COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

AGNES V. LANNING 

v. Record No. 1795-02-1 

VIRGINIA DEPARTMENT OF TRANSPORTATION MEMORANDUM OPINION* BY 

 JUDGE ROBERT P. FRANK 

 FEBRUARY 19, 2003 

VIRGINIA DEPARTMENT OF TRANSPORTATION 

v. Record No. 1812-02-1 

AGNES V. LANNING 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 John R. Lomax (Berry, Ermlich, Lomax & 

Bennett, on briefs), for Agnes V. Lanning. 

 Cheryl A. Wilkerson, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General; 

Judith Williams Jagdmann, Deputy Attorney 

General; Edward M. Macon, Senior Assistant 

Attorney General, on briefs), for Virginia 

Department of Transportation. 

 The Virginia Department of Transportation (employer) 

contends the Workers' Compensation Commission (commission) erred 

in finding (1) Agnes V. Lanning (claimant) proved her right 

carpal tunnel syndrome (CTS) was caused by her employment and 

constituted a compensable ordinary disease of life, pursuant to 

Code § 65.2-401, and (2) claimant was entitled to temporary 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
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total disability benefits from April 11 through April 13, 2000 

and from August 29 through September 8, 2000. On cross-appeal, 

claimant contends the commission erred in (1) failing to 

consider evidence that she received short-term disability 

benefits from April 11, 2000 through October 2, 2000, (2) 

finding she failed to prove she was totally disabled from April 

11, 2000 through October 2, 2000 as a result of her compensable 

CTS, and (3) holding claimant responsible for $1,000 in 

attorney's fees. We find the commission did not err, and we 

affirm the commission's decision. 

A. Causation 

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

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

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

actual determination of causation is a factual finding that will 

not be disturbed on appeal if there is credible evidence to 

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 

684, 688, 376 S.E.2d 814, 817 (1989). 

 Code § 65.2-400(C) provides that "[h]earing loss and the 

condition of carpal tunnel syndrome are not occupational 

diseases but are ordinary diseases of life as defined in 

§ 65.2-401." The Code allows compensation for CTS as an 

ordinary disease of life: 

if each of the following elements is 

established by clear and convincing 

evidence, (not a mere probability): 
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1. That the disease exists and arose out of 

and in the course of employment as provided 

in § 65.2-400 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 

c. It is characteristic of the employment 

and was caused by conditions peculiar to 

such employment. 

Code § 65.2-401. 

Evidence is clear and convincing when it 

produces in the fact finder "'a firm belief 

or conviction as to the allegations sought 

to be established. It is . . . 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 v. Lucas, 215 Va. 535, 

540-41, 211 S.E.2d 88, 92 (1975) (quoting 

Cross v. Ledford, 161 Ohio St. 469, 120 

N.E.2d 118, 123 (1954)). 

Lee County Sch. Bd. v. Miller, 38 Va. App. 253, 259-60, 563 

S.E.2d 374, 377 (2002) (ellipsis in original). 

 Claimant originally worked as a toll booth attendant for 

employer until a workplace injury involving her left shoulder in 

1992. She began doing computer data entry for employer in 1994. 

Her CTS symptoms worsened during that employment, eventually 

becoming acute on February 25, 2000 when she could not move her 
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fingers. Dr. Frank Burns, the treating physician, explained in 

a 2001 letter: 

[W]hen she could not use her left arm and 

all [after the 1992 workplace injury], she 

started having symptoms of right carpal 

tunnel syndrome. My first note on this goes 

back to May 1994, when she was still having 

to use her right arm more. She has had 

flare ups of this off and on over the years 

and it became much more severe in 1999, and 

in 2000, I did a carpal tunnel release 

because it had gotten so bad. She was back 

at a different type of work then, using a 

computer 8 hours a day, and the right carpal 

tunnel became much worse. 

* * * * * * * 

From reviewing this whole chart, this lady's 

injury goes all the way back to her original 

injury, we have put a lot of stress and 

strain on her right arm and over the years 

she has developed carpal tunnel syndrome, 

which has become worse with the type of 

computer work she is now doing. I think her 

pain is related to her on the job injury and 

the recurrences that she has had is [sic] 

related back to her original injuries and 

having to use the right arm more, and also 

the work she is doing now, using the 

computer. 

 Claimant also testified regarding her CTS. She explained 

she had recurring numbness in her right hand which culminated in 

the February 25th incident during which she could not move her 

fingers. Her CTS was more painful during the day than in the 

evening. She explained she averaged six hours a day working on 

a computer. Although she had a computer at home, she used it 

"very – very seldom," explaining she "didn't want to look at it" 
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after a day at work. She did not knit, garden, or use hand 

tools at home. 

 The commission reviewed the entirety of the medical 

evidence, including records and letters from Dr. Burns. The 

commission concluded: 

We believe that the evidence, as a whole, 

points to the claimant's work as the cause 

of her condition. Dr. Burns provided the 

necessary medical corroboration that her 

condition was the result of her employment, 

and there was no evidence of any 

non-employment factors causing her 

condition. Thus, we agree with the deputy 

commissioner that the claimant met her 

burden of proof under Code § 65.2-401 and 

established that she had compensable right 

carpal tunnel syndrome. 

 Dr. Burns's records and opinions, coupled with claimant's 

testimony, constitute credible evidence that claimant's 

employment caused her right CTS under the criteria established 

by Code § 65.2-401.1 In context, Dr. Burns clearly intended the 

word "related" to indicate causation. As we noted in the 

earlier appeal of this case, Dr. Burns did not merely use 

"related" to explain the connection between complainant's work 

and her injury, he also explained how her work place caused the 

1

 Employer suggests on appeal that the claim should have 

been filed as a change of condition developing, in part, out of 

claimant's earlier compensable workplace injury. Employer did 

not make this argument on causation to the commission, and we 

will not consider it on appeal. See Rule 5A:18; Clark v. 

Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262 

(1999). 
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injury. Lanning v. Virginia Dept. of Transp., 37 Va. App. 701, 

708, 561 S.E.2d 33, 36-37 (2002). 

 Even if the medical evidence did not provide clear and 

convincing evidence regarding the cause of claimant's right CTS, 

"the commission may rely on the testimony of the claimant to 

establish this link." Lee County Sch. Bd., 38 Va. App. at 260, 

563 S.E.2d at 378. See also Dollar Gen. Store v. Cridlin, 22 

Va. App. 171, 177-78, 468 S.E.2d 152, 154-55 (1996) (explaining 

medical evidence is not required for a finding of causation). 

Claimant testified she worked six hours a day at a computer, and 

her hand was more painful at work. Based on her testimony 

regarding her activities outside of work, the commission found 

nothing she did outside of work contributed to her CTS. 

 Employer argues Dr. Burns's opinion should be interpreted 

to conclude that claimant's 1992 injury was the actual cause of 

her CTS, not her work beginning in 1994. Therefore, employer 

claims, her current working conditions were not the clear and 

convincing cause of her CTS, and the injury is not compensable. 

Employer contends claimant's current working conditions "merely 

aggravated, exacerbated or contributed to" her CTS, citing 

Pollard v. Reynolds Metals Co., VWC File No. 189-80-34 (Dec. 2, 

1998), as "precedent." 

 This Court has stated many times that Code § 65.2-401 does 

not require a claimant prove one single source for an ordinary 

disease of life, but instead must link the disease to a primary
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source arising out of working conditions. See Lee County Sch. 

Bd., 38 Va. App. at 261, 563 S.E.2d at 378; Piedmont Mfg. Co. v. 

East, 17 Va. App. 499, 506-07, 438 S.E.2d 769, 774 (1993); Ross 

Labs. & Associated Indem. Corp. v. Barbour, 13 Va. App. 373, 

378-79, 412 S.E.2d 205, 208-09 (1991). The record supports the 

commission's finding on this issue. 

 Dr. Burns indicated that, after her 1992 injury to her left 

shoulder and arm, claimant began favoring her right side. 

Nothing in the record suggests claimant's right CTS directly 

resulted from her left shoulder injury in 1992. Rather, the 

evidence indicates claimant began to favor her right side as a 

result of the earlier injury. Dr. Burns stated that, at the 

time her CTS became acute, "[s]he was back at a different type 

of work then, using a computer 8 hours a day." Claimant also 

testified that her condition was worse at work. 

 While her 1992 injury probably had some role in the 

development of claimant's CTS, that injury was not the primary 

source of the disease. The evidence, viewed in the light most 

favorable to claimant, proves claimant's data entry job was the 

primary cause of her right CTS. Accordingly, we defer to the 

commission's factual finding that claimant proved by clear and 

convincing evidence that her CTS constituted a compensable 

ordinary disease of life. 
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B. Disability Period 

 The commission found claimant sustained a short period of 

disability after each of the two operations to relieve her CTS. 

On appeal and cross-appeal, claimant and employer challenge this 

finding. 

 No direct evidence from her doctor proved claimant was 

restricted from all work because of these operations. However, 

the commission, acting as fact finder, could infer from the 

medical records that claimant had shown a period of total 

disability beginning with the date of each surgery through the 

first post-operative follow-up visit. Given the type of surgery 

and the claimant's working conditions, this inference was 

reasonable. 

 Additionally, we cannot find the commission erred in 

failing to determine claimant's period of disability was longer. 

No evidence before the commission suggested a longer period of 

disability.2 

 "The threshold test of compensability is whether the 

employee is 'able fully to perform the duties of his preinjury 

employment.' Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 

S.E.2d 605, 607 (1981)." Celanese Fibers Co. v. Johnson, 229 

 2

 Claimant argues the commission refused to consider 

additional evidence supporting a longer disability period. 

Claimant also argues employer was precluded from arguing about 

the disability period. We address these arguments in Section C, 

below. We note the only evidence supporting claimant's extended 

period of disability is found in the excluded documents. 
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Va. 117, 120, 326 S.E.2d 687, 690 (1985). Claimant was asked at 

the hearing, "Now, what dates were you out of work as a result 

of this carpal tunnel syndrome?" She answered she "had surgery 

on April 11, and returned to work October 2." This statement 

proves claimant was not working between these dates, but does 

not prove she was unable to work at her preinjury employment. 

 "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 

Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). 

Accordingly, we will not disturb the commission's finding on 

appeal. 

C. Evidence of Disability Benefits 

 Claimant argues the commission improperly refused to 

consider evidence that claimant received short-term disability 

benefits from employer and that claimant's physician said she 

could not work for three weeks after the surgery. She claims 

employer's discovery responses prevented any argument against 

her claimed period of disability because the disability period 

was not listed as a contested issue in the discovery responses. 

 At the conclusion of the initial hearing, the deputy 

commissioner asked, "Any reason to keep the record open?" 

Claimant responded, "No, sir." Claimant also indicated that the 

deputy had "all the medicals." However, together with her 

letter requesting review by the full commission, claimant 
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presented several new documents for consideration by the 

commission. 

 Rule 3.3 of the Rules of the Virginia Workers' Compensation 

Commission allows consideration of after-discovered evidence by 

the full commission either by agreement of the parties or upon 

petition to reopen or receive after-discovered evidence. 

Neither of these conditions was met. 

 Employer did not agree to these submissions by the 

claimant. Instead, claimant submitted these documents with her 

letter requesting review by the full commission. Claimant 

contends this letter complied with Rule 3.3. 

 This letter, however, did not explicitly ask the commission 

to reopen the record. The letter also did not address the 

burdens placed on a party requesting the reopening of a record.3 

As claimant does not address these issues on appeal, either, we 

do not consider her argument for purposes of this review. See

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 

 3

 The party seeking to reopen the record must prove: 

(1) the evidence was obtained after the 

hearing; (2) it could not have been obtained 

prior to the hearing through the exercise of 

reasonable diligence; (3) it is not merely 

cumulative, corroborative or collateral; and 

(4) it is material and should produce an 

opposite result before the commission. 

Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452 

S.E.2d 881, 883 (1995). 
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(1992) ("Statements unsupported by argument, authority, or 

citations to the record do not merit appellate consideration. 

We will not search the record for errors in order to interpret 

the appellant's contention and correct deficiencies in a 

brief."). We find the commission did not err in failing to 

consider these documents. 

 Claimant also maintains employer cannot argue against her 

claimed disability period. She claims employer was precluded 

from arguing this point because employer did not contest the 

disability period in the discovery responses. In effect, she 

argues these responses estopped employer from arguing this issue 

and amounted to a stipulation regarding the disability period. 

 The commission correctly applied the law by finding 

claimant had to establish each and every element of her claim, 

including her alleged period of disability. See Marshall Erdman 

& Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149-50 

(1997) ("[A] party seeking compensation bears the burden of 

proving his disability and the periods of that disability."). 

Discovery responses did not change this burden. As stated in 

Code § 65.2-700, "All questions arising under this title, if not 

settled by agreements of the parties interested therein with the 

approval of the Commission, shall be determined by the 

Commission . . . ." 

 Discovery in workers' compensation cases is regulated by 

Code § 65.2-703 and the rules promulgated in accordance with 
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that section. Claimant identifies several of these rules of 

discovery. However, none of those rules requires the commission 

make a finding without evidence to support it. 

 In interrogatories, claimant asked for "all defenses and 

facts upon which the carrier will rely in denying this claim." 

Claimant did not ask for admissions, as allowed under Rule 

1.8(A). Employer responded to the interrogatories, stating it 

would rely on a defense of cumulative trauma and failure to meet 

the criteria for compensable occupational disease. The period 

of disability was not mentioned specifically. However, this 

failure did not relieve claimant of the burden of proving the 

period of disability. 

 As this Court recently pointed out in Arvizu v. Gold, 38 

Va. App. 641, 647-48, 567 S.E.2d 592, 595 (2002), failure to 

respond to discovery can be penalized, but not without clear 

authority for such a penalty. The commission could choose, in 

some circumstances, to exclude evidence when a party fails to 

disclose information during its discovery responses. See

Griffett v. Ryan, 247 Va. 465, 469, 443 S.E.2d 149, 151 (1994). 

However, we find no authority for the proposition that a 

deficiency in discovery responses relieves a claimant of its 

burden of proof. Employer, therefore, was free to argue the 
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burden was not met,4 and the commission was free to find the 

burden was not met. 

D. Attorney's Fees 

 Claimant argues the commission abused its discretion by 

requiring her to pay $1,000 in attorney's fees when the 

disability benefits awarded by the commission totaled 

approximately half that amount. Claimant did not raise this 

argument before the commission. Thus, she failed to give the 

commission the opportunity to correct any alleged error. This 

Court previously has held: 

We recognize that [appellant] was unaware of 

this alleged problem until the commission 

issued its written opinion and could not 

have raised the issue prior to that point, 

but we see no reason why [appellant] could 

not have given the commission an opportunity 

to correct this alleged error prior to 

appeal. 

Overhead Door Co. v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d 535, 

539 (1999). Thus, we will not review this issue on appeal. See

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 

S.E.2d 484, 488 (1998). 

 Finding no error, we affirm the commission's decision. 

Affirmed. 

 4

 Claimant does not argue employer attempted to introduce 

information during the hearing that was not disclosed through 

discovery.