                        COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


KERN MOTOR COMPANY, INC. AND
 VADA GROUP SELF-INSURANCE ASSOCIATION
                                               MEMORANDUM OPINION * BY
v.      Record No. 1786-02-2          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                  FEBRUARY 4, 2003
DAVID A. BUCKLEY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Iris W. Redmond (Midkiff, Muncie & Ross,
             P.C., on brief), for appellants.

             No brief or argument for appellee.


        Kern Motor Company, Inc. (employer) contends the Workers'

Compensation Commission (commission) erred in finding David A.

Buckley (claimant) proved by clear and convincing evidence that

his bilateral carpal tunnel syndrome was causally related to his

work.     For the following reasons, we affirm the commission.

                               I.   BACKGROUND

        Claimant worked as a "body man" for employer for fifteen

years.     He used hand tools as well as air tools to paint and

repair motor vehicles.     His duties were defined as follows:

             CLAIMANT: [Y]ou get a job, and it's got the
             front end wrecked, and you've got to take
             the whole front end off. You're constantly
             using your hands. If you've got a dent,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
             you've got to use your hands to do
             that. . . .

             DEPUTY COMMISSIONER: Give me some specifics
             as far as how you use your hands, what tools
             you're using, how you use those.

             CLAIMANT: Mostly air wrenches, air chisels,
             grinders. Most of our tools are air. We do
             have quite a few hand tools, but very seldom
             when you're working production you don't
             make a tendency of using hand tools. Mostly
             it's air stuff. When a car comes in, you're
             hammering, beating on them. It's like when
             they're wrecked, you've got to put them back
             in the proper position that they was before
             they was wrecked, and in order to do that,
             you've got to tear them apart and straighten
             some stuff, put other stuff back on.

Claimant also stated that he "occasionally" worked on his own

cars.    However, this evidence showed limited exposure outside

his work.

        In November 2000, claimant first noticed numbness in his

right hand, but no diagnosis was made at that time and he

continued to perform his work.    On March 5, 2001 claimant sought

further medical treatment with his family physician, Dr. Anthony

A. Saweikis.    Dr. Saweikis diagnosed carpal tunnel syndrome and

stated further that "workmen's comp most likely [sic]."     Dr.

Saweikis advised claimant to file a workers' compensation claim.

Further testing confirmed carpal tunnel syndrome.    Claimant had

surgery on his left wrist and requires surgery on his right

wrist.




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     The commission found that:

          [C]laimant has established that he suffers
          from bilateral carpal tunnel syndrome. We
          further find that he has shown by clear and
          convincing evidence that his carpal tunnel
          syndrome is causally related to his work as
          an auto body repairman.

              *     *    *        *     *      *   *

          In short, while the claimant's evidence of
          causation is not clear and unequivocal, it
          need not meet that rigid standard. Each
          statement addressing causation by
          Dr. Saweikis, standing on its own, may not
          be sufficient to establish causation by
          clear and convincing evidence. However,
          when his opinions are reviewed in
          conjunction with all of the other facts in
          the case, we are convinced that causation
          has been established. We find that the
          evidence is sufficient to establish in our
          minds a firm belief that the claimant's
          carpal tunnel syndrome was caused by his
          work for the employer.

Employer appealed that decision.

                          II.     ANALYSIS

     Employer contends that no credible evidence supports the

commission's finding that claimant proved, by clear and

convincing evidence, that his bilateral carpal tunnel syndrome

arose out of his employment.    We disagree.

     "On appeal, we view the evidence in the light most

favorable to the claimant, who prevailed before the commission."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d

335, 340 (1998) (citations omitted).    "'Decisions of the

commission as to questions of fact, if supported by credible



                                - 3 -
evidence, are conclusive and binding on this Court.'"     WLR Foods

v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)

(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991)).   "Where reasonable inferences

may be drawn from the evidence in support of the commission's

factual findings, they will not be disturbed by this Court on

appeal."   Hawks v. Henrico County School Board, 7 Va. App. 398,

404, 374 S.E.2d 695, 698 (1988).    "The commission, like any

other fact finder, may consider both direct and circumstantial

evidence in its disposition of a claim.   Thus, the commission

may properly consider all factual evidence, from whatever

source, whether or not a condition of the workplace caused the

injury."   VFP, Inc. v. Shepherd, 39 Va. App. 289, 293, 572

S.E.2d 510, 512 (2002).   "[T]he appellate court does not retry

the facts, reweigh . . . the evidence, or make its own

determination of the credibility of the witnesses."     Wagner

Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).

     Code § 65.2-400(C) provides that carpal tunnel syndrome is

an "ordinary disease of life as defined in [Code] § 65.2-401."

Code § 65.2-401 provides in pertinent part:

           An ordinary disease of life to which the
           general public is exposed outside of the
           employment may be treated as an occupational
           disease . . . if each of the following
           elements is established by clear and
           convincing evidence, (not a mere
           probability):

                               - 4 -
       1. That the disease exists and arose out of
       and in the course of employment as provided
       in § 65.2-400 1 with respect to occupational
       diseases and did not result from causes
       outside of the employment, and

       2.   That one of the following exists:

       a. It follows as an incident of
       occupational disease as defined in this
       title; or

       b. It is an infectious or contagious
       disease . . . ; or

1
    Code § 65.2-400(B) provides:

       A disease shall be deemed to arise out of
       the employment only if there is apparent to
       the rational mind, upon consideration of all
       the circumstances:

       1. A direct causal connection between the
       conditions under which work is performed and
       the occupational disease;

       2. It can be seen to have followed as a
       natural incident of the work as a result of
       the exposure occasioned by the nature of the
       employment;

       3. It can be fairly traced to the
       employment as the proximate cause;

       4. It is neither a disease to which an
       employee may have had substantial exposure
       outside of the employment, nor any condition
       of the neck, back, or spinal column;

       5. It is incidental to the character of the
       business and not independent of the relation
       of employer and employee; and

       6. It had its origin in a risk connected
       with the employment and flowed from that
       source as a natural consequence, though it
       need not have been foreseen or expected
       before its contraction.



                            - 5 -
            c. It is characteristic of the employment
            and was caused by conditions peculiar to
            such employment.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing.    The

testimony of a claimant may also be considered in determining

causation, especially where the medical testimony is

inconclusive."    Dollar General Store v. Cridlin, 22 Va. App.

171, 176, 468 S.E.2d 152, 152 (1996) (internal citations

omitted).

            Clear and convincing evidence has been
            defined as that measure or degree of proof
            which will produce in the mind of the trier
            of facts a firm belief or conviction as to
            the allegations sought to be established.
            It is intermediate, being more than a mere
            preponderance, but not to the extent of such
            certainty as is required beyond a reasonable
            doubt as in criminal cases. It does not
            mean clear and unequivocal.

Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211

S.E.2d 88, 92 (1975) (internal quotation and citation omitted)

(emphasis in original).

     The commission reviewed the medical reports and found that

Dr. Saweikis was "reasonably certain that the claimant's

suspected carpal tunnel syndrome was due to his work as an auto

body repairman" and that his findings were "corroborative of the

claimant's own testimony."   While claimant's other doctors did

not specifically address the source of claimant's carpal tunnel

syndrome, this did not "undermine the other evidence of



                                - 6 -
causation in the record."   No evidence established any source

other than his work as the causative agent.

     Therefore, we hold that credible evidence supports the

commission's findings that claimant established by clear and

convincing evidence that his carpal tunnel syndrome arose out of

and in the course of his employment as an auto body repairman

for fifteen years and that his injury did not result from causes

outside his employment.   For the foregoing reasons, the decision

of the commission is affirmed.

                                                         Affirmed.




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