Ned N. Cary, Jr. v. Anheuser Busch

• Court: Court of Appeals of Virginia
• Decided: July 8, 1997
• Docket: 0781971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

NED N. CARY, JR.

v. Record No. 0781-97-1 MEMORANDUM OPINION * PER CURIAM ANHEUSER BUSCH JULY 8, 1997 AND CIGNA INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Ned N. Cary, Jr., pro se, on brief).

No brief for appellees.

Ned N. Cary, Jr. (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that he

failed to prove he sustained an occupational disease arising out

of and in the course of his employment with Anheuser Busch

(employer). Upon reviewing the record, opening brief, and

employer's motion to dismiss, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the commission's

decision. Rule 5A:27.

A claimant must prove the existence of an occupational

disease by a preponderance of the evidence. See Virginia Dep't

of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307,

308 (1985). "Whether a disease is causally related to the

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

finding of fact." Island Creek Coal Co. v. Breeding, 6 Va. App. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1, 12, 365 S.E.2d 782, 788 (1988). Unless we can say as a matter

of law that claimant's evidence sustained his burden of proof,

the commission's findings are binding and conclusive upon us.

See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173

S.E.2d 833, 835 (1970).

Claimant began working for employer in 1980. In 1987,

claimant had a conversion experience to Christianity and became

an ordained minister. Thereafter, he refused to sign a consent

form to be drug tested and he refused psychological testing.

Employer terminated claimant from his employment on May 4, 1992.

Before the commission, claimant contended that he was terminated

due to his religious beliefs and that employer considered his

Christianity a disease which required treatment. Thus, claimant

sought compensation for the occupational disease of Christianity.

The commission found that claimant's evidence failed to

establish a compensable occupational disease. An occupational disease is one "arising out of and in the

course of employment." Code § 65.2-400(A). "A disease shall be

deemed to arise out of the employment" when the evidence

establishes six elements. Code § 65.2-400(B). Elements (2) and

(6) require evidence showing "[a] direct causal connection

between the conditions under which work is performed and the

occupational disease" and that the disease "had its origin in a

risk connected with the employment and flowed from that source as

a natural consequence . . . ." Code § 65.2-400(B)(1) and (B)(6).

2 Here, no medical evidence established that claimant suffered

from a disease which was caused by his employment and which had

its origin in a risk connected with claimant's employment as

required by Code § 65.2-400. Consequently, we cannot find as a

matter of law that claimant's evidence sustained his burden of

proving a compensable occupational disease.

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

Affirmed.