COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Willis and
Retired Judge Whitehurst *
Argued at Norfolk, Virginia
EDITH A. CHANIN
OPINION BY
v. Record No. 1808-94-1 JUDGE JERE M. H. WILLIS, JR.
JULY 25, 1995
EASTERN VIRGINIA MEDICAL SCHOOL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter & Montagna, on
brief), for appellant.
David E. Constine, III (Dabney J. Carr, IV;
Mays & Valentine, on brief), for appellee.
On appeal from the commission's decision that she does not
suffer from a compensable ordinary disease of life under Code
§ 65.2-401, Dr. Edith A. Chanin contends (1) that credible
evidence does not support the commission's finding that her
multiple chemical sensitivity syndrome (MCS) was an aggravation
of a pre-existing ordinary disease of life, and (2) that her
health and medical treatment prior to September 2, 1992 does not
establish by a preponderance of the evidence that she suffered
MCS prior to that date. We consolidate these contentions into
one overall issue: whether credible evidence supports the
commission's finding that Dr. Chanin failed to prove by clear and
convincing evidence to a reasonable degree of medical certainty
*
Retired Judge Alfred W. Whitehurst took part in
consideration of this case by designation pursuant to Code
§ 17-116.01.
that her disease (MCS) arose out of and in the course of her
employment with Eastern Virginia Medical School (EVMS). Finding
no error, we affirm the commission's decision.
EVMS employed Dr. Chanin as Director of the Gerontology
Institute located at DePaul Medical Center, beginning September
1, 1992. She spent four hours that day in her office, where she
smelled a "musty, moldy chemical odor." From September 1 to
November 4, 1992, she developed progressive respiratory problems.
During that time, her office was moved four times. She was
examined by several physicians, who diagnosed her with MCS, but
none identified the chemical causing the sensitivity.
On February 28, 1994, a deputy commissioner found that Dr.
Chanin had not proved a compensable occupational disease because
medical evidence showed that she had suffered from pre-existing
symptoms, that there was no detectable level of "trigger
mechanisms" at DePaul, and that she was exposed to toxins outside
of her employment. The deputy commissioner stated, "[a]t best,
Chanin's exposure at DePaul merely aggravated a pre-existing
ordinary disease of life." On August 15, 1994, the full
commission found that Dr. Chanin had failed to prove she suffered
from a compensable ordinary disease of life.
Dr. Chanin concedes that MCS is an ordinary disease of life
because it is a disease to which the general public is exposed
outside of employment. For an ordinary disease of life to be
compensable under § 65.2-401, [Chanin] must establish by "clear
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and convincing evidence, to a reasonable medical certainty" that
the disease (1) arose out of and in the course of employment, (2)
did not result from causes outside of the employment, and (3)
follows as an incident of an occupational disease, is an
infectious disease or contagious disease contracted in the course
of employment, or is characteristic of employment and was caused
by conditions peculiar to the employment.
Island Creek Coal v. Breeding, 6 Va. App. 1, 11, 365 S.E.2d 782,
788 (1988).
Dr. Chanin contends that she met this burden. She argues
that the evidence proved that she suffered from MCS and that the
cause of the disease was injurious exposure to toxins at DePaul.
She argues that her disease and its employment-related cause
were proven by the testimony of Drs. Ziem, Baker, Heuser, Cullen,
and Lieberman. We disagree.
"Decisions of the commission as to questions of fact, if
supported by credible evidence are conclusive and binding on this
Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229,
409 S.E.2d 824, 826 (1991). "Whether a disease is causally
related to the employment and not causally related to other
factors is such a finding of fact." Breeding, 6 Va. App. at 12,
365 S.E.2d at 788 (citing Watkins v. Halco Engineering, Inc., 225
Va. 97, 101, 300 S.E.2d 761, 763 (1983)). "The fact that
contrary evidence may be in the record is of no consequence if
there is credible evidence to support the Commission's findings."
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Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824,
826 (1986).
The commission's decision denying Dr. Chanin disability
benefits is supported by credible evidence. First, the
commission found that the opinion of Dr. Ziem, Dr. Chanin's
treating physician, was "based on an incorrect understanding of
the facts of the claimant's work environment." Dr. Ziem based
her diagnosis on the supposition that gasses were emitted by new
carpet and renovations at DePaul. Neither condition existed.
Furthermore, Dr. Ziem was unable to identify any substances in
the DePaul environment that could have caused Dr. Chanin's MCS.
Second, the commission found that Dr. Chanin spent only
fifty percent of her time at DePaul. Dr. Cullen, a professor of
medicine at Yale University and a respected authority on MCS,
reviewed Dr. Chanin's medical records. He concluded that she had
MCS, but that it could not have been caused primarily by her
exposure to the DePaul environment. Dr. Cullen stated, "the
hallmark of MCS is development of the disease after repeated low-
level chemical exposures or a single high level chemical
exposure." Dr. Chanin worked only four hours at DePaul before
the symptoms began. Thereafter, she spent only fifty percent of
her time at DePaul. She has been exposed to aggravating
chemicals in her home and in her neighborhood, both in New York
where she lived previously and in Norfolk where she lives
presently. She has not proved that her MCS "did not result from
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causes outside of the employment."
Third, the commission found that no doctor isolated the
chemical(s) causing the sensitivity. While the statute does not
require that a single source of the claimant's disease be
pinpointed, it does require that the "primary source [be]
determined by 'reasonable medical certainty.'" Ross Laboratories
v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991).
Such a determination must be based on evidence that "it is at
least more probable than not that the disease arose out of and in
the course of employment." Westmoreland Coal Co. v. Campbell, 7
Va. App. 217, 224, 372 S.E.2d 411, 416 (1988). Dr. Chanin
offered no evidence of chemicals in Depaul's environment.
Because no evidence exists of chemical exposure in Dr. Chanin's
employment environment, we cannot find that she met her burden of
proving by "clear and convincing evidence" to a reasonable
medical certainty that her disease arose out of and in the course
of her employment at DePaul, as required by Code § 65.2-401.
Fourth, Dr. Chanin admitted that symptoms of MCS may be
instant or delayed. Thus, we cannot determine where or when the
exposure occurred. Therefore, no evidence proved to a reasonable
medical certainty that the environment at DePaul was the
proximate cause of Dr. Chanin's disease.
The judgment of the commission is affirmed.
Affirmed.
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