United Airlines, Inc. v. Helme v. Walter , 24 Va. App. 394 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
UNITED AIRLINES, INC.
OPINION BY
v. Record No. 2156-96-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 18, 1997
HELME V. WALTER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Elizabeth A. Zwibel (Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellant.
Helme V. Walter, pro se.
On appeal from a decision of the Workers' Compensation
Commission awarding Helme V. Walter medical benefits, United
Airlines contends that the commission erred (1) in determining
that Ms. Walter's photosensitivity was a compensable disease, and
(2) in finding that Ms. Walter had proved by clear and convincing
evidence that her photosensitivity resulted from her employment
by United Airlines. We do not address United Airlines' second
contention because the Supreme Court's decision in The Stenrich
Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), compels our
holding that gradually incurred photosensitivity is a
noncompensable cumulative trauma or injury. See Allied Fibers v.
Rhodes, 23 Va. App. 101, 474 S.E.2d 829 (1996). Accordingly, we
reverse the commission's award and dismiss Ms. Walter's claim.
Ms. Walter has worked as a reservation agent for United
Airlines for approximately six years. On August 25, 1995, she
moved to a new work station, which was equipped with bright
fluorescent lighting. At that time, her eyes began to burn.
Within a week, she noticed darkening of a mole on her arm,
developed speckles and coloration on her arms, and experienced
joint pains and visual difficulty.
In awarding Ms. Walter medical benefits, the commission
relied upon the medical opinions of Dr. Nancy V. Bruckner and Dr.
Alan N. Moshell, both of whom diagnosed Ms. Walter as suffering
from photosensitivity, defined as an "abnormal reactivity of the
skin to sunlight." The Sloane-Dorland Annotated Medical-Legal
Dictionary 551 (1987). Based upon Dr. Moshell's March 27, 1996
deposition, the commission held that Ms. Walter's condition was a
disease, and that it resulted from long-term exposure to high
intensity fluorescent lighting at her workplace.
In Jemmott, the Supreme Court rejected a definition of
disease that
"'is so broad as to encompass any bodily
ailment of whatever origin [and] would
make unnecessary and meaningless the
[injury-by-accident and occupational disease]
categories specifically set forth in the
Act.'"
Jemmott, 251 Va. at 198, 467 S.E.2d at 801-02 (citations
omitted). The Court held that whether a claimant suffers from a
compensable disease remains a mixed question of law and fact, and
"just because a doctor opines that a particular impairment is a
disease does not necessarily make it so." Id. at 198, 467 S.E.2d
at 801. In dismissing the commission's award of benefits, the
Supreme Court held that
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job-related impairments resulting from
cumulative trauma caused by repetitive
motion, however labeled or however defined,
are, as a matter of law, not compensable
under the present provisions of the Act."
Id. at 199, 467 S.E.2d at 802. The Court went on to say:
[T]he opinion represents a clear refusal "to
broaden the scope of the Act to include
job-related impairments arising from
repetitive motion or cumulative trauma . . .
[and] we [have] held that gradually incurred
traumatic injuries or cumulative trauma
conditions were not compensable under the
existing injury by accident-occupational
disease dichotomy."
Id. at 199, 467 S.E.2d at 802 (quoting Merillat Indus., Inc. v.
Parks, 246 Va. 429, 433, 436 S.E.2d 600, 602 (1993)) (emphasis
added).
In Rhodes, we considered an award for hearing impairment
caused by exposure to noise at work. In concluding that a
hearing loss from cumulative noise exposure is not a disease
under the Act, we noted that:
The Supreme Court's holding [under Jemmott]
is clear and unequivocal, and leaves no doubt
that in Virginia cumulative trauma
conditions, regardless of whether they are
caused by repetitive motion, are not
compensable under the Act.
Rhodes, at 104, 474 S.E.2d at 830.
Following Jemmott and Rhodes, we conclude that Ms. Walter's
photosensitivity, resulting from cumulative exposure to radiation
by fluorescent lights, is a gradually incurred injury and not an
industrial disease within the meaning of the Workers'
Compensation Act. Thus, Ms. Walter's photosensitivity is not
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compensable. Accordingly, we reverse the commission's award of
benefits and dismiss the claim.
Reversed and dismissed.
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