Rene L. Putnam v Safeway, Inc.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
RENE L. PUTNAM
v. 	Record No. 2778-95-4 	MEMORANDUM OPINION*
PER CURIAM
SAFEWAY, INC. 	MAY 21, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James F. Green; Ashcraft & Gerel, on
brief), for appellant.
(Kevin J. O'Connell; O'Connell & O'Connell,
on brief), for appellee.
Rene L. Putnam ("claimant") contends that the Workers'
Compensation Commission erred in finding that she failed to prove
that her employment caused her bilateral carpal tunnel syndrome.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. 	Accordingly, we
summarily affirm the commission's decision. 	Rule 5A:27.1
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. 	Virginia Dep't of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). 	"Whether a disease is causally related to the employment
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1We recognize that, in light of the Supreme Court's decision
in Steinrich Group v. Jemmott, ___ Va. ___, 467 S.E.2d 795
(1996), the commission erred in finding that claimant's carpal
tunnel syndrome constituted a "disease" within the meaning of an
occupational disease under the Workers' Compensation Act.
However, because employer did not appeal this finding, it is
binding and conclusive upon this Court.

2
and not causally related to other factors . . . is a finding of
fact." 	Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365
S.E.2d 782, 788 (1988). 	Unless we can say as a matter of law
that claimant's evidence sustained her burden of proof, 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).
An occupational disease is one "arising out of and in the
course of employment." 	Code § 65.2-400(A). 	"A disease shall be
deemed to arise out of the employment" when the evidence
establishes six elements. 	Code § 65.2-400(B). 	Elements (1) and
(6) require evidence showing "[a] direct causal connection
between the conditions under which work is performed and the
occupational disease" and that the disease "had its origin in a
risk connected with the employment and flowed from that source as
a natural consequence . . . ." 	Code § 65.2-400(B)(1) and (B)(6).
The commission found that claimant failed to establish a
compensable occupational disease under the requirements of Code
§ 65.2-400.
In denying claimant's application, the commission found as
follows: The most positive evidence regarding
causation presented by the claimant in this
case is Dr. [Hugo A.] Davalos' interrogatory
response, through which he agrees only that
the carpal tunnel syndrome is "directly
related to the nature of the claimant's
employment." 	There is no evidence in this
case that the carpal tunnel syndrome was
proximately caused by that work.

3
The commission, in its role as fact finder, was entitled to
give little weight to Dr. Davalos' opinion where he failed to
state with any degree of reasonable medical certainty that
claimant's employment caused her carpal tunnel syndrome. 	As the
commission correctly noted, the fact that claimant's carpal
tunnel syndrome may have been related to the nature of her work
is not sufficient to show that it had its origin in a risk
connected to her employment. 	The record also showed that Dr.
Royfe did not render an opinion on causation and Dr. J. Mark
Evans opined that claimant's carpal tunnel syndrome was not
caused by her employment.
Based upon the absence of any persuasive medical opinion
that claimant's work caused her carpal tunnel syndrome, claimant
did not prove as a matter of law a compensable occupational
disease pursuant to the requirements of Code § 65.2-400. 	Thus,
the commission did not err in denying her application based upon
a finding that she did not prove that her condition was caused by
her employment or that it had its origin in a work-connected
risk.
Accordingly, we affirm the commission's decision.
Affirmed.