Dept. of Health/Commonwealth v. Joanne Butler Keene

• Court: Court of Appeals of Virginia
• Decided: January 7, 1997
• Docket: 1732961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

DEPARTMENT OF HEALTH/ COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * v. Record No. 1732-96-1 PER CURIAM JANUARY 7, 1997 JOANNE BUTLER KEENE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(James S. Gilmore, III, Attorney General; Gregory E. Lucyk, Senior Assistant Attorney General; Lee Melchor Turlington, Assistant Attorney General, on brief), for appellant. (Jonathan A. Smith-George; Patten, Wornom & Watkins, on brief), for appellee.

Virginia Department of Health/Commonwealth of Virginia

("employer") contends that the Workers' Compensation Commission

("commission") erred in (1) finding that Joanne B. Keene

("claimant") proved she was injuriously exposed to asbestos while

working as a nurse epidemiologist for employer in the James

Madison Building; (2) finding that claimant's mesothelioma

constituted a compensable occupational disease or ordinary

disease of life as defined by Code §§ 65.2-400 and 65.2-401,

respectively; and (3) admitting into evidence certain documents

related to asbestos contained in the James Madison Building.

Upon reviewing the record and the briefs of the parties, we

conclude that this appeal is without merit. Accordingly, we

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. summarily affirm the commission's decision. Rule 5A:27.

I. and II.

On appeal, the commission's findings must be viewed in the

light most favorable to the prevailing party below. R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). "'Whether a disease is causally related to the

employment and not causally related to other factors is . . . a

finding of fact.' When there is credible evidence to support it,

such a finding of fact is 'conclusive and binding' on this

Court." Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78,

412 S.E.2d 205, 208 (1991) (citation omitted). "In determining

whether credible evidence exists, the appellate court does not

retry the facts, reweigh the preponderance of the evidence, or

make its own determination of the credibility of the witnesses."

Wagner Enters, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).

Code § 65.2-400 defines an occupational disease as one

"arising out of and in the course of employment." The statute

provides that "[a] disease shall be deemed to arise out of the

employment" when the evidence establishes six elements. Element

(1) requires that there be "[a] direct causal connection between

the conditions under which work is performed and the occupational

disease." Element (3) requires that the disease "can be fairly

traced to the employment as the proximate cause." Employer

contends that the commission erred in finding that claimant's

2 evidence proved the requisite causal connection between her

mesothelioma and her employment. 1

Claimant's testimony regarding the white dust she frequently

encountered in her work environment, the testimony and opinions

of Dr. Joseph Guth, an industrial hygienist, the opinions of

claimant's physicians, Drs. Legier and Schepers, and the

documents reflecting that friable asbestos was located above the

acoustical ceiling tiles on every floor of the James Madison

Building and in the building's air handling system, constitute

ample credible evidence to support the commission's finding that

claimant acquired mesothelioma as a direct result of her exposure

to asbestos during her thirteen years of working for employer in

the James Madison Building. Because the commission's factual

findings are supported by credible evidence, they are binding and

conclusive upon this Court on appeal. Accordingly, we cannot say

as a matter of law that the commission erred in finding that

claimant proved she sustained a compensable occupational disease

pursuant to Code § 65.2-400. 1 The commission did not err in treating claimant's mesothelioma as a compensable occupational disease in accordance with the six requirements of Code § 65.2-400 rather than as an ordinary disease of life pursuant to Code § 65.2-401. If a claimant's occupational disease resulted from substantial exposure outside of the employment, the claimant must meet the more rigorous standard of proof contained in Code § 65.2-401. Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 38-39, 422 S.E.2d 165, 170 (1992). Here, credible evidence supports the commission's findings that claimant encountered no substantial exposure to the causes of mesothelioma outside of her employment. There was no evidence that claimant was exposed to asbestos outside of her employment which might have led to her disease.

3 III.

"[R]igid or technical rules of pleading, evidence, or

practice in the conduct of hearings shall not apply so long as

the procedures adopted protect the substantial rights of the

parties." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339

S.E.2d 204, 207 (1986). See also Rule 2.2, Rules of the Virginia

Workers' Compensation Commission. The commission is entitled to

accept hearsay evidence without corroboration. Franklin Mortgage Corp. v. Walker, 5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987),

aff'd on reh'g en banc, 6 Va. App. 108, 367 S.E.2d 191 (1988).

In light of the rules according the commission wide

discretion in determining the evidence it will receive and

consider, we cannot say that the commission abused its discretion

in allowing the documents, some of which were employer's own

records, into evidence. These documents, which related largely

to the removal of asbestos from the James Madison Building, were

relevant and material to the issues of exposure and causation.

Furthermore, we find nothing to indicate that the commission

violated employer's due process rights. The documents admitted

into evidence were either prepared by the Commonwealth's

employees or were studies of the James Madison Building that were 2 commissioned or requested by employer.

2 We note that claimant's exhibits E-1 and E-14 were not admitted into evidence or considered by the deputy commissioner. Therefore, we find no merit in employer's argument with respect to these two documents.

4 For the reasons stated, we affirm the commission's decision.

Affirmed.