Hudson Venetian Blind Service, Inc.et al. v. Hudson ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
HUDSON VENETIAN BLIND SERVICE, INC.
AND PENNSYLVANIA GENERAL
INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 1611-98-2 PER CURIAM
MAY 18, 1999
DONALD A. HUDSON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Bradford C. Jacob; Taylor & Walker, P.C., on
brief), for appellants.
(Andrew J. Reinhardt; Kerns, Kastenbaum &
Reinhardt, on brief), for appellee.
Hudson Venetian Blind Service, Inc., and its insurer
(hereinafter referred to as “employer”) contend that the Workers’
Compensation Commission erred in holding that Donald A. Hudson
proved (1) that he suffers from a polyneuropathy or a peripheral
neuropathy based upon the opinion of Dr. Robert J. DeLorenzo; (2)
that his condition was caused by exposure to chemicals at work;
(3) that he suffers from a compensable occupational disease rather
than a gradually incurred, noncompensable, cumulative exposure to
chemical solvents; (4) that a June 1, 1995 extender spill incident
caused his condition; and (5) that he was totally disabled since
March 1, 1996, and, therefore, was not obligated to market his
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
residual capacity. 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. See
Rule 5A:27.
I., II. and IV.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Moreover, “[t]he actual determination of causation is a factual
finding that will not be disturbed on appeal if there is credible
evidence to support the finding.” Ingersoll-Rand Co. v. Musick, 7
Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
Dr. DeLorenzo, chief neurologist at the Medical College of
Virginia Hospital (“MCV”), a neurology professor, and the Director
of the Neuroscience Research Facility, testified that he talked to
Hudson on several occasions, performed a one and one-half hour
history and complete physical and neurological examination of
Hudson, reviewed Hudson’s MCV medical chart for approximately four
to five hours at various intervals, spent another hour reading
Hudson’s initial evaluations, and another two hours reviewing all
of his laboratory testing. In his de bene esse deposition, Dr.
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DeLorenzo opined that Hudson suffers from “a peripheral neuropathy
with both sensory and motor components, as well as evidence of
central nervous system damage . . . probably . . . in the spinal
cord . . . called a myelopathy.” Dr. DeLorenzo testified that to
a reasonable degree of medical certainty the damage to Hudson’s
nervous system was caused by his unprotected exposure to paint
solvents and chemicals in the workplace. Dr. DeLorenzo opined
that Hudson’s condition could have been caused by “one or two very
large exposures in the workplace, which it’s my understanding that
that happened . . . or [by] chronic accumulation.” Dr. DeLorenzo
stated that Hudson’s condition was probably due to both causes and
was “[d]efinitely not” due to an idiopathic cause. Dr.
DeLorenzo’s December 13, 1996 letter report was consistent with
the opinions he expressed in his deposition.
As fact finder, the commission was entitled to accept Dr.
DeLorenzo’s opinions and to reject any contrary medical opinions.
“Questions raised by conflicting medical opinions must be decided
by the commission.” Penley v. Island Creek Coal Co., 8 Va. App.
310, 318, 381 S.E.2d 231, 236 (1989). Dr. DeLorenzo’s opinions
provide credible evidence supporting the commission’s finding that
Hudson suffers from a polyneuropathy or peripheral neuropathy
caused by exposure to paint solvents and chemicals in his
workplace. “The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
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support the commission’s finding.” Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Furthermore, whether Hudson’s condition was caused by a
single exposure or prolonged high exposure to chemical solvents in
the workplace is immaterial. Dr. DeLorenzo stated that Hudson’s
condition was attributable to either situation or both. Based
upon Hudson's testimony and Dr. DeLorenzo’s opinions, the
commission properly concluded that “the particular event on June
1, 1995 produced a definitive change in [Hudson’s] condition, such
that it suddenly and unexpectedly produced the myriad effects in
[Hudson’s] central nervous system that significantly altered his
condition.”
III.
The Supreme Court’s recent decision in A New Leaf, Inc. v.
Webb, 257 Va. 190, 511 S.E.2d 102 (1999), is dispositive of this
issue. In Webb, the Supreme Court held that a florist’s
allergic contact dermatitis was compensable as an occupational
disease because it was caused by a reaction to allergens in
certain flowers encountered in the claimant’s job as a florist,
not by cumulative trauma induced by repetitive motion. See id.
at 192, 511 S.E.2d at 102.
“‘[W]hether a worker has suffered an impairment that
constitutes a compensable disease is a mixed question of law and
fact.’ Thus, the Commission’s finding on that question is not
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conclusive but is a proper subject for judicial review.” Id. at
196, 511 S.E.2d at 104. In determining whether Hudson’s
condition qualifies as an occupational disease, we must consider
the nature and cause of the impairments. See id. at 197, 511
S.E.2d at 105.
Here, credible medical evidence, including the medical
records and opinions of Dr. DeLorenzo, proved that Hudson’s
polyneuropathy or peripheral neuropathy was caused by the
reaction of his body to unprotected high exposure to paint
solvents and chemicals in the workplace, whether over an
extended period of time or over several large exposures. No
evidence established that Hudson’s condition was caused by
cumulative trauma induced by repetitive motion. Accordingly,
the commission did not err in holding that Hudson’s condition is
a compensable occupational disease within the meaning of the
Workers’ Compensation Act.
V.
The commission held that Hudson proved he had been totally
disabled since March 1, 1996, and, therefore, had no obligation
to market a residual work capacity. In so ruling, the
commission found as follows:
The record establishes that [Hudson] is
severely disabled by his neurological
problems, such that he is essentially
limited to sitting in a chair, and talking
on the telephone. Moreover, Dr. [Richard]
Waller persuasively testified that he doubts
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whether [Hudson] can perform such activities
under stress, which he defined as “any type
of complex intellectual functioning, or
maybe interpersonal interactions, I guess
outside the context of his family.”
The testimony of Dr. Waller and Dr. DeLorenzo, who opined
that Hudson was totally disabled from work and that his
condition would not improve, constitutes credible evidence
supporting the commission’s findings. Based upon their
testimony, coupled with evidence of Hudson’s age, his
significant neurological deficits and brain impairments, and his
work history, the commission did not err in concluding that
Hudson proved that he had been totally disabled since March 1,
1996, and therefore, was not obligated to market his residual
capacity.
For these reasons, we affirm the commission’s decision.
Affirmed.
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