Ronald R. Tolbert, Jr. v. Electrolux Corp. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RONALD R. TOLBERT, JR.
v. Record No. 1233-95-3 MEMORANDUM OPINION *
PER CURIAM
ELECTROLUX CORPORATION OCTOBER 10, 1995
AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ronald R. Tolbert, Jr., pro se, on briefs).
(Ramesh Murthy; Penn, Stuart, Eskridge & Jones,
on brief), for appellees.
Ronald R. Tolbert, Jr. contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that his allergic rhinitis and sinusitis were occupational
diseases caused by his employment. Pursuant to Rule 5A:21(b),
Electrolux Corporation ("employer") raises the additional
question of whether the commission erred in finding that
Tolbert's application was not barred by the applicable statute of
limitations. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
I. Background
For ten years, Tolbert has worked as a molding machine
operator in employer's manufacturing plant. In this job, he
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
operates a machine which produces vacuum cleaner parts. Tolbert
testified that, in the fall of 1991, he began experiencing nasal
stuffiness at work. He testified that his symptoms increased
during the course of his work shift. Tolbert alleged that these
problems were caused by his exposure to filtered air at work. He
also testified that over a period of months his symptoms
worsened, and he developed respiratory problems. He also began
to experience dizziness, elevated blood pressure, and chest
tightness. Tolbert, who is thirty-six years old, testified that
he smoked a pack of cigarettes per day for eighteen to twenty
years. Currently, he smokes a half a pack per day.
In March 1992, Tolbert sought medical treatment from Dr.
Douglas Pote. Dr. Pote diagnosed hypertension, migraines, and
dizziness. After Tolbert was given an MRI, Dr. Pote diagnosed
sinusitis and dizziness. Dr. Pote prescribed a course of
antibiotics and reported that Tolbert's sinuses had returned to
normal on June 15, 1992. Dr. Pote's medical records do not
indicate that Tolbert reported that his work environment was
causing his symptoms; his records do not indicate any comment
from Dr. Pote on causation.
On June 18, 1992, Tolbert sought medical treatment from Dr.
Carol Dewey, a family practitioner. At that time, he complained
of migraines, dizziness, increased heart rate, and chest pain; he
also told Dr. Dewey that heat and smoke triggered respiratory
problems. Tolbert also mentioned to Dr. Dewey that his symptoms
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increased when he was in his mother's house and in air
conditioned stores. Dr. Dewey diagnosed sinusitis, allergic
rhinitis, and vertigo.
Dr. Dewey referred Tolbert to Dr. R. Alan Davis, an ear,
nose, and throat specialist. Dr. Davis performed an audiogram
and an ENG, both of which were normal. Finding no abnormality in
Tolbert's sinuses or eustachian tubes, Dr. Davis referred him
back to Dr. Dewey and recommended that Tolbert undergo
psychological therapy and allergy testing. Dr. Davis noted that
Tolbert believed his allergy symptoms were related to exposure to
air conditioning at work; Dr. Davis did not render an opinion on
causation.
In the fall of 1992, Dr. W. Jan Kazmier performed allergy
tests on Tolbert which revealed that he is allergic to mold
spores. Dr. Kazmier informed Dr. Dewey that Tolbert believed
dust exposure, leaf-raking, and hay aggravated his allergy
symptoms. Dr. Kazmier diagnosed nonallergic rhinitis and
recommended that Tolbert avoid irritants and stop smoking. Dr.
Kazmier noted that air conditioning vents, smoke and perfumes can
also increase nasal stuffiness and chest congestion. Dr. Kazmier
did not render an opinion on causation.
Dr. Dewey informed Tolbert that it was highly likely that
mold was a factor in causing his respiratory problems and that
air conditioning vents are a perfect environment for mold. Dr.
Dewey admitted she could not identify the specific mold which
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could have caused Tolbert's allergic reaction nor could she state
where Tolbert was originally exposed to the molds which caused
his allergy symptoms. Dr. Dewey acknowledged that Tolbert's
symptoms occurred in employment and non-employment settings. She
agreed that Tolbert's mold allergy could be triggered in any
environment that has filtered air, such as shopping malls and
office buildings, and she opined that Tolbert's work environment
and exposure to air conditioning exacerbated his allergy symptoms
and were precipitating factors in causing his respiratory
problems.
Dr. Dewey also listed dust, pollen, grass, perfume, and
animal dander as other potential causes of Tolbert's allergy
symptoms. Although her report did not specifically address
Tolbert's pets, Tolbert has five cats living on his home's
enclosed porch and he has approximately forty to fifty tropical
birds living in his home. In addressing causation, Mr. Dewey
stated, "One can't cause allergic rhinitis, one can be allergic
to an allergen."
II. Occupational Disease
The commission ruled that the evidence did not prove that
Tolbert had an occupational disease as defined by Code
§ 65.2-400. In so ruling, the commission found that the evidence
established that Tolbert's allergic reaction could be triggered
by exposures independent of his workplace. This finding is
supported by credible evidence consisting of Tolbert's testimony
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and the medical records. Because the issue whether a disease is
an occupational disease is a medical issue to be decided by the
commission upon credible evidence, we affirm that decision. See
Ross Labs v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208
(1991); Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d
481, 483 (1988).
III. Ordinary Disease of Life Analysis
For an ordinary disease of life to be treated as an
occupational disease, Tolbert was required to establish by clear
and convincing evidence, to a reasonable degree of medical
certainty, that the disease arose out of and in the course of the
employment, that it did not result from causes outside the
employment, that it is characteristic of the employment, and that
it was caused by conditions peculiar to the employment. Code
§ 65.2-401; Greif Companies v. Sipe, 16 Va. App. 709, 714, 434
S.E.2d 314, 317-18 (1993).
In denying compensation to Tolbert, the commission found as
follows:
The evidence here establishes that
exposure to air conditioning systems at the
work place caused [Tolbert's] allergic
rhinitis to become symptomatic beginning
approximately in the Fall of 1991. However,
the evidence also shows that [Tolbert] had
substantial exposure to causes of that
condition injury [sic] outside the work
place, in shopping malls and neighbors'
homes, and even in the home of his mother.
It appears that the aggregate exposures
caused his symptomatic allergic rhinitis and
sinusitis to develop, possibly including the
exposure to filtered and conditioned air at
work. However, it is equally likely that the
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nonwork exposures initially triggered his
allergic reaction, and the work exposure only
further aggravated the resulting condition.
At most, [Tolbert's] evidence shows only that
the work exposures contributed with the
nonwork exposures to produce the injury, but
the evidence does not establish that the
primary exposure is at work or that his
condition did not result from causes
independent of the employment. Rather the
evidence shows substantial exposure to
potential causes of the condition outside the
workplace, which would preclude a finding of
a compensable occupational disease.
Tolbert's testimony and the medical evidence amply support
the commission's decision. The evidence established that
Tolbert's allergy symptoms were triggered in non-employment and
employment settings. Dr. Dewey did not opine that the air
conditioning system or mold in Tolbert's workplace caused his
allergic rhinitis. Rather, she stated that Tolbert's workplace
exacerbated his symptoms. Because Tolbert failed to prove by
clear and convincing evidence, to a reasonable degree of medical
certainty, that the origin of his allergic rhinitis and sinusitis
could be traced to his employment as the proximate cause,
aggravation of these conditions was not compensable as an
occupational disease. See Ashland Oil Co. v. Bean, 225 Va. 1,
300 S.E.2d 739 (1983).
For the reasons stated, we affirm the commission's decision.
Because our ruling on the causation issue disposes of this
appeal, we will not address the statute of limitations issue
raised by employer.
Affirmed.
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