Thе GREIF COMPANIES/GENESCO, INC. and St. Paul Fire and Marine Insurance Company v. Barbara Jean HENSLEY, the Greif Companies/Genesco, Inc. and Liberty Mutual Fire Insurance Company.
Record No. 0991-95-3
Court of Appeals of Virginia, Richmond
June 18, 1996
471 S.E.2d 803
WILLIS, Judge
A. Thomas Lane, Jr., Arlington, for appellee Barbara Jean Hensley.
J. David Griffin (Fowler, Griffin, Coyne & Coyne, P.C., on brief), Winchester, for appellees The Greif Companies/Genesco, Inc. and Liberty Mutual Fire Insurance Company.
Before BENTON, WILLIS and BRAY, JJ.
WILLIS, Judge.
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
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 frоm her previous problem with this condition.” He restricted her to performing no piece work. Ms. Hensley has not worked since March 14, 1994.
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 а 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 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 аs 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
On review, the full commission affirmed the deputy commissioner‘s findings regarding the right and left CTS. The commission further found that Ms. Hensley‘s total disability wаs “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
I.
We first address the motion to dismiss.
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 appellеe. 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, 445 S.E.2d 704 (1994), in which a necessary party received no notice of the appeal and therefоre 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 hеr 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.
“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 rеcurrent carpal tunnel syndrome stemming from her previous problem with this condition” and that her CTS was “a continuation 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 сausation.
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 аnd Liberty violates
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
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.
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
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 рresent 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.
BENTON, Judge, 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
The majority opinion applies
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 thе 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.
The initial clause in the statute expresses the general view that an employee shall not be entitled to double compensation that might enrich the employee. See Robinson v. Salvation Army, 20 Va. App. 570, 459 S.E.2d 103 (1995). The express language of
Pursuant to the first sentence in
Under the second sentence of
If, as the majority assumes,
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