COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
TIDEWATER PHYSICIANS MULTISPECIALTY
GROUP AND HARTFORD CASUALTY INSURANCE
COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2207-99-1 JUDGE SAM W. COLEMAN III
MAY 30, 2000
MAE FRANCIS HARRIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black LLP, on briefs), for
appellants.
Byron A. Adams for appellee.
Tidewater Physicians Multispecialty Group (employer)
appeals the Workers' Compensation Commission's decision awarding
Mae Francis Harris temporary total disability benefits from
February 11, 1998, and continuing. The employer argues that the
commission erred in finding that Harris proved by clear and
convincing evidence that she suffers from a continuing
disability causally related to her employment and erred in
finding that she has adequately marketed her residual work
capacity. We disagree and affirm the commission's decision.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to Harris, the party prevailing before the commission. See R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). So viewed, the evidence proved that Harris
worked as an x-ray technician intermittently for twenty years
and that she had worked for Tidewater Physicians Multispecialty
Group since 1990. In November 1995, the employer installed a
new, larger, faster x-ray film processor which did not have a
cover for the film feed. Because the new machine did not have a
cover, Harris was required to remain in the processing room
while the film was being developed in order not to overexpose
the film. As a result, Harris had longer exposure to fumes from
the chemicals used in the processor and was exposed to chemicals
not used with the other film processor. The film processing
room was poorly ventilated and would become very warm while the
machine was operating.
Within a few months of working with the new machine, Harris
began experiencing a cough, a burning sensation in her throat,
and wheezing each time she was exposed to the new x-ray
processing machine. Harris also suffered from earaches and
respiratory problems, which she attributed to the exposure to
the chemicals used in the new film processor. She testified
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that she had not experienced coughing, wheezing, or allergy
symptoms before working with the new film processor.
Harris was examined by Dr. Chester L. Fisher on May 6,
1996. In an office note, Dr. Fisher stated that, after her
initial visit on May 2, Harris' symptoms improved with
medication and while she was absent from work. Dr. Fisher
reported that Harris suffers from irritative upper respiratory
syndrome or "occupational" rhinitis and that she had a "total
disability" from her work.
On May 17, 1996, Harris was examined by Dr. L.W. Moore,
Jr., a pulmonary specialist, who opined that Harris' "cough,
pharyngeal irritation, and hoarseness [were] most likely
associated with exposure to chemicals, used in the x-ray film
development." Dr. Moore noted that Harris' symptoms would
improve on weekends and while she was away from the workplace.
Dr. Moore recommended that Harris not work around the film
processing chemicals.
In October 1996, Harris was examined by Dr. Geoffrey W.
Bacon, an otolaryngologist. Dr. Bacon noted that Harris
complained of headaches, cough, and hoarseness that she
attributed to working with chemicals associated with the x-ray
processing machine. In an office note dated October 8, 1996,
Dr. Bacon diagnosed Harris with allergic rhinitis and chemical
sensitivities and instructed her to avoid significant chemical
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exposure. He also noted that she exhibited a wide range of
moderate to severe sensitivities to pollen, animals, feathers,
several molds, dust mites, and cockroaches. She undergoes
allergy immunotherapy on a regular basis which is expected to
continue for her lifetime. Dr. Bacon also recommended "strict
environmental controls related to chemicals." Dr. Bacon opined
that Harris' "general allergic sensitivities should not impair
her ability to work" and that "her allergic sensitivities are
essentially a permanent condition." Dr. Bacon further stated
that the "primary treatment for [Harris'] chemical sensitivities
would be avoidance," and he referred Harris to a pulmonologist.
Harris filed an application for benefits alleging an
occupational disease with a communication date of May 6, 1996.
The commission found that Harris suffered from a compensable
occupational disease which was causally related to her work as
an x-ray technician, specifically her exposure to the film
processing chemicals. The commission found that Harris was no
longer totally disabled after May 17, 1996 and that she had
failed to market her residual partial work capacity. Thus, the
commission awarded Harris temporary total disability benefits up
until it was determined that she had recovered from her allergic
reaction and found that she was not entitled to partial
disability benefits because she failed to market her residual
capacity. That decision became final and was not appealed. As
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to future benefits for any period of disability, the commission
expressly stated that "we do not decide whether claimant may be
entitled to future benefits" and ruled that the deputy
commissioner could not foreclose a claim for future benefits as
he had attempted to do.
Harris subsequently filed a change in condition application
in May 1998, claiming temporary total disability benefits
beginning February 11, 1998. The commission awarded benefits,
finding that Harris had adequately marketed her residual
capacity, that she was temporarily totally disabled from
February 11, 1998, and that the disability was causally related
to the industrial disease.
ANALYSIS
A. Continuing Disability
The employer contends Harris has failed to prove that her
current condition or "chemical sensitivity" is causally related
to the work environment or her industrial disease. The employer
argues that Harris has not proven what her "chemical
sensitivities" are and how they developed. The employer points
out that many of the allergens to which the claimant is
sensitive and which account for her current condition are
unrelated to the chemicals in the workplace. Therefore, the
employer asserts that Harris has failed to show any correlation
between her condition and the compensable industrial disease.
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"In an application for review of an award on the ground of
change in condition, the burden is on the party alleging such
change to prove [her] allegations by a preponderance of the
evidence." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 438-39, 339 S.E.2d 570, 572 (1986) (citation omitted). We
accept the commission's factual findings when they are supported
by credible evidence. See James v. Capitol Steel Constr. Co.,
8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In the April 14, 1998 decision, the commission found that
Harris suffered from a compensable occupational disease in that
she had developed an allergic reaction to the chemicals in her
workplace. The employer did not appeal that decision.
Accordingly, any further consideration of whether Harris'
original occupational disease is causally related to her
employment is barred by res judicata. See K & L Trucking Co.,
v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)
(finding that the doctrine of res judicata is applicable to
decisions of deputy commissioners and the full commission).
Thus, the issue now on appeal is whether the evidence proves
that Harris' current disability and allergic reactions are
causally related to the industrial disease.
The commission expressly declined to decide in the former
proceeding whether Harris may be entitled to future benefits
based on a claim that she has become "sensitized" to exposure to
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chemicals in the pre-injury work environment. In its August
1999 decision, the commission found that Harris is partially
disabled and her current disability is causally related to her
pre-injury work environment. "Whether a disease is causally
related to the employment and not causally related to other
factors is . . . a finding of fact." Island Creek Coal Co. v.
Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988) (citation
omitted).
Here, the medical evidence established that within a few
months of working with the new x-ray processing machine, Harris
began experiencing respiratory problems, including coughing,
wheezing, and sore throat. Harris denied having experienced any
respiratory problems or allergic reactions prior to the increase
in chemical exposure caused by the new x-ray machine. Harris
testified that, after her chemical exposure, she has sensitivity
to and is adversely affected by car exhaust, cigarette smoke,
bleach, household cleaning products, beauty shop chemicals, and
perfumes. She has been tested for sensitivity to several
environmental allergens and has been found to be allergic to dust,
trees, mold, and animal dander. Harris is currently undergoing
allergy immunotherapy, which she expects to continue her entire
life. Harris' treating physician has opined that she "has a known
history of chemical sensitivities" and that she "should continue
to avoid any significant chemical exposures, either at any place
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of employment or in her personal life." The commission found that
the chemical sensitivity and her current sensitivity to other
allergens in the environment are the same sensitivity that she
developed due to the exposure to chemicals in the workplace. We
find that the commission's finding that Harris' chemical
sensitivity is causally related to her exposure to the x-ray
chemicals is supported by credible evidence.
We further find that the commission's finding that Harris
is partially disabled because she has become "sensitized" as a
result of her exposure to the chemicals in her pre-injury work
is supported by credible evidence.
In awarding compensation, the commission found that:
[Harris] continues to be partially disabled
as a result of her compensable occupational
disease. Because of this continuing partial
incapacity, she cannot perform her
pre-injury work as an x-ray technician since
that work would require her to be exposed to
chemicals that her physicians have concluded
she is sensitive to.
In concluding that Harris has not recovered from her
disability and, therefore, has not obtained her pre-injury
status, the commission relied on its holdings in Blevins v.
Smyth County Vocational School, VWC File No. 185-57-17 (July 1,
1998), and Pruett v. J & R Electric Contractor, Inc., VWC File
No. 160-30-44 (Nov. 30, 1993). In Blevins, the claimant
suffered from hypersensitivity pneumonitis. The claimant's
treating physician opined that the claimant was "not disabled
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and has the capacity to do any other job in which such exposure
would not be required." The physician further stated that the
claimant "has been suffering from recurrent bouts of
hypersensitivity pneumonitis related to exposure to work place
allergens to which he has been sensitized. With removal of that
exposure his hypersensitivity has resolved." The commission
found, based on the physician's report, that the claimant was
partially disabled.
In Pruett, the claimant was an electric motor winder. In
that capacity, the claimant frequently was exposed to fumes from
soldering and welding, dipping the motors into a vat of epoxy or
hot varnish, and cleaning the housing. The claimant began to
experience respiratory problems and was diagnosed with
industrial asthma. His treating physician opined that his
condition was caused by exposure to fumes in the workplace. In
finding that the claimant was disabled, the commission noted
that the claimant's treating physicians opined that the claimant
could not return to his pre-injury work because "he has become
sensitized to chemicals to which he is exposed in that
employment. Therefore, he has not reached his pre-injury
employment status inasmuch as he was not sensitized before he
became disabled." We find the commission's rationale in Blevins
and Pruett sound and persuasive.
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Here, in an office note dated May 11, 1998, Dr. Bacon
stated that Harris should "continue to avoid any significant
chemical exposures, either any place of employment or in her
personal life." Harris testified and the record supports a
finding that she continues to experience sensitivity to
allergens that are present in the workplace. Harris currently
undergoes immunotherapy to reduce her sensitivity to allergens.
Accordingly, we find that credible evidence supports a finding
that Harris is currently partially disabled in that she
continues to suffer from symptoms related to the allergic
chemical reaction and is unable to perform her pre-injury work.
B. Marketing Residual Capacity
The employer argues that the commission erred in finding
that Harris reasonably marketed her residual work capacity. The
employer argues that, even though Harris has sent resumes to
many potential employers, she has unduly limited her job search
because of her status as a full-time student and effectively
removed herself from the work force.
A partially disabled employee is required to make
reasonable efforts to market his or her residual wage earning
capacity in order to receive continued benefits. See National
Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33
(1989). "In determining whether a claimant has made a
reasonable effort to market his remaining work capacity, we view
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the evidence in the light most favorable to . . . the prevailing
party before the commission." Id. at 270, 380 S.E.2d at 33.
"What constitutes a reasonable marketing effort depends on the
facts and circumstances of each case." Greif Companies
(GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993).
At the hearing, the employer proffered the testimony of
Barbara K. Byers, a Certified Rehabilitation Counselor, who
testified that with Harris' background and training, she is
employable in several entry-level positions in the medical
field. Byers testified that Harris is presently qualified to
work as a medical billing specialist without additional
training. Byers noted that an impediment to Harris finding
suitable employment, however, is her inability to work Monday,
Wednesday, and Friday mornings because of her full-time class
schedule.
We find that the commission did not err in determining
Harris adequately marketed her residual work capacity. The
commission found that Harris contacted, on average, at least two
employers per week. She actively searched computer databases
and newspaper classified advertisements. Although the
rehabilitation counselor testified that Harris' class schedule
was an obstacle in obtaining employment, Harris testified that,
if she found suitable employment that conflicted with her class
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schedule, she would withdraw from her classes. We find the
evidence sufficient to support the commission's finding that
Harris made a reasonable effort to market her residual capacity.
Accordingly, we affirm the commission's decision.
Affirmed.
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