A Rehearing En Banc was granted in this case on July 31, 1996. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

THE GREIF COMPANIES/GENESCO, INC. and 

 ST. PAUL FIRE AND MARINE 

 INSURANCE COMPANY 

 OPINION BY 

v. Record No. 0991-95-3 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 18, 1996 

BARBARA JEAN HENSLEY, 

 THE GREIF COMPANIES/GENESCO, INC. and 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Joseph C. Veith, III (Montedonico, Hamilton & 

Altman, P.C., on briefs), for appellants. 

 A. Thomas Lane, Jr., for appellee Barbara 

Jean Hensley. 

 J. David Griffin (Fowler, Griffin, Coyne & 

Coyne, P.C., on brief), for appellees The 

Greif Companies/Genesco, Inc. and Liberty 

Mutual Fire Insurance Company. 

 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 
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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 Ms. 

Hensley's right wrist. In January, 1993, she returned to work at 

Greif. On June 23, 1993, she was awarded compensation for a five 

percent permanent partial disability. 

 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. 
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 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 a 

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 
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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 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. Hensley'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 
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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 Liberty each to 

pay one-half. Liberty was also ordered to reimburse St. Paul for 

one-half of any compensation paid after May 19, 1994. St. Paul 

was ordered to pay for the cost of medical treatment for the 

right CTS and Liberty was ordered to pay the cost of medical 

treatment for the left CTS. This appeal followed. 

 I. 

 We first address the motion to dismiss. Rule 5A:11(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, 18 Va. App. 580, 
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445 S.E.2d 704 (1994), in which a necessary party received no 

notice of the appeal and therefore 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 her 

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. Chappell also explained that 

"the problem" was new because Ms. Hensley had been symptom free 

for six months. The record supports the commission's conclusion. 

 "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 

recurrent carpal tunnel syndrome stemming from her previous 

problem with this condition" and that her CTS was "a continuation 
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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 

causation. 

 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 

and Liberty violates Code § 65.2-506. Liberty contends that it 

should not be required to pay disability benefits for the 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 

determined which condition is predominately disabling." The 

commission, thus, made no finding that either CTS was totally 

disabling, but found that the two together caused total 
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disability. The total disability resulting from the bilateral 

CTS was the basis for an award of compensation pursuant to Code 

§ 65.2-500. Either CTS alone, causing only partial incapacity, 

might provide the basis for an award under Code § 65.2-502. 

 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 account 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., 224 Va. 24, 28-29, 294 S.E.2d 805, 808 (1982). By 

operation of Code § 65.2-506, compensation for the later injury 

must be paid first. When that compensation is exhausted, or when 

the left wrist condition ceases to impose incapacity, 

compensation for the right wrist condition will resume, if 
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justified.1

 

 At the time Ms. Hensley's left CTS was diagnosed, St. Paul 

was paying her temporary total disability benefits, pursuant to 

Code § 65.2-500, in accordance with their agreement memorialized 

in the award of April 12, 1994. At the time her left CTS was 

diagnosed, Ms. Hensley was not receiving compensation under Code 

§ 65.2-502. Thus, this case does not fit precisely into the 

language of § 65.2-506. However, this case does not involve 

injuries that resulted from sudden precipitating events, but 

rather conditions that developed gradually. Unquestionably, Ms. 

Hensley's left CTS developed during her time of active 

employment, a time when she was not receiving compensation. Yet, 

at the same time, her earlier disease in the right wrist was 

developing toward reassertion. Code § 65.2-506 expresses the 

legislative approach to multiple contributing injuries. We think 

that same approach, and the required time frame, are appropriate 

to this case. 

 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 Code § 65.2-506 

and have held Liberty liable from the time Ms. Hensley's left CTS 

was diagnosed. 

 1In The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 

795 (1996), issued after the commission's decision in this case, 

the Virginia Supreme Court held that carpal tunnel syndrome, 

derived from repetitive motion trauma, is not a compensable 

condition under the Virginia Workers' Compensation Act. 
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 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, 251 Va. 186, 467 

S.E.2d 795 (1996), on the rights of the parties in this case. 

 Reversed and remanded. 
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Benton, J., 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 to equally 

divide between the insurers the liability for total disability 

caused by two separate injuries, I do not join in Part IV of the 

opinion. 

 The majority opinion applies 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 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. 

Code § 65.2-506. 

 The initial clause in the statute expresses the general view 

that an employee shall not be entitled to double compensation 
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that might enrich the employee. See Robinson v. Salvation Army, 

20 Va. App. 570, 459 S.E.2d 103 (1995). The express language of 

Code § 65.2-506 does not include, however, a first injury causing 

total disability. I believe that omission was purposeful. The 

statutory framework implicitly contemplates that the first injury 

does not result in total disability because it is premised upon 

the view that the employee is in fact employed when the second 

injury occurs. A person who is totally disabled is not 

employable. 

 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 payments are 

only suspended while the employee is being paid compensation for 

a second injury. After the payment for the second injury ends, 

payment for permanent partial loss or permanent total loss 

resumes and continues "until the entire amount originally awarded 

has been paid." Code § 65.2-506. Thus, the employee receives 

the entire amount of both awards but not at the same time. No 

double dipping occurs because loss under Code § 65.2-503 is 

permanent. Indeed, Code § 65.2-503(F) specifically allows 

certain other compensation to be paid while compensation is paid 

pursuant to Code § 65.2-503. 

 Under the second sentence of Code § 65.2-506, if the 

employee is receiving compensation under Code § 65.2-502 for 
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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 payable 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 an 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 the total disability he continues to suffer. 

 In this case, the employee had a first injury that was 

totally disabling and a second injury that also was totally 
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disabling. The commission found "that the claimant's current 

total disability . . . is due partially to her right hand 

condition and partially to the left. It cannot be determined 

which condition is predominately disabling." Obviously, the 

employee can receive only one payment. 

 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 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).