Record No. 2193-92-1Court of Appeals of Virginia.
May 11, 1993
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION.
(Linda Joy Bracey, pro se, on brief).
(Shelia C. Riddick, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
MEMORANDUM OPINION[*]
PER CURIAM
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers’ Compensation Commission. Rule 5A:27.
Linda Joy Bracey contends that the commission erred in (1) finding that her condition of chronic venous insufficiency is an ordinary disease of life that it is not compensable as an occupational disease; (2) accepting the testimony and opinion of Dr. Dilip K. Sarkar; and (3) not reopening her case for hearing and presentation of evidence. She also contends that this Court should address her claims of mutual mistake and fraud.
I.
A claimant must prove the existence of an occupational disease by a preponderance of the evidence. Virginia Dept. of StatePolice v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). Moreover, one seeking to establish that an ordinary
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disease of life is employment-related, and should be treated as an occupational disease, bears the burden of producing clear and convincing evidence in support of that claim. Code §65.2-401. Bracey does not contest the commission’s determination that the ordinary disease of life burden applied to her situation.
“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). Additionally, “[a] question raised by conflicting medical evidence is a question of fact.” Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986) (citations omitted). Unless we can say as a matter of law that Bracey’s evidence was sufficient to sustain her burden of proof, then the commission’s findings are binding and conclusive upon us. Tomko v. Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Code § 65.2-401 requires that for an ordinary disease of life to be treated as an occupational disease, a claimant must establish, by clear and convincing evidence, to a reasonable degree of medical certainty, that it arose out of and in the course of employment, as provided in Code § 65.2-400, and did not result from causes outside of the employment. Code §65.2-400 defines an occupational disease as one “arising out of and in the course of employment.” Furthermore, the statute provides that “[a] disease shall be deemed to arise out of the employment” when the evidence establishes six elements.Id. Element (6) requires
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that the disease have “had its origin in a risk connected with the employment and flowed from that source as a natural consequence. . . . ”
Here, Dr. Sarkar, a general and vascular surgeon, opined that the primary cause of Bracey’s bilateral chronic venous insufficiency is damage of the valves in the venous system, a sequela of deep vein thrombosis. Dr. Sarkar stated that Bracey’s condition did not have its origin in her employment, but that standing without protective support stockings may have made her condition worse. Dr. Sarkar’s testimony and reports provide sufficient credible evidence to support the commission’s finding, and thus, that finding is binding and conclusive upon us. As noted by the commission, unless the origin of the disease can be traced to the employment as its proximate cause, aggravation of the disease is not compensable as an occupational disease. See Ashland Oil Co. v. Bean, 225 Va. 1, 300 S.E.2d 739
(1983).
II.
The commission accepted the opinion of Dr. Sarkar and rejected the opinion of Dr. Whalen with regard to causation. Dr. Sarkar’s opinion constitutes credible evidence to support the commission’s finding.
The parties were properly granted leave to take the deposition of Dr. Sarkar, and all parties were represented at that deposition. Dr. Sarkar was thoroughly and adequately cross-examined by Bracey’s counsel at the deposition. As allowed by statute, the employer was properly granted its request to have an
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independent medical examination of Bracey performed. See Code §65.2-607. Appellee correctly points out that a medical release was not necessary because Bracey was claiming compensation.Id. Moreover, Code § 65.2-604 required Dr. Sarkar to, upon request, furnish a copy of his medical report to the insurer.
III.
Bracey states in her opening brief that her case should be reopened and consolidated with VWC Claim No. 132-66-50, which should also be reopened. She states that she wants to show that her injury was internal as well as external. Not only has Bracey failed to detail the exact nature of the new evidence she wishes to have considered, she has failed to articulate a basis which would support a reopening of either claim. In this instance, she was represented by counsel at the hearing stage. Counsel had an opportunity to examine and cross-examine both physicians whose opinions the commission reviewed in making its finding. Accordingly, we discern no basis for granting Bracey’s request to reopen her case(s).
IV.
Finally, Bracey asserts that this court should address her claims of mutual mistake and fraud. Bracey’s claim of mutual mistake relates to the employer paying her for six years of teaching experience when she had nine years of experience. This issue is not one which is governed by the Workers’ Compensation Act. Thus, we do not have jurisdiction to address it.
With respect to her claim of fraud, Bracey states that she
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was told she was ineligible for workers’ compensation benefits. This issue was not raised before the commission. Secondly, Bracey has failed to articulate how the alleged fraud had any bearing upon or relation to the commission’s decision to deny her benefits.
For the reasons stated, we affirm the commission’s decision.
Affirmed.
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