Lourdes Iglesias v. QVC Suffolk Inc. and Liberty Insurance Corporation ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
Argued at Norfolk, Virginia
UNPUBLISHED
LOURDES IGLESIAS
MEMORANDUM OPINION*
v. Record No. 1292-18-1 JUDGE ROSSIE D. ALSTON, JR.
APRIL 16, 2019
QVC SUFFOLK INC. AND
LIBERTY INSURANCE CORPORATION
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Lourdes Iglesias, pro se.
Pietro F. Sanitate (Midkiff, Muncie & Ross, P.C., on brief), for
appellees.
Lourdes Iglesias (appellant) appeals the Workers’ Compensation Commission’s
(Commission) denial of her claim in which she alleged injury by accident and occupational
disease. Appellant specifically contends that her claim is not time-barred and argues that she
substantiated the causal link between her physical condition and her on-the-job exposure to an
animal. While the Commission erred when it determined that the occupational disease portion of
her claim was time-barred, we affirm the Commission’s denial of her claim on the merits.
I. BACKGROUND
Appellant was employed by QVC Suffolk Inc. (appellee) “in receiving as a warehouse
specialist” at all times relevant to this appeal. In that capacity, appellant unloaded trucks and
shelved company products while operating a TSP.1 The typical state of the warehouse included
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant described this machine as “heavy equipment” used to lift and shelve products.
molding boxes, a leaking roof, birds flying overhead, and animals, such as a fox and cat,
scurrying across the floor.
Over the weekend of August 25 and 26, 2012,2 while shelving company products,
appellant noticed a bat crawling on top of a container. After consulting with co-workers,
appellant, wearing protective rubber gloves, removed the bat and placed it into a box. At the
conclusion of her shift, appellant notified security of what occurred, exited the warehouse, and
secured the box in the back of her vehicle. Appellant then contacted the police, who ultimately
retrieved the bat.
Approximately two weeks later, appellant developed respiratory issues, including
difficulty breathing and a deep cough, as well as a low-grade fever, lethargy, and facial skin
irritation. Appellant’s symptoms prompted her to file an incident report with appellee on the
basis of her mold exposure and to seek medical attention from her primary care physician,
Dr. Monique Lee (Dr. M. Lee). At her initial visit on August 24, 2012, Dr. M. Lee observed that
appellant suffered from Dyspnea, rash, and other nonspecific skin eruption, as well as an allergic
reaction. Dr. M. Lee then referred appellant to a pulmonary specialist or an allergist for “mold
exposure.” Appellant was seen by Dr. Timothy Lee (Dr. T. Lee), on September 12, 2012.
Dr. T. Lee found that appellant contracted “[r]eactive airway disease, possibly secondary to
workplace mold exposure” and prescribed her antibiotics and an inhaler. He attached a workers’
compensation injury status report, advising that appellant “[r]eturn to regular work.” At her
follow-up appointment with Dr. T. Lee, he concluded that her “[r]eactive airway disease [was]
essentially resolved” and released her from his care. On December 18, 2012, appellant was seen
by Dr. Jeffrey Forman, to whom she was referred by Dr. M. Lee, for a “pulmonary nodule.” In
reciting her “[h]istory of present illness,” Dr. Forman referred to appellant’s exposure to mold
2
A review of the date of appellant’s exposure appears infra.
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and confirmed the presence of a pulmonary nodule. He scheduled a CT scan for appellant’s next
appointment. On January 4, 2013, appellant visited Dr. M. Lee, and her summary report
reflected that appellant underwent a CT scan the previous day; upon appellant’s request for an
evaluation with respect to mold exposure, Dr. M. Lee referred appellant to Dr. Matthew Tignor,
a specialist in infectious diseases. On January 25, 2013, appellant returned for a follow-up
appointment with Dr. Forman. He acknowledged the pulmonary nodule, reviewed her CT scans,
discussed her concerns, and agreed to see her in three months for a subsequent CT scan. At that
follow-up visit, which occurred on April 9, 2013, Dr. Forman notated that appellant had seen an
allergist as well as Dr. Tignor; however, appellant had refused the scheduled CT scan.
Consequently, Dr. Forman informed appellant that he could not help her and recommended that
she continue to see her allergist and Dr. Tignor. Accordingly, appellant was seen by
Dr. Vandana Patel, who administered a CT scan on April 11, 2014. While there were “no
pulmonary nodules or masses,” the CT scan revealed a “thick linear scar in the lingual.”
On August 28, 2017, appellant filed a claim for a lifetime award of medical benefits
predicated on the bat exposure, alleging injury by accident and occupational disease by injurious
exposure.3 At the evidentiary hearing, appellant testified. When questioned about the date of the
incident, appellant maintained that she worked the weekend shift, which began Saturday and
3
In 2012, appellant filed claims for workers’ compensation for respiratory issues
stemming from the mold exposure. The deputy commissioner denied appellant’s claims because
she failed to prove injury by accident, an occupational disease, or compensable ordinary disease
of life. Appellant did not seek review within thirty days; accordingly, the denial of her claims
became final. On August 29, 2017, appellant requested review of her 2012 claims and also filed
an application for a change-in-condition due to the mold and bat exposure. The deputy
commissioner dismissed the matter on the basis of res judicata, concluding that these claims
were identical to appellant’s 2012 claims. Appellant sought review of this determination. The
Commission affirmed, noting that it no longer had jurisdiction over the 2012 claims and finding
again that appellant failed to request review within thirty days; thus, the deputy commissioner’s
ruling became final. The Commission also agreed that appellant’s claim was barred on the basis
of res judicata. Iglesias v. QVC Suffolk, Inc., JCN VA00000658702 (VA Wrk. Comp. Jan. 22,
2018).
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continued into Sunday. She mentioned both August 26 and August 27, 2012, as relevant dates.
Indicating that the bat exposure occurred “during those times,” appellant specifically testified
that she was last exposed to the bat early on Sunday morning. Appellant contended that appellee
was aware of the incident because she discussed it with two employees, “Carol” in human
resources and “Anthony,” a security guard. According to appellant, she delayed filing this claim
because 1) some of her symptoms persisted, 2) she had experienced pain on the left side of her
back, and 3) her Medicaid coverage lapsed. Once appellant was told she had a scar on her lung,
she claimed that the scarring was caused by working in the warehouse. While reviewing her
medical records and conducting additional research, appellant discovered that exposure to the
excrement of bats and birds can cause illnesses. On cross-examination, appellant noted that
other employees also became ill. Appellant acknowledged that she did not notify appellee that
the bat exposure caused her physical condition but explained that she believed proceeding
through the workers’ compensation process was sufficient.
The deputy commissioner found appellant’s claim was time-barred and denied her
compensation. Appellant timely sought review of that determination. The Commission
affirmed, agreeing that appellant’s claim was time-barred and further stated “[m]oreover,
[appellant] has presented no evidence linking the handling of the bat to any of her medical
conditions.”
Now comes this appeal.
II. ANALYSIS
“In reviewing the [C]ommission’s judgment, we view the evidence in the light most
favorable to [appellee, the employer], the prevailing party below.” Wainwright v. Newport
News Shipbldg. and Dry Dock Co., 50 Va. App. 421, 430 (2007) (citing R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212 (1990)). Questions of law, such as “[w]hether a claim is barred
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by the statute of limitations,” merit de novo review. Tuck v. Goodyear Tire & Rubber Co., 47
Va. App. 276, 284 (2005) (quoting Tomes v. James City (Cty. of) Fire, 39 Va. App. 424, 430
(2002)). Findings of fact, “[i]f supported by credible evidence, . . . are binding on appeal. ‘The
fact that there is contrary evidence in the record is of no consequence if there is credible
evidence to support the [C]ommission’s finding.’” Samartino v. Fairfax Cty. Fire and Rescue,
64 Va. App. 499, 506 (2015) (internal citations omitted).
Considering the timeliness of appellant’s claim, “[t]he right to compensation under the
[workers’] compensation law is granted by statute, and in giving the right the legislature had full
power to prescribe the time and manner of its exercise.” Miller v. Locher Silica Corp., 12
Va. App. 1213, 1215 (1991) (quoting Winston v. City of Richmond, 196 Va. 403, 407 (1954)).
Further, “[t]he filing of a claim within the limitation period is jurisdictional. The burden is on
the claimant to prove compliance with the statute.” Via v. Citicorp Mortg., Inc., 10 Va. App.
572, 576 (1990) (internal citations omitted). With respect to the merits, “[w]hether a disease is
causally related to the employment and not causally related to other factors is such a finding of
fact.” Fairfax Cty. v. Espinola, 11 Va. App. 126, 129 (1990) (quoting Island Creek Coal Co. v.
Breeding, 6 Va. App. 1, 12 (1988)).
A. INJURY BY ACCIDENT
Pursuant to Code § 65.2-601, “[t]he right to compensation under this title shall be forever
barred, unless a claim be filed with the Commission within two years after the accident.”
Appellant’s claim was filed well beyond this two-year statute of limitations, and no exceptions to
the statute of limitations applied.4 Accordingly, we agree with the Commission that the injury by
accident portion of appellant’s claim was time-barred.
4
Those exceptions are 1) when “the employer fails to file the first report of accident and
such conduct operates to prejudice the rights of the employee with regard to filing the claim prior
to [its] expiration” pursuant to Code § 65.2-602, which was amended in 2019, 2) when “the
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B. OCCUPATIONAL DISEASE
Code § 65.2-406(A) sets forth statutes of limitation for particular occupational diseases as
well as for “all other occupational diseases.” Code § 65.2-406(A)(6). As appellant did not
allege any of the enumerated occupational diseases, we turn to subsection (A)(6).5 (A)(6)
provides that “[t]he right to compensation . . . shall be forever barred unless a claim is filed with
the Commission within . . . two years after a diagnosis of the disease is first communicated to the
employee or within five years from the date of the last injurious exposure in employment,
whichever first occurs.” Because appellant did not receive a diagnosis of an occupational
disease but rather complains of a collection of symptoms, we consider “the date of the last
injurious exposure.” “‘[I]njurious exposure’ means an exposure to the causative hazard of such
disease which is reasonably calculated to bring on the disease in question.” Code § 65.2-404. In
Espinola, we noted that
[a] claimant can meet the statutory standard either “by establishing
actual causation or aggravation of the disease or by showing that
employer is estopped from asserting the statute of limitations defense if [appellant] provides
unequivocal evidence that she refrained from filing . . . because employer misrepresented or
concealed material facts,” and 3) when the doctrine of “imposition” applies, which “requires a
threshold showing of unfairness: ‘[t]he doctrine focuses on an employer’s or the
[C]ommission’s use of superior knowledge of or experience with the Workers’ Compensation
Act or use of economic leverage, which results in an unjust deprivation to the employee of
benefits warranted under the Act.’” Tuck, 47 Va. App. at 284-85.
5
On brief, appellant claims she contracted “Histoplasmosis,” which is “[a] widely
distributed infectious disease caused by Histoplasma capsulatam and occur[s] frequently in
epidemics; usually acquired by inhalation of spores of the fungus of soil dust . . . .
[O]ccasionally, the primary disease progresses to produce localized lesions in [the] lung.”
Stedman’s Medical Dictionary 801 (26th ed. 1995). “Histoplasma capsulatam” is “[a]
dismorphic fungus species of worldwide distribution . . . [, and t]he organism’s natural habitat is
soil fertilized with bird and bat droppings, where it grows as a mold, fragments of which,
following inhalation, produce the primary pulmonary infection.” Id. Appellant also analogizes
the latent effects of this disease to those diseases contracted as a result of exposure to toxic dust
created by the September 11, 2001 attacks. Appellant did not present either of these contentions
to the Commission, thus, we will not consider them now for the first time on appeal. Williams v.
Gloucester (Cty. of) Sheriff’s Dep’t, 266 Va. 409, 411-12 (2003) (outlining the function and
effect of the contemporaneous objection rule as stated in Rule 5A:18).
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the exposure was of such duration and intensity that it generally
causes the disease in question, even though actual causation or
aggravation cannot be established in the claimant’s case.”
11 Va. App. at 131 (quoting Breeding, 6 Va. App. at 7).
Appellant testified that she worked the weekend shift during August 26 and 27, 2012. It
is not disputed that August 26 and 27 of 2012 fell on a Sunday and Monday. Accordingly,
appellant was mistaken in her testimony. That weekend shift thus would have fallen on August
25 and 26, 2012. Although appellant may have been uncertain regarding the specific dates she
worked, appellant testified unequivocally that she was last exposed to the bat on Sunday morning
when she placed the box containing the bat in her vehicle. According to our calculations, five
years from Sunday, August 26, 2012, is August 26, 2017. That date was a Saturday.
In neither the parties’ briefs, the deputy commissioner’s opinion, nor the Commission’s
opinion, do we find a reference to Code § 1-210, Virginia’s computation of time statute.
Pursuant to Code § 1-210(C),
[w]hen an act of the General Assembly specifies a maximum
period of time in which a legal action may be brought and the last
day of that period falls on a Saturday, Sunday, legal holiday, or
day or part of a day on which the clerk’s office is closed as
authorized by an act of the General Assembly, the action may be
brought on the next day that is not a Saturday, Sunday, legal
holiday, or day or part of a day on which the clerk’s office is
closed as authorized by an act of the General Assembly.
(Emphasis added).
Accordingly, appellant was permitted to file the occupational disease portion of her claim
as late as Monday, August 28, 2017. Turning to the record, appellant signed and dated her claim
August 25, 2017. The electronic date stamp on the left-hand side of her filed claim reflects “BR
08/28/2017.” On the bottom right-hand corner of the claim, the Virginia Workers’
Compensation Commission’s stamp reads “VWC AUG 28 2017 Indexing Tech J.” Because
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appellant filed her claim on August 28, 2017, the Commission erred as a matter of law when it
found that the entirety of appellant’s claim was time-barred.
Because appellant timely filed the occupational disease portion of her claim, we turn to
the merits.
An “occupational disease” is defined as “a disease arising out of and in the course of
employment, but not an ordinary disease of life to which the general public is exposed outside of
the employment.” Code § 65.2-400(A). “A disease shall be deemed to arise out of the
employment only if there is apparent to the rational mind, upon consideration of all the
circumstances,” including “[a] direct causal connection between the conditions under which
work is performed and the occupational disease.” Code § 65.2-400(B)(1).
In addition, “Code § 65.1-46.1 [now § 65.2-401] makes ordinary diseases of life
compensable in the same manner as occupational diseases if they are sufficiently connected to a
claimant’s employment.” Via, 10 Va. App. at 576 (citing Breeding, 6 Va. App. at 9). Code
§ 65.2-401 provides that “[a]n ordinary disease of life to which the general public is exposed
outside of the employment may be treated as an occupational disease . . . if each of the following
elements is established by clear and convincing evidence, (not a mere probability).” One such
element is “[t]hat the disease exist[] and ar[i]se out of and in the course of employment as
provided in § 65.2-400 with respect to occupational disease and did not result from causes
outside of the employment.” Code § 65.2-401(1).
Thus, when claiming workers’ compensation as a result of occupational disease or an
ordinary disease of life compensable as an occupational disease, appellant was required to
demonstrate that her condition “ar[o]se out of employment” as defined in Code § 65.2-400. See
Code §§ 65.2-400(B) and 65.2-401(1) (noting that this must be established by clear and
convincing evidence). To do so, appellant must establish a “direct causal connection between
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the conditions under which work is performed and the occupational disease.” Code
§ 65.2-400(B)(1). The Commission found that appellant failed to meet her burden, stating that
“[appellant] presented no evidence linking the handling of the bat to her medical conditions.”
Appellant did not assign error to this finding; “[t]hus, that finding is binding and conclusive upon
us.” See, e.g., Sturtz v. Chesapeake Corp. of Virginia and Pacific Emp’rs Ins. Co., 38 Va. App.
672, 675 n.1 (2002). Although appellant testified that such a causal connection existed,
appellant’s belief focused on her independent research and her personal review of her medical
records. Appellant is not a physician, and no medical evidence in the record supported
appellant’s contention. Her physical condition was never attributed to the bat exposure, and
none of her medical records even contained a reference to her bat exposure. “Medical evidence
is . . . subject to the [C]ommission’s consideration and weighing.” Waynesboro (City of) Police
v. Coffey, 35 Va. App. 264, 268 (2001) (quoting Hungerford Mech. Corp. v. Hobson, 11
Va. App. 675, 677 (1991)). In addition, “[t]he fact that there is contrary evidence in the record is
of no consequence if there is credible evidence to support the [C]ommission’s finding.’”
Samartino, 64 Va. App. at 506 (quoting Wagner Enters., Inc., v. Brooks, 12 Va. App. 890, 894
(1991)).
Accordingly, the Commission’s determination was supported by the record. The
applicable standard of review warrants an affirmance of the Commission’s determination.
III. CONCLUSION
The Commission correctly held that the injury by accident portion of appellant’s claim
was time-barred. The Commission erred as a matter of law when it found that the occupational
disease portion of appellant’s claim was time-barred. However, the Commission ultimately
made a determination on the merits, finding that appellant failed to establish that her physical
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condition arose out of her employment. That determination stood unchallenged and was
supported by credible evidence. Accordingly, we must affirm.
Affirmed.
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