Record No. 0807-92-2Court of Appeals of Virginia.
November 17, 1992
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION.
(Gary W. Kendall; Michie, Hamlett, Lowry, Rasmussen Tweel, on brief), for appellant.
(Steven H. Theisen; Midkiff Hiner, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
MEMORANDUM OPINION[*]
PER CURIAM
Upon reviewing the record and the briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers’ Compensation Commission. Rule 5A:27.
John G. Hash contends that the commission erred in finding (1) that his claim was untimely filed and barred by the statute of limitations; and (2) that he failed to prove that his medical condition was causally related to his employment.
The full commission did not address the limitations issue, but based its decision to deny the application on the causal connection question. Therefore, we first address that matter.
The record reveals that Hash failed to meet his burden of proving causation. A claimant must prove the existence of an
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occupational disease by a preponderance of the evidence.Virginia Dep’t of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). “[W]hether 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). “[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 Hash’s evidence was sufficient to sustain his burden of proof, then the commission’s findings are binding and conclusive upon us. Tomko v. Michael’sPlastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
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 (3) requires that the disease be “fairly traced to the employment as the proximate cause.” Id.
Dr. Rahmat M. Seif diagnosed Hash’s condition as Folliculitis Decalvans. Hash relied upon a statement made by Dr. Seif on an insurance claim form that Hash’s scalp condition was “probably” caused by the chemicals used in his work. There is no further explanation from Dr. Seif in the record as to the basis for this statement, nor are his qualifications or specialty apparent from the record. Hash offered no other evidence to meet
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his burden of showing that his condition was related to his employment.
Hash produced no evidence to identify when he was last injuriously exposed nor to identify which of the various chemicals caused his condition. Furthermore, the record reflects that none of Hash’s co-workers developed the same condition as that from which he suffers.
On the other hand, the record does contain evidence from three board-certified dermatologists, Drs. Gary P. Gross, Francis H. McMullan and Thomas W. Murrell, who examined Hash and diagnosed his condition as Perifolliculitis Capitis Abscendens et Suffodiens (dissecting cellulitis), a disease common in black males and frequently associated with Acne Vulgaris and Acne Keloid. These physicians did not relate Hash’s condition to any occupational exposure. Drs. McMullan and Murrell produced medical literature in support of their opinions.
In light of the lack of evidence from Dr. Seif to support his cursory conclusion as to causation, the commission was entitled to give more weight to the opinions of Drs. Gross, McMullan and Murrell who examined Hash and concluded that his condition was not causally related to his employment.
Based upon the commission’s proper acceptance of the opinions of Drs. Gross, McMullan and Murrell, and its discounting of the opinion of Dr. Seif, we cannot say that, as a matter of law, Hash’s evidence was sufficient to sustain his burden of proof. Accordingly, the commission’s findings are binding and
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conclusive upon us.
In this light, we need not address the limitations issue presented on appeal. For the reasons stated, we affirm the commission’s decision.
Affirmed.
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