosynovitis qualifies as a
compensable occupational disease within the meaning of "disease"
under the Workers' Compensation Act ("the Act"). Pursuant to
Rule 5A:21(b), Pax raises an additional question. She contends
that the commission erred in finding that she failed to meet her
burden of proving that her ordinary disease of life was caused by
her employment. For the following reasons, we affirm the
commission's ruling that Pax's condition constitutes a "disease"
under the Act, and we reverse the commission's ruling that Pax
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
failed to prove that her condition was caused by her employment.
The facts are not in dispute. In September 1989, Pax began
working for employer as a contracts associate or clerical worker.
In her job, she used a keyboard to enter data into a computer.
When she returned from vacation in September 1992, she was
confronted with a backlog of work. During her efforts to reduce
this backlog, she began to notice stiffness, soreness, and pain
in her hands. Pax's symptoms persisted and she sought medical
treatment.
On October 1, 1992, Pax was examined by Dr. Bruce M.
Freedman, who diagnosed bilateral tenosynovitis and tendinitis.
In his October 1, 1992 office notes, Dr. Freedman opined that
"[w]ithout a history of other significant medical problems or
strenuous activities outside the workplace, I believe that her
wrist pains are causally related to her work. The sudden onset
of this pain clinically presents as acute tendinitis or
inflammation of the synovium within the carpal canal and distal
forearms."
In February 1993, Dr. Freedman referred Pax to Dr. Robert
Kurtzke for a neurological evaluation. On February 4, 1993, Dr.
Kurtzke examined Pax and noted that her job predisposed her to
possible median nerve compression at the wrist. He recommended
Pax undergo nerve conduction studies and EMG. The results of
these studies were normal.
In February 1993, Pax also came under the care of Dr. Edward
C. Rabbitt, an orthopedic surgeon. Dr. Rabbitt's March 24, 1993
Attending Physician's Report reflects that he believed that Pax's
condition was related to her employment.
In October 1994, Pax was examined by Dr. Stuart R. Stark at
employer's request. Dr. Stark suspected carpal tunnel syndrome,
even though Pax had normal electrodiagnostic studies in the past.
He recommended that repeat studies be performed. Dr. Stark
stated that if the studies were abnormal, he would opine within a
reasonable degree of medical certainty that Pax had work-related
carpal tunnel syndrome. If the studies came back as normal, he
might have a different opinion. There is no evidence that these
studies were ever performed.
Relying upon the physicians' diagnoses, and the dictionary
definitions of disease and tenosynovitis, the commission found
that Pax's condition constituted a "disease" within the meaning
of occupational disease under the Act. However, the commission
denied compensation on the ground that Pax failed to prove by
clear and convincing evidence, to a reasonable degree of medical
certainty, that her ordinary disease of life was caused by her
employment.
I. "Disease" Issue
In Piedmont Mfg. Co. v. East, 17 Va. App. 499, 503, 438
S.E.2d 769, 772 (1993), we defined "disease" as:
any deviation from or interruption of the
normal structure or function of any part,
organ, or 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.
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"[T]he definition enunciated in Piedmont [has been
recognized by this Court] as the general and accepted meaning of
the term 'disease,' a term which is presumed to be known by the
legislature and is employed by it without restriction in Code
§§ 65.2-400 and 65.2-401." Perdue Farms, Inc. v. McCutchan, 21
Va. App. 65, 68, 461 S.E.2d 431, 435 (1995).
Tendinitis is defined as "inflammation of tendons and of
tendon-muscle attachments." Dorland's Illustrated Medical
Dictionary 1315 (26th ed. 1985). Tenosynovitis is defined as
"inflammation of a tendon sheath." Id. at 1316. Using these
general medical definitions, as we did for carpal tunnel syndrome
in Perdue, we find that they place tendinitis and tenosynovitis
within the definition of disease set forth in Piedmont and
approved of in Perdue.
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). This
Court must uphold the commission's factual findings if supported
by credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
As in Perdue, Pax's condition did not present as an obvious,
sudden, mechanical or structural change in her body. Rather,
credible evidence supports the commission's finding that Pax's
tendinitis and/or tenosynovitis are conditions characterized as
"diseases" within the meaning of the Act.
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II. Causation
Rule 5A:21(b) permits appellee to raise in her reply brief
"any additional questions the appellee wishes to present." The
rule makes no exception for instances in which appellee may have
also filed her own appeal. Accordingly, appellee is not barred
from raising the same issues in her reply brief as those raised
in her own appeal, which was dismissed.
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).
Unless we can say as a matter of law that Pax's evidence
sustained her burden of proving causation, 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).
The commission incorrectly found that "Dr. Freedman did not
comment on causation, except to note that the claimant related
her symptoms to her work and that exercising with weights at
home' . . . may be contributing somewhat to her upper extremity
problems. . . .'" The commission also incorrectly concluded that
"[n]one of the physicians have stated that her work was the
primary cause of her symptoms."
On October 1, 1992, Dr. Freedman opined that Pax's wrist
pains were causally related to her work. No other medical
evidence contradicts this opinion nor did Dr. Freedman ever
change his opinion. Dr. Rabbitt's March 24, 1993 Attending
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Physician's Report also provides evidence of a causal connection.
For the reasons stated, we affirm the commission's decision
as to the "disease" issue. However, we reverse and remand as to
the causation issue in order to allow the commission to
reconsider the evidence already of record in light of Drs.
Freedman's and Rabbitt's opinions concerning causation.
Affirmed in part,
reversed and remanded in part.
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