Opinion
Record No. 1339-94-4
Decided: February 28, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kenneth D. Bynum; Koonz, McKenney, Johnson DePaolis, on brief), for appellant.
(Steven H. Theisen; Midkiff Hiner, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Elbert R. Turner contends that the Workers' Compensation Commission erred in finding that he failed to prove that (1) he has asbestosis, an occupational disease; and (2) he sustained injurious exposure to asbestos in the course of his employment with Evets Electric, Inc. ("employer"). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
On appellate review, we construe 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). Unless Turner's evidence established as a matter of law that he suffered from asbestosis, the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Dr. R. Paul Fairman, a Fellow of the American College of Chest Physicians and a certified "B" reader, examined Turner on July 27, 1993. On July 29, 1993, Dr. Fairman reported that the chest x-ray he obtained revealed that "[t]he lung parenchyma showed no significant parenchymal opacities consistent with a pneumoconiosis. There was some crowding of the blood vessels as is often seen in individuals who are obese." Dr. Fairman concluded that Turner did not have the clinical criteria which would warrant a diagnosis of asbestosis. He opined that Turner's "exercise intolerance is a function of his weight and deconditioning" and that both the pulmonary functions and changes he noted on the x-rays were the result of "sub pleural fat and consistent with his body habitus." In an August 25, 1993 letter to employer's attorney, Dr. Fairman reported on his review of Turner's 1989 and 1991 chest x-rays. Dr. Fairman concluded that in all of these x-rays "the subcostal density is most compatible with excess fat. There is no definite evidence of asbestosis related abnormality seen in these films."
Dr. Anthony V. Proto, Professor and Chairman of the Radiology Department of the Medical College of Virginia and a certified "B" reader, reviewed Turner's 1989 and 1991 chest x-rays. In his June 30, 1993 report, Dr. Proto concluded that "these three studies . . . demonstrate findings more consistent, in view of the patient's overall body size, with normal extrapleural fat rather than pleural plaques. The lungs are graded within the normal range . . . ."
On June 9, 1993, Dr. Susan Daum, also a certified "B" reader, opined that Turner suffered from asbestosis. In deposition testimony, she opined that Turner's lung condition was the result of asbestosis rather than fat deposits.
"[I]t is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Confronted with conflicting medical opinions from "experts of equal dignity and authority," it was within the province of the commission to decide to accept the opinions of Drs. Fairman and Proto, and to reject the opposite opinion of Dr. Daum. See Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Based upon the commission's acceptance of the opinions of Drs. Fairman and Proto and its rejection of Dr. Daum's opinion, we cannot say that, as a matter of law, Turner's evidence was sufficient to sustain his burden of proving asbestosis. Accordingly, the commission's findings are binding and conclusive upon us.
Because this holding is dispositive of this appeal, we need not address the remaining issues presented by Turner and employer.
For the reasons stated, we affirm the commission's decision.
Affirmed.