Phillip A. Carper v. National Wildlife Fed. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PHILLIP A. CARPER
MEMORANDUM OPINION*
v. Record No. 1442-99-4 PER CURIAM
FEBRUARY 15, 2000
NATIONAL WILDLIFE FEDERATION AND
NORTHBROOK PROPERTY & CASUALTY
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James A. Klenkar; Hall, Monahan, Engle,
Mahan & Mitchell, on brief), for appellant.
(Christopher R. Costabile; Ollen, Carleton,
Evans & Wochok, on brief), for appellees.
Phillip A. Carper (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he
failed to prove that his asthma constituted a compensable
occupational disease. 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.
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. See Virginia Dep't
of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307,
308 (1985). Unless we can say as a matter of law that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering. Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The commission treated claimant's asthma as an ordinary
disease of life pursuant to Code § 65.2-401. Claimant did not
challenge that classification.
For an ordinary disease of life to be treated as a
compensable occupational disease, claimant had to prove, by
clear and convincing evidence, to a reasonable degree of medical
certainty, that his asthma arose out of and in the course of his
employment, did not result from causes outside of his
employment, was characteristic of his employment, and was caused
by the conditions peculiar to his employment. See Teasley v.
Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50, 415 S.E.2d
596, 598 (1992); see also Code § 65.2-401.
In ruling that claimant failed to carry his burden of
proof, the commission found as follows:
While Dr. [B. Franklin] Lewis, on October
20, 1997, indicated that the claimant had
occupational asthma from his recent
employment, a review of his office notes
fails to indicate any specific exposure that
the claimant had. There is no mention of
solvents or bronze dust as the claimant
testified. In fact, his notes merely
reflect that the claimant suspected it is
the work that is causing the condition but
specifically noted he could not pinpoint any
source of irritation at work. While the
report of Dr. [Thomas J.] LoRusso does
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indicate exposure to bronze dust with a
causal connection, this is based solely on
the history provided by the claimant and the
assumption that the claimant operates a
bronze machine. However, the testimony at
the hearing was that the claimant did not
operate nor work in the bronzing machine
area. He did, however, place the borders on
such cards. The testimony of the claimant
and Mr. Vaughan were contradictory
concerning the amount of dust in the area
. . . . [T]he study of the air quality
failed to find sufficient particles of
bronze dust or solvents in either the
claimant's work area or the room where the
Heidelberg press was located. We also note
the various histories throughout the years
concerning the claimant's wheezing when
exposed to various potential allergens. The
claimant did not appear to be forthright in
his testimony concerning some of these
previous difficulties. We also are troubled
by the conflicting reports in the medical
records and the claimant's testimony
concerning his cigarette usage. We do note
the various medical reports do note
tobacco-related bronchiolitis. . . . [W]hen
presented with additional information, Dr.
LoRusso indicated that he could not say
within a reasonable degree of medical
certainty that the work exposure was the
primary cause of the claimant's condition.
However, some of the information provided to
Dr. LoRusso was not substantiated by the
record . . . . In view of the deputy
commissioner's expressed reservations
concerning the claimant's credibility and
the record as a whole we cannot find that
the [sic] a compensable occupational disease
has been established.
It is well settled that credibility determinations are
within the fact finder's exclusive purview. See Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). As fact finder, the commission was entitled to give
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little probative weight to Dr. Lewis's opinion which was not
supported by any indication in his medical records that claimant
had been exposed to any specific substance. In addition, the
commission was entitled to discount Dr. LoRusso's opinion in
light of the conflicts between his report and the witnesses'
testimony and Dr. LoRusso's uncertainty in his opinion when
confronted with additional information. "Medical evidence is
not necessarily conclusive, but is subject to the commission's
consideration and weighing." Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that the evidence sustained claimant's burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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