Ross, France & Ratliff v. John E. Blevins ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
ROSS, FRANCE & RATLIFF, LTD., ETC. AND
MONTGOMERY MUTUAL INSURANCE
v. Record No. 1054-00-4
JOHN EDWARD BLEVINS MEMORANDUM OPINION*
PER CURIAM
JOHN EDWARD BLEVINS OCTOBER 24, 2000
v. Record No. 1069-00-4
ROSS, FRANCE & RATLIFF, LTD., ETC. AND
MONTGOMERY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lynn McHale Fitzpatrick; James Richard Ryan,
Jr.; Jimese Pendergraft Sherrill; Siciliano,
Ellis, Dyer & Boccarosse, on briefs), for
Ross, France & Ratliff, Ltd., Etc. and
Montgomery Mutual Insurance Company.
(John Edward Blevins, pro se, on briefs).
Ross, France & Ratliff and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that John Edward
Blevins (claimant) proved that he suffers from Lyme disease and
that his disease constituted a compensable occupational disease
pursuant to Code § 65.2-401. On cross-appeal, claimant contends
that the commission erred in failing to award him temporary
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
total disability benefits from September 7, 1997 through
September 19, 1997. Upon reviewing the record and the briefs of
the parties, we conclude that employer's appeal is without
merit. Accordingly, we summarily affirm the commission's
decision with respect to the issue raised by employer. See Rule
5A:27. In addition, we conclude that claimant's appeal is
procedurally barred, and therefore, we dismiss his appeal.
I. Occupational Disease: (Record No. 1054-00-4)
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"'Whether a disease is causally related to the employment and
not causally related to other factors is . . . a finding of
fact.'" Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78,
412 S.E.2d 205, 208 (1991) (citation omitted). When credible
evidence supports a finding of fact, it is conclusive and
binding on this Court. See id. at 378, 412 S.E.2d at 208.
"'The fact that contrary evidence may be in the record is of no
consequence if there is credible evidence to support the
Commission's findings.'" Chanin v. Eastern Virginia Med. Sch.,
20 Va. App. 587, 590, 459 S.E.2d 523, 524 (1995) (citation
omitted).
In order to prove a compensable ordinary disease of life
under Code § 65.2-401, the claimant must establish "by clear and
convincing evidence . . . that the disease exists and arose out
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of and in the course of employment as provided in § 65.2-400
. . . and did not result from causes outside of the employment
. . . and is characteristic of the employment and was caused by
conditions peculiar to such employment."
"Clear and convincing evidence has been
defined as 'that measure or degree of proof
which will produce in the mind of the trier
of facts a firm belief or conviction as to
the allegations sought to be established.
It is intermediate, being more than a mere
preponderance, but not to the extent of such
certainty as is required beyond a reasonable
doubt as in criminal cases. It does not
mean clear and unequivocal.'"
National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507
S.E.2d 667, 669 (1998) (citation omitted), aff'd, 259 Va. 271,
526 S.E.2d 266 (2000).
In ruling that claimant met his burden of proving a
compensable occupational disease under Code § 65.2-401, the
commission found as follows:
[W]e note the claimant's testimony of
exposure to deer ticks while working at the
Quantico site. He has testified to not only
profuse presence of such ticks, but to
actually being bitten. His testimony is
supported by that of Mr. [David] Worst, Mr.
[James] Sheehan, and Mr. [Larry] Ratliff.
We have no evidence of the claimant's actual
exposure to such conditions outside his
employment. His wife testified that she has
not observed deer ticks at either their
residence or at the claimant's mother's
home.
While the claimant's initial medical
presentation was somewhat confused by his
earlier LGV [lymphogranuloma venereum],
there has been an unequivocal diagnosis of
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Lyme disease by Dr. [Richard V.] Spera, Dr.
[Richard K.] Sall, and Dr. [Marsha D.] Soni.
Dr. Spera found the meningitis was secondary
to burgdorfera, the causative agent of Lyme
disease, and that this was the result of an
exposure between February and April 1997.
He also noted that the claimant's work as a
field surveyor put him at risk, for this
condition. Because a rash may occur in a
location such as a person's scalp, where it
would be obscured by his hair, the failure
of this to be noted is not significant. Dr.
Sall also found that it was "overwhelmingly
likely" that the claimant's medical problems
were secondary to Lyme disease. His
symptoms were a continuation of an infection
that likely occurred in 1997.
The commission's factual findings are supported by credible
evidence, including the witnesses' testimony and the medical
records of Drs. Spera, Sall, and Soni. The commission, as fact
finder, was entitled to weigh the medical evidence and to accept
the opinions of Drs. Spera, Sall, and Soni and reject the
contrary opinion of Dr. Schwartz, who reviewed the medical
evidence upon employer's request, but never examined claimant.
Based upon the witnesses' testimony and the opinions of
claimant's treating physicians, the commission, as fact finder,
could conclude that claimant proved clearly and convincingly
that he suffers from Lyme disease and that his disease
constituted a compensable occupational disease under Code
§ 65.2-401. Accordingly, we affirm the commission's decision.
II. Disability: (Record No. 1069-00-4)
Code § 65.2-706(A) provides that "[n]o appeal shall be
taken from the decision of one Commissioner until a review of
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the case has been had before the full Commission as provided in
§ 65.2-705, and an award entered by it."
Claimant did not request review of the deputy
commissioner's decision awarding disability benefits for the
period from August 29, 1997 through September 6, 1997.
Accordingly, claimant's appeal is procedurally barred, and
therefore, we dismiss his appeal.
Record No. 1054-00-4, Affirmed.
Record No. 1069-00-4, Dismissed.
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