Dept. of Health/Commonwealth v. Joanne Butler Keene ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
DEPARTMENT OF HEALTH/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION *
v. Record No. 1732-96-1 PER CURIAM
JANUARY 7, 1997
JOANNE BUTLER KEENE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James S. Gilmore, III, Attorney General;
Gregory E. Lucyk, Senior Assistant Attorney
General; Lee Melchor Turlington, Assistant
Attorney General, on brief), for appellant.
(Jonathan A. Smith-George; Patten, Wornom &
Watkins, on brief), for appellee.
Virginia Department of Health/Commonwealth of Virginia
("employer") contends that the Workers' Compensation Commission
("commission") erred in (1) finding that Joanne B. Keene
("claimant") proved she was injuriously exposed to asbestos while
working as a nurse epidemiologist for employer in the James
Madison Building; (2) finding that claimant's mesothelioma
constituted a compensable occupational disease or ordinary
disease of life as defined by Code §§ 65.2-400 and 65.2-401,
respectively; and (3) admitting into evidence certain documents
related to asbestos contained in the James Madison Building.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
summarily affirm the commission's decision. Rule 5A:27.
I. and II.
On appeal, the commission's findings must be viewed in the
light most favorable to the prevailing party below. 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.' When there is credible evidence to support it,
such a finding of fact is 'conclusive and binding' on this
Court." Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78,
412 S.E.2d 205, 208 (1991) (citation omitted). "In determining
whether credible evidence exists, the appellate court does not
retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses."
Wagner Enters, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
Code § 65.2-400 defines an occupational disease as one
"arising out of and in the course of employment." The statute
provides that "[a] disease shall be deemed to arise out of the
employment" when the evidence establishes six elements. Element
(1) requires that there be "[a] direct causal connection between
the conditions under which work is performed and the occupational
disease." Element (3) requires that the disease "can be fairly
traced to the employment as the proximate cause." Employer
contends that the commission erred in finding that claimant's
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evidence proved the requisite causal connection between her
mesothelioma and her employment. 1
Claimant's testimony regarding the white dust she frequently
encountered in her work environment, the testimony and opinions
of Dr. Joseph Guth, an industrial hygienist, the opinions of
claimant's physicians, Drs. Legier and Schepers, and the
documents reflecting that friable asbestos was located above the
acoustical ceiling tiles on every floor of the James Madison
Building and in the building's air handling system, constitute
ample credible evidence to support the commission's finding that
claimant acquired mesothelioma as a direct result of her exposure
to asbestos during her thirteen years of working for employer in
the James Madison Building. Because the commission's factual
findings are supported by credible evidence, they are binding and
conclusive upon this Court on appeal. Accordingly, we cannot say
as a matter of law that the commission erred in finding that
claimant proved she sustained a compensable occupational disease
pursuant to Code § 65.2-400.
1
The commission did not err in treating claimant's
mesothelioma as a compensable occupational disease in accordance
with the six requirements of Code § 65.2-400 rather than as an
ordinary disease of life pursuant to Code § 65.2-401. If a
claimant's occupational disease resulted from substantial
exposure outside of the employment, the claimant must meet the
more rigorous standard of proof contained in Code § 65.2-401.
Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 38-39, 422
S.E.2d 165, 170 (1992). Here, credible evidence supports the
commission's findings that claimant encountered no substantial
exposure to the causes of mesothelioma outside of her employment.
There was no evidence that claimant was exposed to asbestos
outside of her employment which might have led to her disease.
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III.
"[R]igid or technical rules of pleading, evidence, or
practice in the conduct of hearings shall not apply so long as
the procedures adopted protect the substantial rights of the
parties." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339
S.E.2d 204, 207 (1986). See also Rule 2.2, Rules of the Virginia
Workers' Compensation Commission. The commission is entitled to
accept hearsay evidence without corroboration. Franklin Mortgage
Corp. v. Walker, 5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987),
aff'd on reh'g en banc, 6 Va. App. 108, 367 S.E.2d 191 (1988).
In light of the rules according the commission wide
discretion in determining the evidence it will receive and
consider, we cannot say that the commission abused its discretion
in allowing the documents, some of which were employer's own
records, into evidence. These documents, which related largely
to the removal of asbestos from the James Madison Building, were
relevant and material to the issues of exposure and causation.
Furthermore, we find nothing to indicate that the commission
violated employer's due process rights. The documents admitted
into evidence were either prepared by the Commonwealth's
employees or were studies of the James Madison Building that were
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commissioned or requested by employer.
2
We note that claimant's exhibits E-1 and E-14 were not
admitted into evidence or considered by the deputy commissioner.
Therefore, we find no merit in employer's argument with respect
to these two documents.
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For the reasons stated, we affirm the commission's decision.
Affirmed.
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