General Electric and Electric Insurance Company v. Albert King

• Court: Court of Appeals of Virginia
• Decided: October 27, 2020
• Docket: 0683204
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Huff and Senior Judge Frank Argued by videoconference UNPUBLISHED

GENERAL ELECTRIC AND ELECTRIC INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 0683-20-4 JUDGE WILLIAM G. PETTY OCTOBER 27, 2020 ALBERT KING

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Matthew J. Sheptuck (Joseph F. Giordano; Semmes, Bowen & Semmes, on brief), for appellants.

Andrew E. Sassoon (Michele S. Lewane; Injured Workers’ Law Firm, on brief), for appellee.

In this appeal by General Electric and Electric Insurance Company (employer) of a

decision by the Virginia Workers’ Compensation Commission, we find no error in the

Commission’s decision; accordingly, we affirm.

On appeal from a decision of the Commission, we review the evidence in the light most

favorable to the claimant Albert King, the party prevailing below. Snellings v. Stafford Cnty.

Fire & Rescue Dept., 62 Va. App. 568, 570 (2013).

Albert King worked for employer, in its GE Aviation Dowty Propellers division, from

2006 to 2019. King’s job involved cleaning, sanding, and grinding propeller blades. The tools

he used generated loud noise. It is uncontested that King wore the protective equipment

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. provided by employer and that the equipment brought the noise level to within standards

mandated by OSHA. Nevertheless, King’s annual hearing tests showed gradual hearing loss.

King sought compensation for his hearing loss. The Commission heard testimony from

King’s treating physician, who stated that to a reasonable degree of medical certainty King’s

hearing loss was caused by his work for employer. Employer argues the Commission erred by

finding King “met his burden of proving bilateral hearing loss and bilateral tinnitus as ordinary

diseases of life by clear and convincing evidence pursuant to Va. Code § 65.2-401.”

Whether an ordinary disease of life, as defined by Code § 65.2-400, is compensable

involves a mixed question of law and fact, which we review de novo on appeal. Jackson v. Ceres

Marine Terminals, Inc., 64 Va. App. 459, 463 (2015). “Decisions of the Commission as to

questions of fact, if supported by credible evidence, are conclusive and binding on this Court.”

Id. (quoting VFP, Inc. v. Shepherd, 39 Va. App. 289, 292 (2002). “Causation is a factual

determination to be made by the Commission, but the standards required to prove causation and

whether the evidence is sufficient to meet those standards are legal issues which we must

determine.” Id. (quoting Anthony v. Fairfax Cnty. Dep’t of Family Servs., 36 Va. App. 98, 103

(2001)).

The Code provides that hearing loss is an “ordinary disease of life . . . [that] may be

treated as an occupational disease for purposes of” compensation. Code § 65.2-401; see Code

§ 65.2-400. For the hearing loss to be compensable under Code § 65.2-401, a claimant must

prove by “clear and convincing evidence, (not a mere probability), that the [hearing loss]

[1] exists and arose out of and in the course of employment as provided in Code § 65.2-400” and

“did not result from causes outside of the employment” and “[2] . . . is characteristic of the

employment and was caused by conditions peculiar to such employment.” Code § 65.2-400(B)

provides that a disease arises out of the employment “if there is[, inter alia,] . . . [a] direct causal -2- connection between the conditions under which work is performed and the occupational disease;

. . . [and] [i]t can be fairly traced to the employment as the proximate cause . . . .” Tex Tech

Indus., Inc. v. Ellis, 44 Va. App. 497, 503 (2004) (alterations in original).

Here, the Commission found credible the treating physician’s testimony that the medical

evidence established King’s employment as the primary source of his hearing and tinnitus. The

physician further explained why he did not believe the other possible causes posited by employer

were the source of King’s hearing loss. Moreover, contrary to employer’s argument, the fact that

King wore hearing protection that brought the noise below the level established as acceptable by

OSHA does not mean the noise over years of employment was not the source of King’s hearing

loss. We conclude the factual findings made by the Commission constituted clear and

convincing evidence that King’s hearing loss was caused by his employment. Accordingly, we

affirm.

Affirmed.

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