COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

BENNETT MINERAL COMPANY 

and 

ALEXSIS RISK MANAGEMENT SERVICES MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

v. Record No. 2517-94-2 OCTOBER 24, 1995 

 

CHRISTOPHER FAYETTE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Cathie W. Howard; Roya Palmer; Williams & Pierce, 

 on brief), for appellants. 

 (B. Mayes Marks, Jr.; Marks & Lee, P.C., on brief), for 

 appellee. 

 Bennett Mineral Company and Alexsis Risk Management Services 

(hereinafter collectively referred to as "employer") appeal a 

decision of the Workers' Compensation Commission awarding 

benefits to Christopher Fayette (claimant). The employer 

contends that the commission erred in finding that the claimant's 

bilateral carpal tunnel syndrome, epicondylitis, and overuse 

syndrome qualified as "diseases" under the holding of Merillat 

Indus., Inc. v. Parks, 246 Va. 429, 432, 436 S.E.2d 600, 601 

(1993). The employer argues that, absent other medical evidence, 

the response of Dr. Thomas R. Butterworth, Jr. to a written 

question submitted to him by the claimant's attorney did not 

sustain the claimant's burden of proving that his conditions 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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constituted "diseases." 

 The claimant worked for the employer as a line worker for 

eleven months. He worked five days per week, packing bags of 

kitty litter weighing sixteen to fifty pounds. His job involved 

constant hand and arm movement. The claimant bagged 

approximately 600 bags per hour. 

 In October or November 1993, the claimant began to 

experience numbness in his hands and lightness in his elbows. On 

January 5, 1994, he sought treatment at the Riverside 

Tappahannock Hospital emergency room. Dr. James Dudley diagnosed 

carpal tunnel syndrome and an early ganglion of the right thumb. 

 The claimant was placed on light duty for a few days and 

then returned to his regular work. His symptoms reappeared, 

causing him to seek treatment again on January 26, 1994 at the 

hospital emergency room. Dr. Pamela Gwaltney diagnosed bilateral 

carpal tunnel syndrome and excused the claimant from work for 

three days. In early February 1994, the claimant was referred by 

his family physician to Dr. Butterworth, an orthopedic surgeon. 

 On February 9, 1994, Dr. Butterworth diagnosed bilateral 

carpal tunnel syndrome, epicondylitis, and overuse syndrome. He 

suggested that the claimant undergo an EMG. The March 29, 1994 

EMG was abnormal and confirmed Dr. Butterworth's bilateral carpal 

tunnel syndrome diagnosis. Dr. Butterworth opined that the 

claimant was disabled due to the diagnosed conditions, which were 

directly related to his job. 
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 On June 27, 1994, Dr. Butterworth completed a questionnaire 

submitted to him by the claimant's attorney. Dr. Butterworth 

stated that he treated the claimant for "[o]veruse syndrome with 

tennis elbow and carpal tunnel syndrome bilateral." Dr. 

Butterworth answered "yes" to the following question: 

 In your opinion, with a reasonable degree of 

medical certainty, did the diseases suffered 

by your patient, namely bilateral carpal 

tunnel syndrome, lateral epicondylitis 

bilaterally, and bilateral overuse syndrome 

arise out of and in the course of your 

patient's employment with Bennett Mineral 

Company as a pinch line operator? 

 The deputy commissioner denied the claimant's application, 

finding that the claimant suffered from repetitive use conditions 

that were not defined by the medical evidence as "diseases" as 

required by Merillat. The full commission reversed, finding that 

Dr. Butterworth's affirmative answer to the question posed by the 

claimant's counsel was sufficient to sustain the claimant's 

burden of proving that his conditions were "diseases" as required 

by Merillat. We agree and affirm. 

 Upon review, the commission's findings of fact will be 

upheld if they are supported by credible evidence. James v. 

Capital Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 

487, 488-89 (1989). We view the evidence in the light most 

favorable to the party prevailing below. Bean v. Hungerford, 16 

Va. App. 183, 186, 428 S.E.2d 762, 764 (1993). However, to be 

upheld, the record must support the commission's holding. 

 First, we find that Dr. Butterworth's testimony was 
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unrebutted. That it was given in answer to a leading question 

does not, in itself, nullify its evidentiary value. Second, even 

were we to find this testimony is insufficient to establish the 

existence of "disease", this case is controlled by this Court's 

holdings in Piedmont Mfg. Co. v. East, 17 Va. App. 499, 438 

S.E.2d 769 (1993), and Perdue Farms, Inc. v. McCutchan, Va. 

App. , S.E.2d (1995), respectively, defining disease 

and holding carpal tunnel syndrome to be a compensable disease. 

Both cases were decided subsequent to Merillat and we are bound 

by these subsequent decisions. 

 Finding no error in the commission's finding that the 

claimant's conditions constitute disease, and there being no 

challenge to its finding that the diseases suffered by the 

claimant arose out of and in the course of his employment, we 

affirm the judgment of the Virginia Workers' Compensation 

Commission. 

Affirmed.