Anne Griffin Miller v. County of James City

• Court: Court of Appeals of Virginia
• Decided: May 14, 1996
• Docket: 2627951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

ANNE GRIFFIN MILLER

v. Record No. 2627-95-1 MEMORANDUM OPINION * PER CURIAM COUNTY OF JAMES CITY MAY 14, 1996 AND CITY OF WILLIAMSBURG

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Arnold H. Abrons; Abrons, Fasanaro & Sceviour, on brief), for appellant.

(Robert A. Rapaport; Knight, Dudley, Clarke & Dolph, on brief), for appellee.

Anne Griffin Miller ("claimant") contends that the Workers'

Compensation Commission erred in finding that she failed to prove

that her reactive airways disease was caused by her employment.

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.

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

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. S.E.2d 782, 788 (1988). Unless we can say as a matter of law

that claimant's evidence sustained her burden of proof, 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).

An occupational disease is one "arising out of and in the

course of employment." Code § 65.2-400(A). "A disease shall be

deemed to arise out of the employment" when the evidence

establishes six elements. Code § 65.2-400(B). Elements (1) and

(6) require evidence showing "[a] direct causal connection

between the conditions under which work is performed and the

occupational disease" and that the disease "had its origin in a

risk connected with the employment and flowed from that source as

a natural consequence . . . ." Code § 65.2-400(B)(1) and (B)(6).

The commission found that claimant failed to establish a

compensable occupational disease under the requirements of Code

§ 65.2-400. The record is devoid of any medical opinions to support

claimant's assertion that her employment caused her condition.

At best, Dr. Thomas L. Munzel, claimant's treating pulmonary

specialist, opined that her employment aggravated her reactive

airways disease. A disease that is merely aggravated by the

employment does not establish causation and is not an

occupational disease. Ashland Oil Co. v. Bean, 225 Va. 1, 3-4,

300 S.E.2d 739, 740 (1983).

2 Based upon the absence of any persuasive medical evidence

that claimant's work environment caused her restrictive airways

disease, claimant did not prove as a matter of law a compensable

occupational disease pursuant to the requirements of Code

§ 65.2-400. Thus, the commission did not err in denying her

application based upon a finding that she did not prove that her

condition was caused by her employment or that it had its origins

in a work connected risk. Accordingly, we affirm the commission's decision.

Affirmed.