Summary
In Ashland Oil Co. v. Bean, 225 Va. 1, 3, 300 S.E.2d 739, 740 (1983), we noted that the Commission has held that "there is no provision under the occupational disease law [Virginia's Workmen's Compensation Act] permitting recovery for aggravation of ordinary diseases of life," and "an ordinary disease of life aggravated by work environment is [not] compensable under the Act."
Summary of this case from Caskey v. Dan RiverOpinion
44436 Record No. 820349.
March 11, 1983
Present: Carrico, C.J., Cochran, Poff, Compton, Thompson, Stephenson, and Russell, JJ.
Justice Thompson participated in the hearing and decision of this case prior to the effective date of his retirement on March 2, 1983.
Code Sec. 46.1-46 requires employee to show that her occupational disease had its origin in a risk connected with her employment; insufficient to show that a pre-existing disease was aggravated by a risk connected with employment.
(1) Workmen's Compensation — Statutory Construction — Occupational Disease, Defined (Code Sec. 65.1-46) — Complainant Must Show Disease Had Origin in Risk Connected With Employment.
(2) Workmen's Compensation — Occupational Disease, Defined (Code Sec. 65.1-46) — Evidence — Origin of Disease Antedated Employment and Hence Not Occupational And Not Compensable.
(3) Workmen's Compensation — Statutory Construction — Occupational Disease (Code Sec. 65.1-46) — No Provision In Statute Permits Recovery for Aggravation of Ordinary Diseases of Life by Work Environment.
The employee began work as a gas station attendant for Ashland Oil Company in June 1980. She worked alone in six-hour and nine-hour shifts without scheduled breaks or lunch hours, and her duties required her to be constantly on her feet. As part of her uniform, Bean was required to wear closed shoes with hard soles. In November, she began having pain in her left foot. In February, she consulted a podiatrist, who recommended and later performed surgery on her foot. She was thereafter unable to return to work. The podiatrist noted in his attending physician's report that the employee had stated she had a small "bump" on her left foot for a few years before she started working for Ashland. The podiatrist was of the opinion that the amount of time Bean spent on her feet at the gas station aggravated the condition and led to her problem.
The employee filed an application against Ashland and its insurer, seeking compensation for disability resulting from "Occupational Disease." Her claim was denied by a Deputy Commissioner. On review, the full Commission, with one member dissenting, found that the employee became disabled as a result of inflammation of a pre-existing bunion on her left foot and entered an award in her favor.
1. To recover under Code Sec. 65.1-46 for disability resulting from an occupational disease, a complainant must show that her disease had its origin in a risk connected with her employment.
2. Here the disease did not arise out of the employee's employment but instead the disease antedated her employment. Thus, it was not an occupational disease and not compensable under Code Sec. 65.1-46.
3. There is no provision in Code Sec. 65.1-46 permitting recovery for aggravation of ordinary diseases of life by the work environment.
Appeal from an award of the Industrial Commission of Virginia.
Reversed and dismissed.
Bruce D. White (Brault, Geschickter, Palmer Grove, on brief), for appellants.
Richard F. Wheeler for appellee.
In this appeal, we must decide whether, when work conditions aggravate an ordinary disease of life pre-existing employment, a disability resulting therefrom is compensable under the Workmen's Compensation Act.
Shirley Bean, employed for most of her life as a waitress, began work as a gas station attendant for Ashland Oil Company in June 1980. She worked alone in six-hour and nine-hour shifts without scheduled breaks or lunch hours, and her duties required her to be constantly on her feet. As part of her uniform, Bean was required to buy and wear "closed shoes" with hard soles. In November, she began having pain in her left foot, and in February she consulted Dr. Bruce Vogel, a podiatrist. Dr. Vogel diagnosed her condition as "chronic bursitis secondary to hallux valgus, metatarsus primus varus, inflamed metatarsal-phalangeal joint (bunion) [secondary] to repeated trauma." Bean underwent surgery ("Bunionectomy left foot" and "Wedge osteotomy 1st metatarsal") on March 4, 1981, and thereafter was unable to return to work.
In his attending physician's report, Dr. Vogel noted: "Pre-existing condition: patient stated she had a small 'bump' for a few years before she began her job but that it never caused her any problems." In a letter addressed to Bean's employer, he said that "[t]he amount of time spent on her feet in closed hard shoes was definitely a factor in the cause of her problem."
Bean filed an application against her employer and its insurer, Insurance Company of North America, seeking compensation for disability resulting from "Occupational Disease". A deputy commissioner found "an insufficient causal connection to hold this to be a compensable occupational disease" and denied the claim. On review, the full Commission, with one member dissenting, found that Bean "became disabled as a result of inflammation of a pre-existing bunion on her left foot." The Commission entered an award in Bean's favor on the ground that "the claimant's pre-existing condition was aggravated by her work to the point that it became disabling".
The Commission's findings of fact are not challenged on appeal. The issue before us is a question of law. At every stage of the proceedings below, the parties and the Commission treated Bean's bunion condition as a disease pre-existing her employment and the claim as one governed by the provisions of Code Sec. 65.1-46. On appeal, we analyze the case as it was tried.
[1-2] Code Sec. 65.1-46 provides that "the term 'occupational disease' means a disease arising out of and in the course of the employment." Explicating that definition, the statute states that "[a] disease shall be deemed to arise out of the employment only if . . . [it] had its origin in a risk connected with the employment". Bean's disease did not arise out of her employment because its origin antedated her employment. Hence, it was not an occupational disease, and only disabilities resulting from occupational diseases are compensable. The statute expressly provides that, with certain exceptions inapplicable here, "[n]o ordinary disease of life to which the general public is exposed outside of the employment shall be compensable".
Apparently, the Commission concluded that Bean's disability was compensable because the underlying disease was aggravated by "a risk connected with the employment". If so, the Commission implicitly overruled its own holdings in earlier cases. "[T]here is no provision under the occupational disease law of our Act permitting recovery for aggravation of ordinary diseases of life." Kaufman v. Star Band Company, Inc., 56 O.I.C. 190, 192 (1974) (duodenal ulcer); accord Sullins v. Southern States Cooperative, Inc., 49 O.I.C. 315 (1967) (bronchial asthma); Noel Virginia Chemicals, Inc., 48 O. I. C. 177 (1966) (sinusitis); Burner v. Southern Lightweight Aggregate Corp., 31 O.I.C. 239 (1949) (dermatitis). See also Perrin v. Brunswick Corp., 333 F. Supp. 221, 223 (W.D. Va. 1971) (pneumothorax), where the court quoted and applied the opinion of a deputy commissioner who held that " 'an ordinary disease of life aggravated by work environment is [not] compensable under the Act.' "
We hold that the Commission misapplied the controlling statute, and we will reverse the award and dismiss the claim.
Reversed and dismissed.