                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Clements and Senior Judge Willis


HARDEES OF NORTON NO. 2849 AND
 BODDIE-NOELL ENTERPRISES, INC.
                                             MEMORANDUM OPINION*
v.   Record No. 1109-02-3                         PER CURIAM
                                              SEPTEMBER 17, 2002
LENA MARIE STEPHENS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Monica Taylor Monday; Mary Beth Nash;
             Gentry Locke Rakes & Moore, on brief), for
             appellants.

             (D. Allison Mullins; Lee & Phipps, P.C., on
             brief), for appellee.


     Hardees of Norton No. 2849 and Boddie-Noell Enterprises,

Inc. (employer) contend the Workers' Compensation Commission

erred in finding that Lena Marie Stephens (claimant) proved by

clear and convincing evidence that her right carpal tunnel

syndrome was causally related to her employment. 1    Upon reviewing

the record and the parties' briefs, we conclude that this appeal

is without merit.     Accordingly, we summarily affirm the

commission's decision.     Rule 5A:27.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Claimant did not appeal the commission's finding that she
failed to prove that her left carpal tunnel syndrome was caused
by her employment. Accordingly, we will not address that issue
on appeal.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence proved that claimant began to work

for employer as a biscuit maker on October 23, 2000.   She

hand-prepared seven batches of dough, which made about three

dozen rolls and biscuits per batch.   She was required to pour

the dough into a large bowl and mix it by hand, then put it on a

table and roll it and cut it.    She made dough for about one hour

and forty-five minutes to two hours during each six to

eight-hour shift.   After three to four weeks of performing her

job, claimant began to have bilateral arm swelling and numbness.

Her left arm had bothered her before beginning work for

employer, but she had no problems with her right arm before her

employment.

     Jimmy Stidham, employer's manager, confirmed that claimant

made dough for approximately one to two and one-half hours each

shift.   She also operated a cash register, waited on customers,

cleaned the dining room, and stocked items.   Within a few weeks

of starting work, claimant told Stidham that her doctor told her

to stop making biscuits because of something in her back.     As a

result, he reassigned her to work as a full-time cashier.

     On November 10, 2000, claimant complained to Dr. Neal A.

Jewell, an orthopedic surgeon, that she suffered from back pain,

lower extremity pain, and a "recent onset of swelling in her
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hands, numbness in her hands at night."   She told Dr. Jewell

that she started working for employer on October 23, 2000 and

that she made biscuit dough.   She told him how she kneaded and

cut the dough.   Dr. Jewell diagnosed possible early carpal

tunnel syndrome.   He recommended that claimant stop the

biscuit-making job duties because her symptoms seemed to improve

with rest.   Dr. Jewell noted that the symptoms started "almost

immediately following the beginning of the work activities."

     On December 4, 2000, claimant continued to complain to

Dr. Jewell of "carpal tunnel type of symptoms with intermittent

numbness in both hands, increased after work and increased at

night."   Dr. Jewell diagnosed cervical spondylosis, bilateral

carpal tunnel syndrome, and chronic lumbar pain.   He told

claimant to stop her job "since it is chronically aggravating

her carpal tunnel symptoms."

     In a December 6, 2000 letter, Dr. Jewell opined that

claimant should stop her food preparation duties at work because

"[c]onstant kneading of the dough and other biscuit making

activities have, from the outset of her employment at Hardee's,

caused these carpal tunnel symptoms."

     On January 4, 2001, claimant told Dr. Jewell she had not

been working for the past two weeks and that her symptoms, other

than right index finger numbness, seemed to be resolving.     On

February 15, 2001, Dr. Jewell noted that claimant's "right

carpal tunnel symptoms are unchanged [with] . . . persistent
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numbness and pain in the median nerve distribution [and]

. . . diffuse hand pain and intermittent swelling in the hand."

Dr. Jewell diagnosed right carpal tunnel syndrome secondary to

claimant's work duties beginning on October 23, 2001 and

"longstanding" left carpal tunnel syndrome.   Bilateral nerve

conduction studies done on February 20, 2001 revealed

"compression of the median nerves at the wrist as in carpal

tunnel syndrome."

     On March 8, 2001, Dr. Jewell opined that claimant's "right

carpal tunnel symptoms are related to the job activities at

Hardee's."   Dr. Jewell noted that the left carpal tunnel

symptoms were not related to the employment due to claimant's

pre-existing positive nerve conduction studies on the left.

     Dr. Richard Blume, an occupational medicine specialist,

reviewed claimant's medical records for employer.   On June 7,

2001, Dr. Blume opined that the medical findings failed to

document the presence of carpal tunnel syndrome in either upper

extremity.   He concluded that claimant's complaints did not

support a diagnosis of carpal tunnel syndrome and that her work

history did not suggest a risk of carpal tunnel syndrome.    He

emphasized that claimant's symptoms could indicate fibromyalgia

and noted that she was a twenty-year cigarette smoker.

     Carpal tunnel syndrome, an ordinary disease of life under

Code § 65.2-401, is compensable, if a claimant proves


                               - 4 -
          by "clear and convincing evidence, (not a
          mere probability)," 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"; and (3)
          "follows as an incident of occupational
          disease . . . [;] is an infectious or
          contagious disease contracted in the course
          of [specified types of employment];
          or . . . is characteristic of the employment
          and was caused by conditions peculiar to
          such employment." . . . [A] disease arises
          out of the employment "if there is [inter
          alia,] . . . [a] direct causal connection
          between the conditions under which work is
          performed and the occupational disease;
          . . . [and] [i]t can be fairly traced to the
          employment as the proximate cause . . . ."

           *      *      *      *      *         *     *

               The commission's determination
          regarding causation is a finding of fact.    A
          finding of causation need not be based
          exclusively on medical evidence. . . .

               In determining whether credible
          evidence exists to support the commission's
          findings of fact, "the appellate court does
          not retry the facts, reweigh . . . the
          evidence, or make its own determination of
          the credibility of the witnesses." Thus,
          unless we can say as a matter of law that
          claimant failed to sustain her burden of
          proving causation, the commission's findings
          are binding and conclusive upon us.

Lee County Sch. Bd. v. Miller, 38 Va. App. 253, 259-61, 563

S.E.2d 364, 377-78 (2002) (citations omitted).

     Claimant's testimony and Dr. Jewell's medical records and

opinions constitute credible evidence to support the

commission's finding that claimant proved by clear and

convincing evidence that her right carpal tunnel syndrome was
                              - 5 -
caused by her employment.   Dr. Jewell, who was aware of

claimant's job duties and the fact that her symptoms began

shortly after she started working for employer, opined that her

job activities caused her right carpal tunnel symptoms and that

her right carpal tunnel symptoms were related to her job

activities.   As fact finder, the commission was entitled to

accept Dr. Jewell's unequivocal opinion and to reject

Dr. Blume's contrary opinion.    Dr. Blume reviewed medical

records at employer's request.    However, unlike Dr. Jewell,

Dr. Blume never examined claimant nor did he treat her over an

extended period of time.

     Furthermore, credible evidence supports the commission's

finding that claimant met her burden of proving her right carpal

tunnel syndrome did not result from causes outside her

employment.   Claimant testified that she started having problems

with her right arm within several weeks after she began working

for employer.   When she first saw Dr. Jewell, she described her

biscuit-making duties to him.    Dr. Jewell's medical records and

opinions, coupled with claimant's testimony, provided clear and

convincing evidence that claimant's right carpal tunnel syndrome

resulted from the activities required by her job making biscuits

for employer rather than any other medical condition or her

twenty-year history of smoking cigarettes.   As the commission

noted,


                                 - 6 -
          Dr. Jewell repeatedly advised that the right
          carpal tunnel syndrome was caused by
          [claimant's] employment. While employer
          referred to potential causes of the
          claimant's carpal tunnel syndrome, such as
          an existing neck condition or her smoking
          habit, these possibilities do not mean that
          there were causes outside of the employment.
          The claimant also showed that the condition
          was peculiar to her duties of making the
          dough. She suffered symptoms soon after she
          began these industrial activities and
          Dr. Jewell documented these complaints. The
          . . . Act does not require that the claimant
          perform the work activity continuously for
          an eight-hour shift or for several months to
          be a compensable ordinary disease of life.

     Based upon this record, we cannot find as a matter of law

that claimant's evidence failed to sustain her burden of proving

by clear and convincing evidence that her right carpal tunnel

syndrome was causally related to her employment and did not

result from causes outside of her employment.   Accordingly, we

affirm the commission's decision.

                                                         Affirmed.




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