Lead Opinion
Grеif 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:ll(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 from 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. Chappеll 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 a somewhat problematic situation, and it depends on how you define “new.” I believe that there was*550 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 cаn 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 as 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 Code § 65.2-506, the award against St. Paul be suspended and compensation be paid by Liberty until Ms. Hеnsley’s left CTS was resolved. He also ordered Liberty to reimburse St. Paul for its payments of compensation to Ms. Hensley after June 10,1994.
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 was “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. Rule 5A:ll(b) states, in pertinent part:
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 appellee. 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,
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 her original 1992 CTS. St. Paul argues that the evidence proves, as a mattеr 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 conclusivе and binding on this court if supported by credible evidence.” Russell Loungewear v. Gray, 2 Va.App. 90, 92,
III.
Our holding that the record supports the commission’s finding that Ms. Hensley’s right CTS represеnted 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.
IY.
St. Paul and Ms. Hensley contend that the commission’s equal division of liability for payment of benefits between St. Paul and Liberty violates Code § 65.2-506. Liberty contends that it should not be required to pay disability benefits for thе left CTS because no evidence proves that the left CTS is itself disabling and because Ms. Hensley is receiving temporary total disability for her right CTS.
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
Code § 65.2-506 provides, in pertinent part:
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 acсount of the first injury during the period he receives compensation for the second injury.
Code § 65.2-506 sets forth a statutory scheme requiring payment of compensation for multiple injuries in inverse order of occurrence, the injury last suffered being first compensated. Ms. Hensley’s disability in her right wrist derived from her 1992 CTS. Her left wrist disability related to a CTS that developed later and was first diagnosed in May, 1994. Because the left CTS contributes to Ms. Hensley’s total incapacity, the left CTS may properly be considered the basis for a total incapacity award pursuant to Code § 65.2-500. See Smith v. Fieldcrest Mills, Inc.,
We hold that the commission erred in assessing liability for Ms. Hensley’s compensatiоn equally to St. Paul and Liberty. The commission should have applied the rationale of Code § 65.2-506 and have held Liberty liable from the time Ms. Hensley’s left CTS was diagnosed.
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 present 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,
Reversed and remanded.
Notes
. In The Stenrich Group v. Jemmott,
Concurrence Opinion
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,
The majority opinion appliеs Code § 65.2-506 in reversing the commission’s decision. That statute reads as follows:
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 the termination of payments of compensation for the second injury, payments on account of the first injury shall be rеsumed 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.
Code § 65.2-506.
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,
Pursuant to the first sentence in Code § 65.2-506, an employee receiving compensation for permanent partial loss or permanent total loss from the first injury receives all of the payments that are due under Code § 65.2-503, because pay
Under the second sentence of Code § 65.2-506, if the employee is receiving compensation under Code § 65.2-502 for partial incapacity (i.e., presumably the employee is working or able to work) and suffers a second injury, the employee must be paid compensation for the second injury, whether partial or total incapacity, and “no compensation shall be pаyable on account of the first injury during the period he receives compensation for the second injury.” Code § 65.2-506. The commission has consistently ruled that the statute should not be applied in a way that financially penalizes an employee “as the result of having suffered two unfortunate injuries in separate industrial accidents while working for the same employer.” Donahue v. Clark Electric Contractors, Inc., 68 O.I.C. 256, 258 (1989). Clearly, the legislative “intent was to bar the payment of compensation for successive injuries in the same work which might result in a double recovery or at least a compensation rate which exceeds the pre-injury average weekly wage.” Id.
If, as the majority assumes, Code § 65.2-506 applies when the first injury is totally disabling, then whenever аn employee experiences a second injury, which is less disabling (i.e., partial) the compensation for the second injury would supplant the compensation payments for the first injury. This could result in the anomaly of an employee receiving less compensation (i.e., payment for the partial disability) than he is entitled to receive for thе total disability he continues to suffer.
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 сoncluding that using the scheme of Code § 65.2-506 in the instance where the first injury is totally disabling causes a result that is unfair to the employee. I believe that this unfairness is manifestly the reason that the statute did not address the instance where the first injury was totally disabling. See Donahue, 68 I.O.C. 256 (dividing liability between two insurers when two separate injuries, each occurring under a different insurer, resulted in total disability).