Opinion
Record No. 1769-93-3
March 22, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Kenneth W. Farrar, on brief), for appellant.
(Gregory P. Cochran; Caskie Frost, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
David Lewis Morse contends that the commission erred in finding that his asthma condition, an ordinary disease of life, is not compensable as an occupational disease.
A claimant must prove the existence of an occupational disease by a preponderance of the evidence. Virginia Dept. of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). Moreover, one seeking to establish that an ordinary disease of life is employment related, and should be treated as an occupational disease, bears the burden of producing clear and convincing evidence in support of that claim. Code § 65.2-401. Claimant does not contest the commission's determination that the ordinary disease of life burden applied to his situation.
"Whether a disease is causally related to the employment and not causally related to other factors is . . . a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988) (citation omitted). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, then the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
For an ordinary disease of life to be treated as an occupational disease, Code § 65.2-401 requires that a claimant must 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; did not result from causes outside of the employment; is characteristic of the employment; and was caused by conditions peculiar to the employment.
Here, in denying compensation to claimant, the commission stated:
The claimant has been seen by four physicians, including pulmonary specialists and allergists, and has undergone extensive testing. Several of the physicians initially suspected that the claimant's work environment was the causative factor. However, further diagnostic studies were not conclusive. None of the physicians related the claimant's asthma to the work environment sufficiently to meet the "clear and convincing" standard of § 65.2-401 and we so find.
The commission's decision is supported by credible evidence, including the medical records and opinions of Drs. Benjamin Brown, Narinder S. Arora, Susan M. Pollart, and Laura Welch. In Dr. Brown's October 7, 1991 office note, she characterized claimant's condition, "multiple chemical allergy syndrome," as being "a controversial" one and indicated that he was not certain whether it was "psychological or physical" in nature. Dr. Arora, an allergist, diagnosed claimant as suffering from hyperactive airway disease. He noted that claimant had chronically abused cigarettes for the past fourteen years and that he suffered from chronic bronchitis possibly associated with that use. Dr. Pollart, another allergy specialist, indicated in August 1991 that claimant's pulmonary function studies were normal for a man his age with his history of tobacco abuse. She found no objective data to explain the alleged episodes he was having at work. In her November 18, 1992 report, Dr. Welch indicated that claimant's condition is a psychological reaction rather than an allergic sensitivity.
Based upon this medical record, the commission's finding that claimant's evidence did not establish that his condition was caused by his employment is supported by credible evidence. Accordingly, we affirm the commission's decision.
Affirmed.