Hercules, Inc. and Aqualon Co. v. Allen W. McLean

• Court: Court of Appeals of Virginia
• Decided: May 14, 2002
• Docket: 2747012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Hodges Argued at Richmond, Virginia

HERCULES, INC. AND AQUALON COMPANY MEMORANDUM OPINION* BY v. Record No. 2747-01-2 JUDGE JAMES W. BENTON, JR. MAY 14, 2002 ALLEN W. McLEAN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Gretchen M. Greisler (James G. Muncie, Jr.; Midkiff, Muncie & Ross, P.C., on brief), for appellants.

B. Mayes Marks, Jr. (Marks and Williams, P.C., on brief), for appellee.

The issues raised by this appeal are whether the Workers'

Compensation Commission erred in finding (1) that Allen W.

McLean proved by a preponderance of the evidence he was totally

disabled and (2) that McLean's disability was causally related

to his injury by accident. We affirm the commission's award of

benefits to McLean.

I.

"On appeal, we view the evidence in the light most

favorable to [McLean], the party prevailing before the

commission." Great Eastern Resort Corp. v. Gordon, 31 Va. App.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 608, 610, 525 S.E.2d 55, 56 (2000). So viewed, the evidence

proved McLean worked as a senior lab analyst for Hercules, Inc.,

a chemical manufacturing company, when he experienced an injury

by accident. McLean and the employer signed a memorandum of

agreement, which indicates that on October 26, 1998, McLean

"inhaled an excess amount of nitric-acid fumes causing a

chemical induced asthmatic bronchitis." The commission approved

the memorandum of agreement and awarded McLean temporary partial

disability benefits beginning October 27, 1998 and medical

benefits. In July of 2000 and February of 2001, McLean filed

change-in-condition claims requesting temporary total disability

benefits from July 17, 2000 through September 4, 2000 and

continuing from January 19, 2001.

At the evidentiary hearing, the deputy commissioner recited

various stipulations, including the parties' agreement that

McLean was totally disabled from July 17 through September 4,

subject to the employer's defense that McLean's disability was

not causally related to the October 26, 1998 injury by accident.

In addition to challenging the causal connection, the employer

alleged that McLean was not totally disabled beginning January

19, 2001. Presenting no witnesses, both parties submitted the

case for decision and relied on the medical reports and the

stipulations. Upon this evidence, the deputy commissioner found

that McLean's disability was causally related to the October 26,

1998 injury by accident and that McLean proved temporary total

- 2 - disability from July 17, 2000 through September 4, 2000 and

beginning January 19, 2001 and continuing.

The employer sought review by the commission only on the

issues whether McLean was totally disabled beginning January 19,

2001 and whether the disability was causally related to the

October 26, 1998 injury by accident. Upon its review of the

medical evidence, the commission found that on November 2, 1998,

Dr. Peter N. Ault, a physician at the employer's first aid

station, diagnosed McLean as suffering from occupational

exposure to nitric acid fumes causing asthmatic bronchitis. On

February 24, 2000, Dr. Ault further opined that McLean was

suffering from reactive airway disease resulting from this

exposure. Dr. Ault removed McLean from work on February 24,

2000 and determined on February 28, 2000 that McLean was

"totally incapacitated at this time." A pulmonary function

test, which Dr. Ault ordered in June 2000, indicated that

McLean's data were "suggestive of restrictive lung disease."

Dr. Ault returned McLean to sedentary work with restrictions on

September 5, 2000. In each instance, Dr. Ault opined that

McLean's condition was causally related to the October 26, 1998

injury by accident.

Dr. Alpha A. Fowler, a pulmonary internist, examined McLean

and opined on November 12, 1999, that McLean

continues to manifest problems that are likely downstream from nitric acid exposure one year ago . . . . [I]t is now time for

- 3 - the patient to discontinue his work at the plant and to come out of any situation that would result in fume exposure because of the potential for long-term devastating consequences . . . should exposure continue.

On March 31, 2000, Dr. Fowler opined McLean was "disabled and

unable to work." Dr. Fowler also opined that "[d]ue to the

nonspecific nature of his reactivity to the environment I find

that increased exposure will only result in increasing problems

and likely deteriorating health status."

In March 2000, Dr. Ming S. Chiu, a pulmonary internist,

examined McLean on various occasions and reported that McLean

was not a smoker, that McLean had no prior respiratory symptoms

until the exposure to the chemical on October 26, 1998, that

McLean suffered from reactive airway disease, and that McLean

was "quite symptomatic." Dr. Chiu also noted that McLean's

condition had "retrogressed." In September 2000, Dr. Chiu

reported that McLean's cough was worsening and again noted

"reactive airway disease." In a letter dated January 19, 2001,

Dr. Chiu reports that McLean has been under his care for

reactive airway disease, that McLean has persistent cough and

shortness of breath, and that McLean "is totally disabled from

any type of work."

The commission found that McLean became totally disabled as

of January 19, 2001 and that his condition was causally related

to the October 26, 1998 work incident. This appeal followed.

- 4 - II.

The employer contends "[t]he medical evidence . . . shows

that [McLean] was not totally disabled as of January 19, 2001."

This contention lacks merit.

Our review of the disability issue is governed by familiar principles. Factual findings made by the Commission are "conclusive and binding" and a question raised by conflicting medical opinion is a question of fact. We do not judge the credibility of witnesses or weigh the evidence on appeal. "[I]t is our duty to determine whether credible evidence supports the Commission's finding . . . and, if such evidence exists, to sustain the finding."

Celanese Fibers Co. v. Johnson, 229 Va. 117, 120-21, 326 S.E.2d

687, 690 (1985) (citations omitted).

In its role as fact finder, the commission was entitled to

weigh the medical evidence. Indeed, the principle is long

standing that "[m]edical evidence is not necessarily conclusive,

but is subject to the commission's consideration and weighing."

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 214 (1991). The commission reviewed the medical

evidence and found that both Dr. Fowler and Dr. Chiu opined that

McLean was totally disabled. Dr. Chiu specifically reported on

January 19, 2001, that McLean "has been under [Dr. Chiu's] care"

and "is totally disabled from any type of work." Thus, credible

evidence supports the commission's finding that McLean was

totally disabled at that date and continuing.

- 5 - III.

The employer next contends that McLean's "alleged

disability is not causally related to his industrial accident."

This contention likewise lacks merit.

On our review, we apply the following standards:

The commission's determination of causation is a finding of fact. The factual findings of the commission are conclusive and binding on appeal if supported by credible evidence in the record. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." "This rule applies when an expert's opinion contains internal conflict." "Likewise, the [c]ommission's conclusions upon conflicting inferences, legitimately drawn from proven facts, are equally binding on appeal." "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."

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552

S.E.2d 372, 375 (2001) (citations omitted).

The employer argues that the pulmonary function test proves

McLean's disability was "the result of his obesity or

extraparenchymal restriction." That report contains the

following item:

IMPRESSION: The [test] data is suggestive of restrictive lung disease, flow volume also supports this finding. It seems like the patient has an extraparenchymal cause of restriction. The differential diagnosis

- 6 - includes obesity versus musculoskeletal disorders. I would suggest to correlate clinically.

The report does not indicate that McLean's exposure to the

nitric acid did not damage his lungs. As the deputy

commissioner found, this report does not indicate "a clear

opinion whether [McLean's] disability is caused by the work

accident." The commission found that the pulmonary test results

were merely "suggestive of restrictive lung disease" and found

that the report does not contradict the finding that McLean's

injury was caused by the work incident.

Moreover, even if we view this report, as does the

employer, as establishing a conflict in the medical evidence, "a

finding by the Commission upon conflicting facts as to causal

relationship is conclusive and binding on this Court, absent

fraud, when such determination is supported by competent,

credible evidence." C.D.S. Constr. Services v. Petrock, 218 Va.

1064, 1070, 243 S.E.2d 236, 240 (1978). The commission found

that "[e]ach physician noted [McLean's] work-related exposure to

nitric acid in 1998." The reports of Dr. Chiu and Dr. Fowler

make that diagnosis and clearly support the commission's

finding. Thus, credible evidence in the record establishes that

McLean's exposure to chemicals caused airway disease. See

Russell Stover Candies v. Alexander, 30 Va. App. 812, 826-28,

520 S.E.2d 404, 411-12 (1999) (affirming award to an employee

suffering from reactive airway disease as a result of exposure

- 7 - to bleach). Significantly, the medical reports indicate McLean

"had no prior history of respiratory symptoms until the exposure

to the chemical."

The commission's findings are supported by each of the

physician's findings, including Dr. Ault's reports. The record

establishes that after Dr. Ault received the pulmonary test

report, he reported on August 31, 2000 that McLean had "reactive

airway disease" and that it was due to his "occupational

injury." He made no finding attributing McLean's injury to any

other cause. Indeed, his opinions indicate that when he

returned McLean to sedentary work in September 2000 McLean's

condition was causally related to McLean's "work-related

exposure to nitric acid fumes of October 26, 1998."

We hold, therefore, that credible evidence in the record

supports the commission's award.

Affirmed.

- 8 -