Opinion
Record No. 1048-94-1
Decided: April 18, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr., (Rutter Montagna, on brief), for appellant.
Richard B. Donaldson, Jr. (Jones, Blechman, Woltz Kelly, P.C., on brief), for appellee.
Present: Judges Baker, Benton and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Brenda S. Smith contends that the Workers' Compensation Commission erred (1) in finding that she failed to prove that her condition was an occupational disease attributable to her employment and (2) in failing to provide her with a hearing that comported with due process and equal protection of the laws. We affirm the commission's decision.
I.
Smith was employed by Chesapeake Potomac Telephone Company as a service representative at the Mustang Trail office in Virginia Beach from 1981 until 1991. In August 1985, Smith began to receive medical treatment from Dr. John Carlston for complaints of allergies, sore throats, headaches, loss of voice, shortness of breath, and other upper respiratory symptoms. Smith reported to Dr. Carlston that she had suffered from these allergy symptoms for at least ten to fifteen years. Dr. Carlston noted that Smith had also suffered several instances of pneumonia and was a smoker for twenty years.
Reporting symptoms of a metallic smell, headaches, nausea, dizziness, sore throat, shortness of breath, and erratic heartbeat, Smith became ill at work on three separate occasions during July and August 1991. After the third episode, Smith lost her voice and sought treatment with Dr. William R. Steffey. Smith told Dr. Steffey that while she was at work on July 25, 1991, August 1, 1991, and August 15, 1991, she had inhaled some type of fumes. Dr. Steffey was unable to determine the etiology of her problems. Smith later consulted Dr. Gary L. Schecter. Dr. Schecter was unable to determine why Smith's vocal cords were irritated.
On February 13, 1992, Smith came under the care of Dr. Linwood W. Custalow, an otolaryngologist. Smith provided Dr. Custalow with a history of headache, nausea, dizziness, cough, and other allergy-type symptoms beginning in July and August, 1991, after her exposure to certain odors at work. Dr. Custalow diagnosed multiple chemical sensitivity syndrome (MCS). Antibody tests showed that Smith had been exposed to formaldehyde and trimellitic anhydride. In an October 7, 1992, report, Dr. Custalow opined that Smith suffered from reactive airways disease and diffuse, chronic dysfunction of the nervous system as a result of exposure at work to these chemicals.
At the employer's request, Dr. G. Randall Bond, a Diplomat on the American Board of Medical Toxicology, examined Smith. He also reviewed her medical records and the employer's documents regarding the building in which she worked. In a May 11, 1993, report, Dr. Bond disputed Dr. Custalow's diagnosis of MCS syndrome. He opined that no uniquely identifying laboratory test or physical finding supported such a condition and that no generally accepted scientific understanding of causality for such a condition had been found. Dr. Bond stated that the majority of individuals with immune system alterations had no known cause for their disease. He stated that those persons seemed to have a particular vulnerability which was probably genetic. He also noted that Smith had a long history of allergies and frequent sinusitis, and he further noted that no evidence established a toxin induced alteration of her immune system.
In a June 19, 1993, report, Dr. Bond noted that Smith had related a history of exposure to carbonless copy paper at work as well as the presence of a multitude of other substances. Although he stated that carbonless copy paper could cause an allergic reaction, he opined that Smith's symptoms were very different than those described in such cases. He stated that Smith could have been exposed at any time in life to trimellitic anhydride and formaldehyde in any number of ordinary objects, including a variety of sources at work and outside her work environment. He also noted that formaldehyde is a component of tobacco smoke.
II.
In denying compensation to Smith, the commission accepted the opinion of Dr. Bond and rejected the opinion of Dr. Custalow concerning causation. The commission made the following findings in reaching its decision on the medical evidence:
[T]he evidence in the instant matter falls far short of that required to carry a burden of proof calling for clear and convincing evidence. While Dr. Custalow relates the onset of the claimant's symptoms to her exposure to chemicals in the work place, the record reveals that Smith has suffered from and been treated for multiple respiratory ailments including those that re-appeared in the summer of 1991.
Additionally, neither formaldehyde nor trimellitic anhydride were present in any detectable level in the work place. We find Dr. Bond, by virtue of his education, training, and experience as a toxicologist, to be the most qualified to determine not only whether the claimant suffers from MCS syndrome, but whether, in fact, such a syndrome actually exists. His findings in the negative, we hold are clearly supported by the evidence.
III.
For an ordinary disease of life to be treated as an occupational disease, Smith was required to establish by clear and convincing evidence, to a reasonable degree of medical certainty, that the disease arose out of and in the course of the employment, that it did not result from causes outside the employment, that it is characteristic of the employment, and that it was caused by conditions peculiar to the employment. Code Sec. 65.2-401; Greif Companies v. Sipe, 16 Va. App. 709, 714, 434 S.E.2d 314, 317-18 (1993). "Whether an ordinary disease of life is causally related to . . . employment and not related to outside factors is a factual finding that will not be disturbed on appeal if there is credible evidence to support it." Id. at 715, 434 S.E.2d at 318. Likewise, "[a] question raised by conflicting medical opinion is a question of fact." Dep't of Corrections v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "[T]hat contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).
The record establishes that the commission had ample bases to reject Dr. Custalow's opinion. Dr. Custalow was not made aware of Smith's extensive history of allergy and respiratory symptoms. The medical records establish that those symptoms began long before 1991, the date she alleges exposures to chemicals in the workplace. Dr. Custalow's medical records also reflect that he was inaccurately told that Smith was in good health until July 1991. Moreover, formaldehyde and trimellitic anhydride, the two chemicals which Dr. Custalow opined Smith had been exposed to at work and which had probably caused her condition, were not detected in her workplace and are commonly found in the general environment.
In addition, Dr. Bond examined Smith, the extensive medical records, and the toxicology reports. Dr. Bond's opinion directly contradicted Dr. Custalow's findings. His opinion provided credible evidence to support the commission's finding that Smith failed to establish by clear and convincing evidence that her condition arose out of and in the course of her employment.
IV.
Smith contends that the commission denied her due process and equal protection of the laws "by [it's] failure to consider whether the sick building syndrome, reactive airways disease, and toxic encephalopathy . . . are occupational diseases within the purview of Chapter 4 of the Virginia Workers' Compensation Act." We disagree. Although Smith's claim was based only on multiple chemical sensitivity, the deputy commissioner specifically found that Smith had "not proven that she sustained multiple chemical sensitivity which can be considered an occupational disease under . . . Code Sections 65.2-400 and 65.2-401, or that her condition, whatever its nature, arose out of or in the course of her employment." The commission affirmed that decision. Moreover, the record sufficiently establishes that MCS is a broad, general designation which includes "sick building syndrome, reactive airway disease and toxic encephalopathy." The commission's decision, therefore, addressed Smith's failure to prove that these conditions were an occupational disease.
For the reasons stated, we affirm the commission's decision.
Affirmed.