Tidewater Physicians Multispecialty, etc v. Harris

• Court: Court of Appeals of Virginia
• Decided: May 30, 2000
• Docket: 2207991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bray and Bumgardner Argued at Chesapeake, Virginia

TIDEWATER PHYSICIANS MULTISPECIALTY GROUP AND HARTFORD CASUALTY INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 2207-99-1 JUDGE SAM W. COLEMAN III MAY 30, 2000 MAE FRANCIS HARRIS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

F. Nash Bilisoly (Kelly O. Stokes; Vandeventer Black LLP, on briefs), for appellants.

Byron A. Adams for appellee.

Tidewater Physicians Multispecialty Group (employer)

appeals the Workers' Compensation Commission's decision awarding

Mae Francis Harris temporary total disability benefits from

February 11, 1998, and continuing. The employer argues that the

commission erred in finding that Harris proved by clear and

convincing evidence that she suffers from a continuing

disability causally related to her employment and erred in

finding that she has adequately marketed her residual work

capacity. We disagree and affirm the commission's decision.

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

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

to Harris, the party prevailing before the commission. See 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 Harris

worked as an x-ray technician intermittently for twenty years

and that she had worked for Tidewater Physicians Multispecialty

Group since 1990. In November 1995, the employer installed a

new, larger, faster x-ray film processor which did not have a

cover for the film feed. Because the new machine did not have a

cover, Harris was required to remain in the processing room

while the film was being developed in order not to overexpose

the film. As a result, Harris had longer exposure to fumes from

the chemicals used in the processor and was exposed to chemicals

not used with the other film processor. The film processing

room was poorly ventilated and would become very warm while the

machine was operating.

Within a few months of working with the new machine, Harris

began experiencing a cough, a burning sensation in her throat,

and wheezing each time she was exposed to the new x-ray

processing machine. Harris also suffered from earaches and

respiratory problems, which she attributed to the exposure to

the chemicals used in the new film processor. She testified

- 2 - that she had not experienced coughing, wheezing, or allergy

symptoms before working with the new film processor.

Harris was examined by Dr. Chester L. Fisher on May 6,

1996. In an office note, Dr. Fisher stated that, after her

initial visit on May 2, Harris' symptoms improved with

medication and while she was absent from work. Dr. Fisher

reported that Harris suffers from irritative upper respiratory

syndrome or "occupational" rhinitis and that she had a "total

disability" from her work.

On May 17, 1996, Harris was examined by Dr. L.W. Moore,

Jr., a pulmonary specialist, who opined that Harris' "cough,

pharyngeal irritation, and hoarseness [were] most likely

associated with exposure to chemicals, used in the x-ray film

development." Dr. Moore noted that Harris' symptoms would

improve on weekends and while she was away from the workplace.

Dr. Moore recommended that Harris not work around the film

processing chemicals.

In October 1996, Harris was examined by Dr. Geoffrey W.

Bacon, an otolaryngologist. Dr. Bacon noted that Harris

complained of headaches, cough, and hoarseness that she

attributed to working with chemicals associated with the x-ray

processing machine. In an office note dated October 8, 1996,

Dr. Bacon diagnosed Harris with allergic rhinitis and chemical

sensitivities and instructed her to avoid significant chemical

- 3 - exposure. He also noted that she exhibited a wide range of

moderate to severe sensitivities to pollen, animals, feathers,

several molds, dust mites, and cockroaches. She undergoes

allergy immunotherapy on a regular basis which is expected to

continue for her lifetime. Dr. Bacon also recommended "strict

environmental controls related to chemicals." Dr. Bacon opined

that Harris' "general allergic sensitivities should not impair

her ability to work" and that "her allergic sensitivities are

essentially a permanent condition." Dr. Bacon further stated

that the "primary treatment for [Harris'] chemical sensitivities

would be avoidance," and he referred Harris to a pulmonologist.

Harris filed an application for benefits alleging an

occupational disease with a communication date of May 6, 1996.

The commission found that Harris suffered from a compensable

occupational disease which was causally related to her work as

an x-ray technician, specifically her exposure to the film

processing chemicals. The commission found that Harris was no

longer totally disabled after May 17, 1996 and that she had

failed to market her residual partial work capacity. Thus, the

commission awarded Harris temporary total disability benefits up

until it was determined that she had recovered from her allergic

reaction and found that she was not entitled to partial

disability benefits because she failed to market her residual

capacity. That decision became final and was not appealed. As

- 4 - to future benefits for any period of disability, the commission

expressly stated that "we do not decide whether claimant may be

entitled to future benefits" and ruled that the deputy

commissioner could not foreclose a claim for future benefits as

he had attempted to do.

Harris subsequently filed a change in condition application

in May 1998, claiming temporary total disability benefits

beginning February 11, 1998. The commission awarded benefits,

finding that Harris had adequately marketed her residual

capacity, that she was temporarily totally disabled from

February 11, 1998, and that the disability was causally related

to the industrial disease.

ANALYSIS

A. Continuing Disability

The employer contends Harris has failed to prove that her

current condition or "chemical sensitivity" is causally related

to the work environment or her industrial disease. The employer

argues that Harris has not proven what her "chemical

sensitivities" are and how they developed. The employer points

out that many of the allergens to which the claimant is

sensitive and which account for her current condition are

unrelated to the chemicals in the workplace. Therefore, the

employer asserts that Harris has failed to show any correlation

between her condition and the compensable industrial disease.

- 5 - "In an application for review of an award on the ground of

change in condition, the burden is on the party alleging such

change to prove [her] allegations by a preponderance of the

evidence." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 438-39, 339 S.E.2d 570, 572 (1986) (citation omitted). We

accept the commission's factual findings when they are supported

by credible evidence. See James v. Capitol Steel Constr. Co.,

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

In the April 14, 1998 decision, the commission found that

Harris suffered from a compensable occupational disease in that

she had developed an allergic reaction to the chemicals in her

workplace. The employer did not appeal that decision.

Accordingly, any further consideration of whether Harris'

original occupational disease is causally related to her

employment is barred by res judicata. See K & L Trucking Co.,

v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)

(finding that the doctrine of res judicata is applicable to

decisions of deputy commissioners and the full commission).

Thus, the issue now on appeal is whether the evidence proves

that Harris' current disability and allergic reactions are

causally related to the industrial disease.

The commission expressly declined to decide in the former

proceeding whether Harris may be entitled to future benefits

based on a claim that she has become "sensitized" to exposure to

- 6 - chemicals in the pre-injury work environment. In its August

1999 decision, the commission found that Harris is partially

disabled and her current disability is causally related to her

pre-injury work environment. "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. 1, 12, 365 S.E.2d 782, 788 (1988) (citation

omitted).

Here, the medical evidence established that within a few

months of working with the new x-ray processing machine, Harris

began experiencing respiratory problems, including coughing,

wheezing, and sore throat. Harris denied having experienced any

respiratory problems or allergic reactions prior to the increase

in chemical exposure caused by the new x-ray machine. Harris

testified that, after her chemical exposure, she has sensitivity

to and is adversely affected by car exhaust, cigarette smoke,

bleach, household cleaning products, beauty shop chemicals, and

perfumes. She has been tested for sensitivity to several

environmental allergens and has been found to be allergic to dust,

trees, mold, and animal dander. Harris is currently undergoing

allergy immunotherapy, which she expects to continue her entire

life. Harris' treating physician has opined that she "has a known

history of chemical sensitivities" and that she "should continue

to avoid any significant chemical exposures, either at any place

- 7 - of employment or in her personal life." The commission found that

the chemical sensitivity and her current sensitivity to other

allergens in the environment are the same sensitivity that she

developed due to the exposure to chemicals in the workplace. We

find that the commission's finding that Harris' chemical

sensitivity is causally related to her exposure to the x-ray

chemicals is supported by credible evidence.

We further find that the commission's finding that Harris

is partially disabled because she has become "sensitized" as a

result of her exposure to the chemicals in her pre-injury work

is supported by credible evidence.

In awarding compensation, the commission found that:

[Harris] continues to be partially disabled as a result of her compensable occupational disease. Because of this continuing partial incapacity, she cannot perform her pre-injury work as an x-ray technician since that work would require her to be exposed to chemicals that her physicians have concluded she is sensitive to.

In concluding that Harris has not recovered from her

disability and, therefore, has not obtained her pre-injury

status, the commission relied on its holdings in Blevins v.

Smyth County Vocational School, VWC File No. 185-57-17 (July 1,

1998), and Pruett v. J & R Electric Contractor, Inc., VWC File

No. 160-30-44 (Nov. 30, 1993). In Blevins, the claimant

suffered from hypersensitivity pneumonitis. The claimant's

treating physician opined that the claimant was "not disabled

- 8 - and has the capacity to do any other job in which such exposure

would not be required." The physician further stated that the

claimant "has been suffering from recurrent bouts of

hypersensitivity pneumonitis related to exposure to work place

allergens to which he has been sensitized. With removal of that

exposure his hypersensitivity has resolved." The commission

found, based on the physician's report, that the claimant was

partially disabled.

In Pruett, the claimant was an electric motor winder. In

that capacity, the claimant frequently was exposed to fumes from

soldering and welding, dipping the motors into a vat of epoxy or

hot varnish, and cleaning the housing. The claimant began to

experience respiratory problems and was diagnosed with

industrial asthma. His treating physician opined that his

condition was caused by exposure to fumes in the workplace. In

finding that the claimant was disabled, the commission noted

that the claimant's treating physicians opined that the claimant

could not return to his pre-injury work because "he has become

sensitized to chemicals to which he is exposed in that

employment. Therefore, he has not reached his pre-injury

employment status inasmuch as he was not sensitized before he

became disabled." We find the commission's rationale in Blevins

and Pruett sound and persuasive.

- 9 - Here, in an office note dated May 11, 1998, Dr. Bacon

stated that Harris should "continue to avoid any significant

chemical exposures, either any place of employment or in her

personal life." Harris testified and the record supports a

finding that she continues to experience sensitivity to

allergens that are present in the workplace. Harris currently

undergoes immunotherapy to reduce her sensitivity to allergens.

Accordingly, we find that credible evidence supports a finding

that Harris is currently partially disabled in that she

continues to suffer from symptoms related to the allergic

chemical reaction and is unable to perform her pre-injury work.

B. Marketing Residual Capacity

The employer argues that the commission erred in finding

that Harris reasonably marketed her residual work capacity. The

employer argues that, even though Harris has sent resumes to

many potential employers, she has unduly limited her job search

because of her status as a full-time student and effectively

removed herself from the work force.

A partially disabled employee is required to make

reasonable efforts to market his or her residual wage earning

capacity in order to receive continued benefits. See National

Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33

(1989). "In determining whether a claimant has made a

reasonable effort to market his remaining work capacity, we view

- 10 - the evidence in the light most favorable to . . . the prevailing

party before the commission." Id. at 270, 380 S.E.2d at 33.

"What constitutes a reasonable marketing effort depends on the

facts and circumstances of each case." Greif Companies

(GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318

(1993).

At the hearing, the employer proffered the testimony of

Barbara K. Byers, a Certified Rehabilitation Counselor, who

testified that with Harris' background and training, she is

employable in several entry-level positions in the medical

field. Byers testified that Harris is presently qualified to

work as a medical billing specialist without additional

training. Byers noted that an impediment to Harris finding

suitable employment, however, is her inability to work Monday,

Wednesday, and Friday mornings because of her full-time class

schedule.

We find that the commission did not err in determining

Harris adequately marketed her residual work capacity. The

commission found that Harris contacted, on average, at least two

employers per week. She actively searched computer databases

and newspaper classified advertisements. Although the

rehabilitation counselor testified that Harris' class schedule

was an obstacle in obtaining employment, Harris testified that,

if she found suitable employment that conflicted with her class

- 11 - schedule, she would withdraw from her classes. We find the

evidence sufficient to support the commission's finding that

Harris made a reasonable effort to market her residual capacity.

Accordingly, we affirm the commission's decision.

Affirmed.

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