VIRGINIA by gabyion


									VIRGINIA:                                                                           04/22/2004

                                                                             Opinion by DUDLEY
v.                     VWC File No. 211-74-80


Mr. Alan Oakes Bomar
1516 Lakeside Drive
Lynchburg, VA 24501
Claimant, Pro Se.

Melissa A. Young, Esquire
Gentry, Locke, Rakes and Moore, L.L.P.
P.O. Box 40013
Roanoke, VA 24022-0013
for the Defendants.

     REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and
Commissioner Dudley at Richmond, Virginia.

       The claimant has requested Review of the Chief Deputy Commissioner’s October 15, 2003,

Opinion denying temporary total disability benefits, permanent partial disability benefits, and

medical benefits. He argues that the employer did not disclose information to him and that his

medical records have been misinterpreted. We affirm in part and reverse in part.

       We will recite only the facts necessary to explain this Opinion.            The claimant, a

merchandiser, filed a Claim for Benefits on October 21, 2002, alleging that he suffered an

occupational disease of osteoarthritis of the right elbow. In an attached letter, he alleged that on

July 10, 2002, he began having pain in his right elbow while moving pallets. The claimant
                                                                            VWC File No. 211-74-80

denied feeling a specific snap or pop in the joint. He claimed temporary total disability benefits

beginning August 27, 2002, and continuing.

       In a September 18, 2002, response, the employer denied the claim on the basis that: “[I]t

does not meet the requirements of the Virginia Workers’ Compensation Act.”

       At the October 9, 2003, Hearing, the claimant testified that his pre-injury duties involved

moving pallets of beverages into stores, and stocking the shelves and coolers. He stated that on

July 10, 2002, while moving a pallet, he noticed a warm sensation in his right arm. The claimant

noted that his arm rubbed against the swinging doors in the store, and he attributed the sensation

to that. A few minutes later, when he lifted a pallet and threw it on a stack, he felt pain in his

arm. The claimant described it as “a shooting pain through my arm that only lasted a few

seconds.” (Tr. at 15). He said that he experienced more pain as he moved another pallet and

continued to perform his duties. Before the claimant left the store, his arm swelled and became

very painful.

       On cross-examination, the claimant said that his pain began “when [he] was moving the

pallets.” (Tr. at 44). He elaborated that: “When I threw the pallet up there, that’s when the pain---

the original pain started.” (Tr. at 44). The claimant agreed that he did not feel a pop or a snap in his

arm. He said that he believed that his work caused his condition. The claimant stated that: “I will

assume that when I move[d] the pallet, that I damaged cartilage in my elbow.” (Tr. at 48).

       In a February 19, 2003, deposition, the claimant described the incident as follows:

                I was checking [product] in and moving it around and my arm
                began hurting. . . . [T]here was no pop and there was no snap. But

                                                                        VWC File No. 211-74-80

               before I could leave the store my arm had gotten to a swell. (Dep.
               at 31)

The claimant stated that every lifting motion was painful. When he was specifically asked what he

was doing when he experienced pain, he said that: “I was moving product. And every time that I

would bend my elbow my arm would hurt.” (Dep. at 34). The claimant could not recall the precise

activity that he was doing when the pain started.

       Dan Hudson, manager, testified that on July 10, 2002, the claimant told him that he felt or

heard a pop in his arm. Hudson saw that his arm was swollen.

       The pertinent medical record reflects that on July 10, 2002, the claimant sought medical

treatment from Dr. Daniel Hey of Physicians Treatment Center. He reported that he pushed beer

containers at work on July 9, 2002, and “[f]elt discomfort in his [right] forearm and shortly

thereafter noticed that he had decreased extension in his [right] elbow.”          X-rays showed

degenerative change of the right elbow without fracture or subluxation. Dr. Hey removed the

claimant from work and referred him to Dr. Robert W. Sydnor, orthopedic surgeon.

       Dr. Sydnor evaluated the claimant on July 23, 2002, for right elbow stiffness. He noted the

following history:

               [The claimant] does not have a specific inciting event, but is
               employed by Simms [sic] Wholesale Company and lifts a number of
               cases of beer per day in his work. He feels this is related to the
               elbow problem. He had noted some swelling and stiffness and
               inability to fully extend the elbow and lack of supination. This has
               been over the last several weeks.

                                                                             VWC File No. 211-74-80

Dr. Sydnor diagnosed a right elbow flexion contracture, with underlying osteoarthritic changes.

After a second examination on August 6, 2002, Dr. Sydnor concluded that the claimant suffered

from degenerative arthritis of the right elbow that was exacerbated by his work activities.

          On August 9, 2002, Dr. Matthew W. Tatom, osteopath, completed an Attending Physician’s

Report which reported that the claimant injured his right elbow “while moving product” on

July 10, 2002. Dr. Tatom diagnosed a right elbow, forearm, and wrist injury.

          Dr. Linda Staiger, orthopedic surgeon, examined the claimant on August 29, 2002.

Dr. Staiger noted that his job entailed unloading beer products and stocking shelves. She reported

that: “After July 4th, which was a particularly busy weekend, [the claimant] noticed swelling and

decreased motion in both flexion and extension of the right elbow. However, he is not having much

pain.” Dr. Staiger diagnosed a right elbow strain and osteoarthritis.

          In a June 3, 2003, letter, Dr. Sydnor indicated his belief that the claimant’s elbow condition

was due to the heavy and repetitive lifting he did at work. Dr. Sydnor noted that he had “reviewed

[the claimant’s] record and on the initial encounter . . . [he] mentioned that there had not been a

specific inciting event,” but that there were degenerative changes in his elbow. Dr. Sydnor also

noted that the claimant had “a pretty strong history of repetitive heavy lifting over a number of


          The Chief Deputy Commissioner determined that the claimant failed to prove that he

sustained a compensable injury by accident, occupational disease, or ordinary disease of life. We

note that the only claim filed by him was based on an alleged occupational disease. Accordingly,

                                                                            VWC File No. 211-74-80

we find that it was error for the Chief Deputy Commissioner to address the issue of whether the

claimant proved a compensable injury by accident.

        We begin by addressing the claimant’s assertions on appeal that he was unaware of all of the

employer’s defenses, and that as such, it weakened his case. The Hearing transcript reveals that the

Chief Deputy Commissioner recited the employer’s defenses at the beginning of the proceeding.

The claimant made no indication of any misunderstanding.             Additionally, in its answers to

interrogatories, the employer argued that he did not suffer an injury that arose out of and in the

course of his employment. This is a valid defense, and in fact, directly addresses the definitive issue

in this case.

        Also, we are not persuaded by the claimant’s contentions that he was denied the ability to

participate in discovery and that the employer failed to disclose requested information to him. The

record reflects that the employer certified that it mailed answers to his interrogatories to his address

of record on May 15, 2003. The record further reflects that copies of the employer’s answers to

interrogatories, as well as the claimant’s February 19, 2003, deposition, were filed with the

Commission on May 19, 2003. He was entitled to review the Commission’s file at any time.

        Regardless, the claimant had the burden to present evidence to prove his claim. Irrespective

of the employer’s defenses, as we will discuss below, his evidence failed to establish the

requirements for an occupational disease, or a compensable ordinary disease of life.

        As stated above, the claimant bears the burden of proving that his disability is caused by an

occupational disease. For a condition to qualify as an occupational disease, the Virginia Workers’

Compensation Act (the Act) requires that the disease arise out of and in the course of employment.

                                                                           VWC File No. 211-74-80

Virginia Code § 65.2-400. Diseases that affect the general public outside of employment do not

qualify as occupational diseases under the Act. Id. The claimant’s condition cannot be considered

to be an occupational disease, because osteoarthritis affects the general public outside of


       To prove a compensable ordinary disease of life, the claimant must establish by clear and

convincing evidence that his osteoarthritis: (1) arose out of and in the course of the employment;

(2) did not result from causes outside of employment; and (3) was characteristic of, and caused by,

conditions peculiar to the employment. Code § 65.2-401. The claimant presented no evidence that

his situation did not result from conditions outside of his employment and that his osteoarthritis was

caused by conditions peculiar to his employment. In fact, while Dr. Sydnor acknowledged that the

claimant had “a pretty strong history of repetitive lifting over a number of years” at work, he also

indicated that the condition could have arisen from degenerative changes, and did not address the

impact of any conditions outside of the employment on his situation. Accordingly, we find that the

requirements of § 65.2-401 have not been met.

       In addition, it is well established that injuries resulting from repetitive motion are generally

not compensable in Virginia and cannot be classified as a disease. See Stenrich v. Jemmott, 251 Va.

186, 467 S.E.2d 795 (1996). Thus, we AFFIRM the finding that the claimant did not prove a

compensable occupational disease or a compensable ordinary disease of life.             However, we

REVERSE and VACATE the finding that he did not prove a compensable injury by accident. The

claim filed by the claimant did not allege an injury by accident, and no claim filed by him alleging

an injury by accident was before the Chief Deputy Commissioner.

                                                                         VWC File No. 211-74-80

        This matter is hereby removed from the Review docket.


        This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days

of receipt.

cc:     Sims Wholesale
        3245 Forest Brook Road
        Lynchburg, VA 24501

        AmComp Assurance Corporation
        P.O. Box 49189
        Charlotte, NC 28277


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