Marley Mouldings, Inc. v. Freda W. Rotenberry

• Court: Court of Appeals of Virginia
• Decided: April 23, 1996
• Docket: 0755953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata Argued at Salem, Virginia

MARLEY MOULDINGS, INC. and CONTINENTAL CASUALTY COMPANY MEMORANDUM OPINION * BY v. Record No. 0755-95-3 JUDGE JAMES W. BENTON, JR. APRIL 23, 1996 FREDA W. ROTENBERRY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Ramesh Murthy (Penn, Stuart, Eskridge & Jones, on brief), for appellants.

Ginger Jonas Largen (J. D. Morefield; Morefield, Kendrick, Hess & Largen, P.C., on brief), for appellee.

The employer, Marley Mouldings, Inc., contends that the

commission erred in concluding that Freda W. Rotenberry proved by

clear and convincing evidence that her asthma was a compensable

ordinary disease of life. See Code § 65.2-401. We affirm the

award.

I.

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

to Rotenberry because she prevailed before the commission. R.G.

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

788, 788 (1990). So viewed, the evidence proved that Rotenberry

began working for Marley in 1975. She fed mouldings through a

paint machine and was constantly exposed to paint, paint thinner

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. fumes, and sawdust.

In 1984 Rotenberry began to suffer from allergies and

sinusitis which caused wheezing in the springtime similar to hay

fever. She consulted Dr. James E. McDowell, her family

practitioner, who "treated [her] with some medication at that

time and it seemed to clear up." Rotenberry began experiencing

severe breathing problems in 1985. Dr. McDowell testified that

he first treated her for severe breathing problems in January

1985 and later that year hospitalized her for a chest infection.

On March 15, 1990, Dr. McDowell diagnosed Rotenberry as having

"asthma/precipitated by odor exposure." Dr. McDowell prescribed

several medications for Rotenberry, but when her problems showed

no signs of improvement, he referred her to Dr. Donald Zedalis,

an allergist. Dr. Zedalis initially opined that Rotenberry's symptoms were

"strongly consistent with allergic asthma (grasses), work

exposure, and her husband's heavy cigarette smoking habit," with

her sinusitis causing further problems. In 1993, following

testing and treatment Dr. Zedalis recommended that Rotenberry

leave her job permanently due to her asthma. Dr. Zedalis opined

that "Rotenberry's condition is an outcome of an occupationally-

related disorder."

At the employer's request, Dr. J. Dale Sargent, a

pulmonologist, examined Rotenberry and concluded that

Rotenberry's employment exacerbated her asthma but was not caused

- 2 - by her employment. Dr. Gregory Fino, a pulmonologist, examined

the medical records of the other doctors at the employer's

request and examined occupational health and safety reports. He

concluded that Rotenberry's asthma "is a disease of the general

medical population and it has nothing to do with her workplace."

Dr. Zedalis reviewed Dr. Fino's report and the same

additional information and disagreed with his conclusions. Dr.

Zedalis conceded that none of the chemicals to which Rotenberry

was exposed contained a hypersensitivity agent known to cause

asthma. He noted that "the list of such agents has rapidly

expanded over the recent past, often requiring exhaustive

investigation before it could be added to the list of known

substances that cause occupationally-related asthma." Based upon

extensive testing and his treatments, he concluded that

Rotenberry's asthma was work related and not pre-existing asthma

exacerbated by exposure to chemicals. II.

For an ordinary disease of life to be treated as a

compensable occupational disease, Rotenberry had to prove, by

clear and convincing evidence, to a reasonable degree of medical

certainty, that her asthma arose out of and in the course of her

employment, did not result from causes outside of her employment,

is characteristic of her employment, and was caused by the

conditions peculiar to her employment. Code § 65.2-401. See Teasley v. Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50,

- 3 - 415 S.E.2d 596, 598 (1992). "'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) (quoting Island

Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788

(1988)). The existence of "contrary evidence in the record is of

no consequence if there is credible evidence to support the

commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.

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

The opinions of Doctors Zedalis and McDowell constitute

credible evidence to support the commission's findings. In its

role as fact finder, the commission was entitled to accept the

opinions of Dr. Zedalis and Dr. McDowell and to discount the

opinions of Dr. Sargent and Dr. Fino. "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. Sargent examined Rotenberry on one occasion at

employer's request, and Dr. Fino merely reviewed the record at

employer's request. They were not the attending physicians. In

cases of conflicting medical evidence, "'[t]he general rule is

that when an attending physician is positive in his diagnosis of

a disease, great weight will be given by the courts to his

- 4 - opinion.'" Pilot Freight Carriers, Inc., Inc. v. Reeves, 1 Va.

App. 435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted).

The commission's decision to accept the unqualified opinions of

Dr. Zedalis or Dr. McDowell withstands the employer's challenge.

Their opinions were credible and sufficient to prove clearly and

convincingly that Rotenberry's asthma was occupationally related.

For these reasons, we affirm the commission's decision. Affirmed.

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