COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Coleman
Argued at Richmond, Virginia
CENTRAL STATE HOSPITAL/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1720-07-2 JUDGE SAM W. COLEMAN III
MARCH 25, 2008
ASHLEY M. BECKNER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Scott John Fitzgerald, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General; Maureen Riley Matsen,
Deputy Attorney General; Peter R. Messitt, Senior Assistant
Attorney General, on brief), for appellant.
Gerald G. Lutkenhaus (The Law Office of Gerald Lutkenhaus, on
brief), for appellee.
Central State Hospital/Commonwealth of Virginia (CSH) appeals from a decision of the
Workers’ Compensation Commission awarding benefits to Ashley M. Beckner finding she
proved by clear and convincing evidence that her Methicillin-Resistant Staphylococcus Aureus
(MRSA) infection constitutes a compensable ordinary disease of life under Code § 65.2-401.
Because we conclude that the commission applied the correct burden of proof and that its
findings are supported by credible evidence, to which we must defer, we affirm the
commission’s decision.
There is no dispute that Beckner’s MRSA infection constitutes an ordinary disease of life.
For an ordinary disease of life to be compensable under
§ 65.2-401, a claimant must prove by “clear and convincing
evidence, (not a mere probability),” that the disease (1) “arose out
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
of and in the course of [her] employment as provided in Code
§ 65.2-400”; (2) “did not result from causes outside of the
employment”; and (3) “follows as an incident of occupational
disease . . . [;] is an infectious or contagious disease contracted in
the course of [specified types of employment]; or . . . is
characteristic of the employment and was caused by conditions
peculiar to such employment.” Code § 65.2-400(B) provides that a
disease arises out of the employment “if there is[, inter alia,] . . .
[a] direct causal connection between the conditions under which
work is performed and the occupational disease; . . . [and] [i]t can
be fairly traced to the employment as the proximate cause . . . .”
Evidence is clear and convincing when it produces in the
fact finder “‘a firm belief or conviction as to the allegations sought
to be established. It is . . . 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.’”
The commission’s determination regarding causation is a
finding of fact. A finding of causation need not be based
exclusively on medical evidence, and a claimant is not required to
produce a physician’s medical opinion in order to establish
causation. Causation of a medical condition may be proved by
either direct or circumstantial evidence, including medical
evidence or “the testimony of a claimant.”
In determining whether credible evidence exists to support
the commission’s findings of fact, “the appellate court does not
retry the facts, reweigh . . . the evidence, or make its own
determination of the credibility of the witnesses.” When the
commission makes an award of benefits, unless we can say as a
matter of law that claimant failed to sustain her burden of proving
causation, the commission’s findings are conclusive.
Tex Tech Indus., Inc. v. Ellis, 44 Va. App. 497, 503-04, 605 S.E.2d 759, 761-62 (2004) (citations
omitted). If credible evidence supports the commission’s determination, we are bound by it
notwithstanding the fact that evidence may exist which supports a contrary finding. Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
We view the evidence on appeal in the light most favorable to Beckner, the prevailing
party before the commission. See Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d
538, 539 (2003). So viewed, the evidence showed that Beckner began working for CSH on
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September 10, 2005. Prior to that date, she was healthy and had never experienced symptoms of
MRSA or been diagnosed with a MRSA infection. She had previously worked in a hospital
setting as an emergency room registrar and an EKG technician, but left that employment in April
2005, approximately five months before starting work at CSH. In addition, she was not aware of
any patients that she came into contact with in her previous job as having MRSA. That hospital
tested all patients for MRSA, and if a test came back positive, it notified employees who had
engaged in contact with that patient. Beckner never received notification that she had contact
with a MRSA infected patient while working at that hospital.
Beckner also denied having taken any antibiotics in October 2005, being hospitalized
during the period before October 2005, having any open sores or wounds, or being treated for
any respiratory infection in October 2005, prior to her MRSA diagnosis. At that time, she was
living with her boyfriend, who had never been diagnosed with MRSA and did not have any signs
or symptoms of a MRSA infection. Beckner admitted she had several body piercings, which she
obtained in 2002 or 2003. Those piercings did not lead to a MRSA infection at that time.
Around October 15, 2005, two to three weeks after she started working directly with
patients at CSH, Beckner noticed large boils on her arms. She denied ever having these boils
before that date. She received medical treatment at Healthcare Plus, where a culture was taken.
According to Beckner, two days later, at her appointment with her treating physician, Dr. James
Ross, he told her she had MRSA and that she “probably got it from [CSH].” When questioned
about her contact with patients at CSH, Beckner stated they constantly grabbed or touched her
bare arms and also touched her clothed shoulders. She came into contact with approximately
twenty mental health patients on the ward, all of whom had very poor hygiene. Some of them
urinated and defecated on themselves. After Beckner’s MRSA diagnosis, CSH asked her to
identify three patients who she believed might have MRSA. Diane Crawford, BSN, RN, CIC, an
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infection control professional employed by CSH, reviewed the charts for those three patients,
and reported that she “found no documentation of active MRSA during the time [Beckner] . . .
specified exposure, nor was there an outbreak among patients or staff.” No evidence showed
that the other patients’ charts were reviewed or that any testing for MRSA was performed by
CSH.
On November 7, 2005, Dr. Ross, board certified in internal medicine and preventative
medicine, wrote in an office note that Beckner’s “abscesses, [which grew MRSA], were
hospital-acquired.” Subsequently, Dr. Ross opined, based on information from the Center for
Disease Control (CDC) regarding MRSA, coupled with his treatment of Beckner, that “it is more
likely than not” that she “acquired MRSA at [CSH].” Dr. Ross pointed out that it was not
necessary for a patient to have an active MRSA infection in order to transmit the disease to
Beckner. Dr. Ross cited CDC information on the significantly increased prevalence of MRSA in
hospital settings and that specific patient populations with poor hygiene present a higher risk.
In a June 10, 2006 letter to Beckner’s counsel, Dr. Rebecca A. Littaua, an infectious
disease specialist, who also treated Beckner, expressly stated that Beckner’s MRSA infection
was “most likely” acquired while working at CSH. (Emphasis added.) In doing so, Dr. Littaua
noted that
Ms. Beckner had been exposed to many patients and their
environment during her work in that facility, and it is known that
person-to-person or contact transmission is the usual mode of
spread for S. aureus infections. Prior to her work in CSH, she was
healthy and she denied contact with anyone who was ill. But
within a two-week period after starting her work in CSH, she
started developing furuncles that quickly spread to her extremities.
In response to a questionnaire from Beckner’s counsel in August 2006, Dr. Littaua,
addressing the requirements for compensability under Code § 65.2-401, opined within a
reasonable degree of medical probability that Beckner’s exposure to the patients and work
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conditions at CSH was the proximate cause of her MRSA infection. Dr. Littaua agreed that a
“direct causal connection” existed between the conditions under which Beckner worked at CSH
and the MRSA disease she was diagnosed with on October 18, 2005. Dr. Littaua opined that
Beckner’s MRSA was a natural incident of the work she performed at CSH. Dr. Littaua noted
the common incubation period for MRSA is four to ten days, and that incubation period
supported her opinion that the source of Beckner’s MRSA infection was her employment at CSH
and her exposure to over twenty mental health patients in the weeks preceding her diagnosis.
Dr. Littaua agreed that Beckner’s MRSA was more likely than not acquired at CSH from
exposure by person-to-person contact with mental health patients, their clothing, or hospital
equipment. Dr. Littaua opined with a reasonable degree of medical probability that MRSA is an
infectious or contagious disease that Beckner contracted during the course of her employment at
CSH from September 10 to October 18, 2005. Dr. Littaua agreed that MRSA is a disease
characteristic of employment in a mental health hospital like CSH and was caused by conditions
peculiar to such employment. Dr. Littaua opined within a reasonable degree of medical
probability that Beckner was not exposed to MRSA outside her employment at CSH prior to her
diagnosis. Dr. Littaua agreed that Beckner’s previous employment, which ended in April 2005,
was not the source of her MRSA infection. Dr. Littaua concurred with Dr. Ross’s opinion that
MRSA is far more prevalent in institutional settings than the community, that Beckner was
exposed to many mental health patients who had problems with hygiene at CSH, and that she
more likely than not acquired MRSA at CSH.
In its opinion, the commission acknowledged in unambiguous terms its understanding of
the clear and convincing evidence standard as the degree to which it must be persuaded as fact
finder that Beckner sustained her burden of proving the required elements, including causation,
under Code § 65.2-401. Then the commission, in its role as fact finder, weighed the evidence
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and accepted, as credible, the opinions of Drs. Ross and Littaua as to causation, while rejecting
Crawford’s opinion, noting as follows:
Dr. Ross and Dr. Littaua agree that the claimant more likely than
not contracted the infection at [CSH]. Dr. Ross specifically
referred to the infection as hospital acquired, and Dr. Littaua
addressed the required causal elements contained in the statute,
concluding that the elements have been established. Both
physicians provided detailed explanations for their opinions
relating to the general risk of contracting the disease and to the
claimant’s specific case. A nurse [Crawford] employed by the
defendant in this case issued the opposing opinion. We find the
treating physicians’ opinions more persuasive.
We are bound by the commission’s resolution of the conflicting medical opinions. See
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Thus, the
dispositive question on appeal is whether we can say as a matter of law that the evidence taken as
a whole, not in isolation, including the expert medical opinions and reports of Drs. Ross and
Littaua and claimant’s testimony, which a majority of the commission found credible, coupled
with any other direct or circumstantial evidence and the reasonable inferences deducible
therefrom, failed to support the commission’s finding that Beckner proved by clear and
convincing evidence that her MRSA infection constituted a compensable ordinary disease of life
under Code § 65.2-401.
Here, Dr. Littaua initially opined that Beckner’s MRSA was “most likely” acquired while
working at CSH, using the word “most” to modify “likely.” We have held that “the addition of
the word ‘most’ to [an expert medical] opinion change[s] its meaning considerably. The adverb
‘most’ means ‘[i]n or to the highest degree’ and is ‘[u]sed with many adjectives and adverbs to
form the superlative degree [as in] most honest [or] most impatiently.’” Lee County Sch. Bd. v.
Miller, 38 Va. App. 253, 263, 563 S.E.2d 374, 379 (2002) (quoting The American Heritage
Dictionary of the English Language 1178 (3d ed. 1992)) (held commission could reasonably
conclude a physician’s opinion that claimant’s carpal tunnel syndrome was “most probably
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secondary to [the] cumulative effect of several years duration involving repetitive lifting,
rotating, bending, and use of wrists” met “the standard required to prove a proposition by clear
and convincing evidence”). Here, as in Miller, the commission “could reasonably conclude that
Dr. [Littaua], by combining the adverbs ‘most’ and ‘[likely],’ expressed [her] opinion regarding
the cause of [Beckner’s MRSA infection] as ‘a firm belief or conviction,’ the standard required
to prove a proposition by clear and convincing evidence.” Id. Moreover, “[w]hen a physician’s
opinion is certain and accepted by the commission, this Court ‘will not substitute form over
substance by requiring a physician to use . . . magic words . . . .” Commonwealth v. Bakke, 46
Va. App. 508, 527, 620 S.E.2d 107, 116 (2005) (referring to the “reasonable degree of medical
certainty” standard).1
Dr. Littaua’s opinion that Beckner’s MRSA was “most likely” acquired at CSH, coupled
with her remaining opinions and reports, Dr. Ross’s opinions and reports, and the record as a
whole, including Beckner’s testimony, could reasonably provide the commission, as fact finder,
with a firm belief that the primary source of Beckner’s MRSA infection was her employment at
CSH and that her MRSA was directly and proximately caused by that employment. “As we
previously have held, the requirement that a claimant establish the source of the disease means
she must point ‘not to a single source [of the disease], to the complete exclusion of all other
sources, but to the primary source . . . .’” Miller, 38 Va. App. at 261, 563 S.E.2d at 378 (quoting
Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991)).
The two treating physicians explained why they found a “direct causal connection”
between Beckner’s MRSA and her CSH employment, such as the incubation period for the
MRSA infection, its institutional nature, her considerable exposure to nonhygienic patients, and
1
In Lanning v. Va. Dep’t of Transp., 37 Va. App. 701, 709, 561 S.E.2d 33, 37 (2002), we
noted that “[w]e cannot affirm a decision that emphasizes the use of one word to the exclusion of
considerations of the context within which the word is used and other evidence in the record.”
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her limited social contact with other individuals. Accordingly, their opinions and the underlying
facts and circumstances that supported their opinions that Beckner’s MRSA “most likely” was
caused by her employment were sufficient for the commission, as a rational fact finder, to form
“a firm belief or conviction” as to the cause of her MRSA.
We find CSH’s reliance on Lindenfeld v. City of Richmond Sheriff’s Office, 25 Va. App.
775, 492 S.E.2d 506 (1997), misplaced. Lindenfeld, unlike this case, dealt with the pre-1997
language contained in Code § 65.2-401 requiring clear and convincing evidence “to a reasonable
degree of medical certainty.” Furthermore, Lindenfeld involved the commission’s denial of a
claim based upon its resolution of conflicting medical evidence and its weighing of the
remaining evidence in the record. In Lindenfeld, in order to overturn that award on appeal, we
had to find as a matter of law that Lindenfeld’s evidence sustained his burden of proof. Here, the
commission awarded benefits to Beckner based on its weighing of the evidence, which we also
must affirm, unless we can say as a matter of law that she failed to sustain her burden of proof.
As in Lindenfeld, we were required to defer to the fact finder and, we are required to do the same
here.
Accordingly, we affirm the commission’s decision.
Affirmed.
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