COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
MARLEY MOULDINGS, INC. and
CONTINENTAL CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0755-95-3 JUDGE JAMES W. BENTON, JR.
APRIL 23, 1996
FREDA W. ROTENBERRY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ramesh Murthy (Penn, Stuart, Eskridge &
Jones, on brief), for appellants.
Ginger Jonas Largen (J. D. Morefield;
Morefield, Kendrick, Hess & Largen, P.C., on
brief), for appellee.
The employer, Marley Mouldings, Inc., contends that the
commission erred in concluding that Freda W. Rotenberry proved by
clear and convincing evidence that her asthma was a compensable
ordinary disease of life. See Code § 65.2-401. We affirm the
award.
I.
On appeal, we view the evidence in the light most favorable
to Rotenberry because she prevailed before the commission. 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 Rotenberry
began working for Marley in 1975. She fed mouldings through a
paint machine and was constantly exposed to paint, paint thinner
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fumes, and sawdust.
In 1984 Rotenberry began to suffer from allergies and
sinusitis which caused wheezing in the springtime similar to hay
fever. She consulted Dr. James E. McDowell, her family
practitioner, who "treated [her] with some medication at that
time and it seemed to clear up." Rotenberry began experiencing
severe breathing problems in 1985. Dr. McDowell testified that
he first treated her for severe breathing problems in January
1985 and later that year hospitalized her for a chest infection.
On March 15, 1990, Dr. McDowell diagnosed Rotenberry as having
"asthma/precipitated by odor exposure." Dr. McDowell prescribed
several medications for Rotenberry, but when her problems showed
no signs of improvement, he referred her to Dr. Donald Zedalis,
an allergist.
Dr. Zedalis initially opined that Rotenberry's symptoms were
"strongly consistent with allergic asthma (grasses), work
exposure, and her husband's heavy cigarette smoking habit," with
her sinusitis causing further problems. In 1993, following
testing and treatment Dr. Zedalis recommended that Rotenberry
leave her job permanently due to her asthma. Dr. Zedalis opined
that "Rotenberry's condition is an outcome of an occupationally-
related disorder."
At the employer's request, Dr. J. Dale Sargent, a
pulmonologist, examined Rotenberry and concluded that
Rotenberry's employment exacerbated her asthma but was not caused
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by her employment. Dr. Gregory Fino, a pulmonologist, examined
the medical records of the other doctors at the employer's
request and examined occupational health and safety reports. He
concluded that Rotenberry's asthma "is a disease of the general
medical population and it has nothing to do with her workplace."
Dr. Zedalis reviewed Dr. Fino's report and the same
additional information and disagreed with his conclusions. Dr.
Zedalis conceded that none of the chemicals to which Rotenberry
was exposed contained a hypersensitivity agent known to cause
asthma. He noted that "the list of such agents has rapidly
expanded over the recent past, often requiring exhaustive
investigation before it could be added to the list of known
substances that cause occupationally-related asthma." Based upon
extensive testing and his treatments, he concluded that
Rotenberry's asthma was work related and not pre-existing asthma
exacerbated by exposure to chemicals.
II.
For an ordinary disease of life to be treated as a
compensable occupational disease, Rotenberry had to prove, by
clear and convincing evidence, to a reasonable degree of medical
certainty, that her asthma arose out of and in the course of her
employment, did not result from causes outside of her employment,
is characteristic of her employment, and was caused by the
conditions peculiar to her employment. Code § 65.2-401. See
Teasley v. Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50,
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415 S.E.2d 596, 598 (1992). "'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) (quoting Island
Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788
(1988)). The existence of "contrary evidence in the record is of
no consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
The opinions of Doctors Zedalis and McDowell constitute
credible evidence to support the commission's findings. In its
role as fact finder, the commission was entitled to accept the
opinions of Dr. Zedalis and Dr. McDowell and to discount the
opinions of Dr. Sargent and Dr. Fino. "Questions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989).
Dr. Sargent examined Rotenberry on one occasion at
employer's request, and Dr. Fino merely reviewed the record at
employer's request. They were not the attending physicians. In
cases of conflicting medical evidence, "'[t]he general rule is
that when an attending physician is positive in his diagnosis of
a disease, great weight will be given by the courts to his
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opinion.'" Pilot Freight Carriers, Inc., Inc. v. Reeves, 1 Va.
App. 435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted).
The commission's decision to accept the unqualified opinions of
Dr. Zedalis or Dr. McDowell withstands the employer's challenge.
Their opinions were credible and sufficient to prove clearly and
convincingly that Rotenberry's asthma was occupationally related.
For these reasons, we affirm the commission's decision.
Affirmed.
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