Neighbors of VA, Inc. v. Nancy A. Digangi

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, * Elder and Fitzpatrick
Argued at Salem, Virginia
NEIGHBORS OF VIRGINIA, INC., ET AL.
MEMORANDUM OPINION** BY
v. Record No. 2064-94-3 JUDGE LARRY G. ELDER
SEPTEMBER 12, 1995
NANCY A. DIGANGI
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cathleen P. Welsh (Wharton, Aldhizer & Weaver,
P.L.C., on brief), for appellants.
(Roger A. Ritchie; Roger Ritchie & Partners,
P.L.C., on brief), for appellee.
In this workers' compensation case, Neighbors of Virginia,
Inc. and Manufacturers Alliance Insurance Company (collectively
"employer") appeal the full commission's award of benefits to
Nancy A. DiGangi (claimant). Employer asserts that claimant's
condition, right lateral epicondylitis, is not compensable as an
occupational disease under Code § 65.2-401. Because clear and
convincing evidence proved that claimant suffered from an
occupational disease, we affirm the commission's award of
benefits.
Claimant, a store manager, worked a "double shift" on
February 13, 1993 at the Neighbors Store in McGaheysville, which
*
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.
was owned by employer. Claimant shoveled snow in the store's
parking lot area for at least two hours during her shift, per
employer's request, as she had done in the past. While she was
shoveling snow, claimant developed severe pain in her right arm,
near her elbow.
Claimant received treatment from Dr. Dean Woodard beginning
on March 4, 1993, who described claimant's condition as lateral
epicondylitis (known as tennis elbow). Dr. Woodard stated that
claimant's pain was attributable to a work-related condition
caused by the heavy and repetitive nature of her work and that
claimant sustained "an occupational disease (injury)."
Employer terminated claimant on March 30, 1993. Dr. Woodard
released claimant to light duty work on April 7, 1993,
restricting use of her right arm.
On April 20, 1993, claimant was examined by Dr. Frederick L.
Fox, an orthopedic surgeon, who also diagnosed her condition as
"tennis elbow." Dr. Fox stated that claimant sustained an
occupational disease, and he indicated that all six of Code
§ 65.2-400's elements were satisfied.
The deputy commissioner denied claimant's claim, finding
that her right lateral epicondylitis was not a disease under the
Workers' Compensation Act. The commission reversed and awarded
claimant benefits. The commission considered claimant's
condition an ordinary disease of life pursuant to Code § 65.2-401
and found that the evidence was sufficient to meet the
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requirements of Code §§ 65.2-400 and -401.
We hold that the commission did not err in determining that
claimant proved the necessary elements of Code § 65.2-401 and
that she suffered from a compensable occupational disease. On
review, we construe the evidence in the light most favorable to
the party prevailing before the commission. R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). Whether a disease is causally related to the employment
and not causally related to other factors is a finding of fact
that is conclusive and binding on this Court when supported by
credible evidence. Ross Laboratories v. Barbour, 13 Va. App.
373, 377-78, 412 S.E.2d 205, 208 (1991).
In Merillat Industries, Inc. v. Parks, 246 Va. 429, 432, 436
S.E.2d 600, 601 (1993), the Supreme Court stated that the
Workers' Compensation Act "requires that the condition for which
compensation is sought as an occupational disease must first
qualify as a disease." While the Supreme Court declined to
articulate a definition of "disease" in Merillat, see
Commonwealth/Dept. of State Police v. Haga, 18 Va. App. 162, 165,
442 S.E.2d 424, 425 (1994), we did so in Piedmont Mfg. Co. v.
East, 17 Va. App. 499, 503, 438 S.E.2d 769, 772 (1993), where 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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See also Haga, 18 Va. App. at 166, 442 S.E.2d at 426.
Medical records produced by Doctors Woodard and Fox prove
that claimant's right elbow was afflicted by lateral
epicondylitis, a condition properly characterized as a disease.
"Accordingly, the commission considered claimant's condition an
ordinary disease of life within the meaning of Code § 65.2-401,"
Piedmont, 17 Va. App. at 504, 438 S.E.2d at 773, and credible
evidence supports the commission's finding in this regard.
Although her condition was characterized as an ordinary
disease of life, claimant also met her burden of producing clear
and convincing evidence that her ordinary disease of life was
employment-related. Code § 65.2-401. See Piedmont, 17 Va. App.
at 504, 438 S.E.2d at 773. First, claimant established to a
reasonable degree of medical certainty that the disease (1) arose
out of and in the course of her employment as provided in Code
§ 65.2-400; (2) did not result from causes outside of the
employment; (3) was characteristic of the employment; and (4) was
caused by conditions peculiar to the employment. Island Creek
Coal Co. v. Breeding, 6 Va. App. 1, 10, 365 S.E.2d 782, 788
(1988). As the commission stated, neither Doctor Woodard nor
Doctor Fox was equivocal in this area. Because claimant met the
requirements of Code §§ 65.2-400 and -401, the commission did not
err in awarding her benefits.
For the foregoing reasons, we affirm the commission's award.
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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