Hudson Venetian Blind Service, Inc.et al. v. Hudson

• Court: Court of Appeals of Virginia
• Decided: May 18, 1999
• Docket: 1611982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

HUDSON VENETIAN BLIND SERVICE, INC. AND PENNSYLVANIA GENERAL INSURANCE COMPANY MEMORANDUM OPINION * v. Record No. 1611-98-2 PER CURIAM MAY 18, 1999 DONALD A. HUDSON

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Bradford C. Jacob; Taylor & Walker, P.C., on brief), for appellants.

(Andrew J. Reinhardt; Kerns, Kastenbaum & Reinhardt, on brief), for appellee.

Hudson Venetian Blind Service, Inc., and its insurer

(hereinafter referred to as “employer”) contend that the Workers’

Compensation Commission erred in holding that Donald A. Hudson

proved (1) that he suffers from a polyneuropathy or a peripheral

neuropathy based upon the opinion of Dr. Robert J. DeLorenzo; (2)

that his condition was caused by exposure to chemicals at work;

(3) that he suffers from a compensable occupational disease rather

than a gradually incurred, noncompensable, cumulative exposure to

chemical solvents; (4) that a June 1, 1995 extender spill incident

caused his condition; and (5) that he was totally disabled since

March 1, 1996, and, therefore, was not obligated to market his

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. residual capacity. 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. See

Rule 5A:27.

I., II. and IV.

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

to the prevailing party below. See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Moreover, “[t]he actual determination of causation is a factual

finding that will not be disturbed on appeal if there is credible

evidence to support the finding.” Ingersoll-Rand Co. v. Musick, 7

Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).

Dr. DeLorenzo, chief neurologist at the Medical College of

Virginia Hospital (“MCV”), a neurology professor, and the Director

of the Neuroscience Research Facility, testified that he talked to

Hudson on several occasions, performed a one and one-half hour

history and complete physical and neurological examination of

Hudson, reviewed Hudson’s MCV medical chart for approximately four

to five hours at various intervals, spent another hour reading

Hudson’s initial evaluations, and another two hours reviewing all

of his laboratory testing. In his de bene esse deposition, Dr.

- 2 - DeLorenzo opined that Hudson suffers from “a peripheral neuropathy

with both sensory and motor components, as well as evidence of

central nervous system damage . . . probably . . . in the spinal

cord . . . called a myelopathy.” Dr. DeLorenzo testified that to

a reasonable degree of medical certainty the damage to Hudson’s

nervous system was caused by his unprotected exposure to paint

solvents and chemicals in the workplace. Dr. DeLorenzo opined

that Hudson’s condition could have been caused by “one or two very

large exposures in the workplace, which it’s my understanding that

that happened . . . or [by] chronic accumulation.” Dr. DeLorenzo

stated that Hudson’s condition was probably due to both causes and

was “[d]efinitely not” due to an idiopathic cause. Dr.

DeLorenzo’s December 13, 1996 letter report was consistent with

the opinions he expressed in his deposition.

As fact finder, the commission was entitled to accept Dr.

DeLorenzo’s opinions and to reject any contrary medical opinions.

“Questions raised by conflicting medical opinions must be decided

by the commission.” Penley v. Island Creek Coal Co., 8 Va. App.

310, 318, 381 S.E.2d 231, 236 (1989). Dr. DeLorenzo’s opinions

provide credible evidence supporting the commission’s finding that

Hudson suffers from a polyneuropathy or peripheral neuropathy

caused by exposure to paint solvents and chemicals in his

workplace. “The fact that there is contrary evidence in the

record is of no consequence if there is credible evidence to

- 3 - support the commission’s finding.” Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

Furthermore, whether Hudson’s condition was caused by a

single exposure or prolonged high exposure to chemical solvents in

the workplace is immaterial. Dr. DeLorenzo stated that Hudson’s

condition was attributable to either situation or both. Based

upon Hudson's testimony and Dr. DeLorenzo’s opinions, the

commission properly concluded that “the particular event on June

1, 1995 produced a definitive change in [Hudson’s] condition, such

that it suddenly and unexpectedly produced the myriad effects in

[Hudson’s] central nervous system that significantly altered his

condition.”

III.

The Supreme Court’s recent decision in A New Leaf, Inc. v.

Webb, 257 Va. 190, 511 S.E.2d 102 (1999), is dispositive of this

issue. In Webb, the Supreme Court held that a florist’s

allergic contact dermatitis was compensable as an occupational

disease because it was caused by a reaction to allergens in

certain flowers encountered in the claimant’s job as a florist,

not by cumulative trauma induced by repetitive motion. See id.

at 192, 511 S.E.2d at 102.

“‘[W]hether a worker has suffered an impairment that

constitutes a compensable disease is a mixed question of law and

fact.’ Thus, the Commission’s finding on that question is not

- 4 - conclusive but is a proper subject for judicial review.” Id. at

196, 511 S.E.2d at 104. In determining whether Hudson’s

condition qualifies as an occupational disease, we must consider

the nature and cause of the impairments. See id. at 197, 511

S.E.2d at 105.

Here, credible medical evidence, including the medical

records and opinions of Dr. DeLorenzo, proved that Hudson’s

polyneuropathy or peripheral neuropathy was caused by the

reaction of his body to unprotected high exposure to paint

solvents and chemicals in the workplace, whether over an

extended period of time or over several large exposures. No

evidence established that Hudson’s condition was caused by

cumulative trauma induced by repetitive motion. Accordingly,

the commission did not err in holding that Hudson’s condition is

a compensable occupational disease within the meaning of the

Workers’ Compensation Act.

V.

The commission held that Hudson proved he had been totally

disabled since March 1, 1996, and, therefore, had no obligation

to market a residual work capacity. In so ruling, the

commission found as follows:

The record establishes that [Hudson] is severely disabled by his neurological problems, such that he is essentially limited to sitting in a chair, and talking on the telephone. Moreover, Dr. [Richard] Waller persuasively testified that he doubts

- 5 - whether [Hudson] can perform such activities under stress, which he defined as “any type of complex intellectual functioning, or maybe interpersonal interactions, I guess outside the context of his family.”

The testimony of Dr. Waller and Dr. DeLorenzo, who opined

that Hudson was totally disabled from work and that his

condition would not improve, constitutes credible evidence

supporting the commission’s findings. Based upon their

testimony, coupled with evidence of Hudson’s age, his

significant neurological deficits and brain impairments, and his

work history, the commission did not err in concluding that

Hudson proved that he had been totally disabled since March 1,

1996, and therefore, was not obligated to market his residual

capacity.

For these reasons, we affirm the commission’s decision.

Affirmed.

- 6 -