Rossv.James River Corporation

Court of Appeals of VirginiaApr 20, 1993
Record No. 1976-92-2 (Va. Ct. App. Apr. 20, 1993)

Record No. 1976-92-2

April 20, 1993

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

(Gary W. Kendall; Michie, Hamlett, Lowry, Rasmussen Tweel, on brief), for appellant.

(John M. Oakey, Jr.; McGuire, Woods, Battle Boothe, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


PER CURIAM

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.

Raymond N. Ross, Jr. contends that the commission erred in finding that his asthma condition was not a compensable occupational disease.

A claimant must prove the existence of an occupational disease by a preponderance of the evidence. Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). "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). "A question raised by conflicting medical evidence is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986) (citations omitted). Unless we can say as a matter of law that Ross' 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).

Code § 65.2-400 defines an occupational disease as one "arising out of and in the course of employment." Furthermore, the statute provides that "[a] disease shall be deemed to arise out of the employment" when the evidence establishes six elements.Id. Element (3) requires that the disease be "fairly traced to the employment as the proximate cause." Id.

Here, Drs. James A. L. Mathers and Richard M. Hamrick, III, medical specialists in pulmonary diseases, uniformly indicated that Ross' medical condition arose from longstanding asthma which may have been aggravated by his work environment at James River, but did not have its origin in Ross' employment. The medical records indicate that Ross' asthma condition long preceded his employment. In fact, the records indicate that his asthma had become more of a problem in the several years before he began employment with James River. A long-standing ordinary disease of life which is merely aggravated by employment is not compensable under Virginia law. Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d 481, 483 (1988).

Ross argues that Dr. Mathers' opinion should not be accepted as credible evidence because he did not examine Ross, take a history or perform tests. The record indicates, however, that in rendering his opinion, Dr. Mathers reviewed all of the medical records of Drs. Hamrick, Mandel, Vilseck and Bonner with regard to Ross' treatment. It was up to the commission to decide how much weight to give to Dr. Mathers' opinion. Based upon our review of the record, we cannot say that his opinion does not constitute credible evidence.

Moreover, although the opinion of Dr. Lloyd A. Bonner appears to be more favorable to Ross, the commission discounted his opinion because it was inconsistent with the medical diagnoses provided by the pulmonary specialists and because the history given to Dr. Bonner conflicted with Ross' medical records. Again, it was within the commission's province to make such a finding of fact.

Based upon the commission's implicit acceptance of the opinions of Drs. Mathers and Hamrick, and its discounting of the opinion of Dr. Bonner, we cannot say that, as a matter of law, Ross' evidence was sufficient to sustain his burden of proof. Accordingly, the commission's findings are binding and conclusive upon us.

Affirmed.