Opinion
Record No. 1205-92-4
March 23, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Judith B. Henry; John E. McIntosh, Jr.; Crews Hancock, on briefs), for appellants.
(Lawrence J. Pascal; Ashcraft Gerel, on brief), for appellee.
Panel: Judges Benton, Bray and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Potomac Hospital (employer) and The Virginia Insurance Reciprocal (carrier) appeal a decision of the Workers' Compensation Commission (commission) awarding temporary total disability benefits to Doris A. Parsons (claimant). Employer contends that the evidence was insufficient to support a finding of an occupational disease that "arose out of and in the course of . . . employment" and, further, that the claim was barred by the applicable statute of limitations. After consideration of the record and briefs of the parties, we find that the commission acted correctly and, therefore, summarily affirm its decision. See Rule 5A:27.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
On appellate review, we must construe the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). A determination by the commission that a disease is causally related to employment and not attributable to other factors is a finding of fact. Ross Lab. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991). Factual findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal. Rose v. Red's Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990); Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986).
The record discloses that claimant, a "registered nurse," was "diagnosed as HIV positive" on July 27, 1988. The evidence established that she had been "splashed" with HIV infected blood while attending a patient on April 11, 1987, and had received a blood transfusion in 1982 from a donor diagnosed as HIV positive nearly three years later. The claim for benefits alleging an occupational disease was filed with the commission on June 25, 1990.
Human Immunodeficiency Virus — Type 1
For an ordinary disease of life to be compensable under Code § 65.2-401 (former Code § 65.1-46.1), "the claimant must establish 'by clear and convincing evidence, to a reasonable medical certainty' that the disease (1) arose out of and in the course of employment, (2) did not result from causes outside of the employment, and (3) . . . is an infectious disease or contagious disease contracted in the course of employment."Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 11, 365 S.E.2d 782, 788 (1988) (quoting Code § 65.1-46.1); see also Holly Farms Foods, Inc. v. Carter, ___ Va. App. ___, ___, 422 S.E.2d 165, 170 (1992);Barbour, 13 Va. App. at 378, 412 S.E.2d at 208.
Here, Dr. Mary A. Vorachek opined, "to a reasonable degree of medical certainty," that claimant "most likely contracted the HIV when she was splashed with the blood in 1987." In "the absence of any evidence that [the previous blood transfusion] was contaminated with the HIV infection" at the time claimant received the blood, the commission was justified in concluding that claimant's disease "arose out of and in the course of her employment" and "did not result from causes outside of the employment." See Barbour, 13 Va. App. at 378, 412 S.E.2d at 208;Carter, ___ Va. App. at ___, 422 S.E.2d at 170-71.
Employer's contention that the claim is barred by the two-year statute of limitation applicable to injury by accident is without merit. The commission "addressed the issue of compensability as a result of an . . . occupational disease." Claimant was diagnosed on July 27, 1988, and filed her claim on June 25, 1990, well within the two-year statutory period for an occupational disease. See Code § 65.2-406(A)(5) (formerly Code § 65.1-52(3)).
Accordingly, the decision of the commission is affirmed.
Affirmed.