Mitre Corp. v. Christina Gourzis ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued by Teleconference
MITRE CORPORATION AND
HOME INDEMNITY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1183-96-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 25, 1997
CHRISTINA GOURZIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Edward H. Grove, III (Brault, Palmer, Grove,
Zimmerman, White & Mims, on briefs), for
appellants.
Roger L. Williams (Vasiliki Moudilos;
Williams & Pierce, on brief), for appellee.
Employer, Mitre Corporation, appeals the commission's award
of benefits to claimant, Christina Gourzis. Employer contends
that the evidence is insufficient to support the commission's
finding that claimant suffered a compensable ordinary disease of
life. For the reasons stated below, we affirm.
I.
Claimant was employed as a copier operator with employer
from January 1987 until December 4, 1992. From September 1992
until December 4, 1992, she operated a particular copy machine in
a windowless room with a floor area eighteen feet square. The
room also contained another, smaller copy machine. Claimant
spent approximately nine hours per day in the room where both
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
machines ran nearly constantly. She testified that the room was
hot, stuffy, and smelly as a result of the copiers and that the
air was not clear. Three of claimant's coworkers also testified
that the room was hot and smelly. The smell was described as
"weird" and "toxic." One coworker testified that the odor
intensified during the week of December 4, 1992 and was
especially bad on that day. Another coworker testified that the
odor grew worse as the room grew hotter. A third described his
difficulty breathing in the room and testified that he
experienced respiratory problems sixty percent of the times he
entered.
In mid-November 1992, claimant began having physical
problems she had not previously experienced, including tightness
in her chest, pain, an upset stomach, and headaches. Her
symptoms dissipated while she was away from work over the
Thanksgiving holiday.
Upon her return to work, the first week of December,
claimant had problems with the copier. Specifically, she noticed
that toner had leaked into the machine. On December 3, a copier
technician inspected the copier; claimant testified that when the
technician opened the machine it became evident that toner had
spread everywhere inside. Claimant noticed that when she blew
her nose, the discharge contained black particles. On December
4, claimant became very ill at work. She experienced chest pain,
dryness in her throat, and persistent vomiting. Claimant had no
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history of asthma or respiratory problems.
On December 7, claimant was examined by her family
physician, Dr. Michael Trahos, who diagnosed her illness as a
chemically induced bronchitis. On December 10, claimant was
admitted to the hospital, where, among others, Dr. Timothy C.
Bayly evaluated her. Dr. Bayly diagnosed a third degree burn in
claimant's trachea and reported that the problem underlying
claimant's condition was one of chemical toxicity resulting from
exposure to overheated chemicals. Claimant was later referred to
Dr. Rosemary K. Sokas who diagnosed occupationally induced
asthma, an acute tracheal ulceration, and an anxiety disorder
precipitated by the first two events.
Drs. Trahos and Sokas specifically noted that claimant had
no preexisting respiratory condition. Dr. Sokas opined that
claimant's condition resulted from exposure to chemical irritants
from the copier at work. In addition to ozone generated by the
copy machine, Dr. Sokas specifically identified the chemical
components of the toner, developer, and fuser oils as elements
contributing to claimant's condition and noted that claimant's
exposure to the chemicals was enhanced by the temperature at
which the copier ran, by the leakage, and by the condition of the
workplace. Likewise, Drs. Trahos and Bayly opined that
claimant's condition resulted from chemical exposure.
II.
The parties do not dispute that claimant's condition is an
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ordinary disease of life and that compensation is governed by
Code § 65.2-401. To be compensated for an ordinary disease of
life, a claimant must prove,
by clear and convincing evidence, to a
reasonable medical certainty, that it arose
out of and in the course of employment as
provided in § 65.2-400 . . . and did not
result from causes outside of the employment,
and that: . . . [i]t is characteristic of the
employment and was caused by conditions
peculiar to such employment.
Code § 65.2-401. See also Island Creek Coal Co. v. Breeding, 6
1
Va. App. 1, 11, 365 S.E.2d 782, 788 (1988).
1
Code § 65.2-400(B) provides:
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:
1. A direct causal connection between
the conditions under which work is performed
and the occupational disease;
2. It can be seen to have followed as a
natural incident of the work as a result of
the exposure occasioned by the nature of the
employment;
3. It can be fairly traced to the
employment as the proximate cause;
4. It is neither a disease to which an
employee may have had substantial exposure
outside of the employment, nor any condition
of the neck, back or spinal column;
5. It is incidental to the character of
the business and not independent of the
relation of employer and employee; and
6. It had its origin in a risk
connected with the employment and flowed from
that source as a natural consequence, though
it need not have been foreseen or expected
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"Whether a disease is causally related to the employment and
not causally related to other factors is . . . a finding of
fact." Breeding, 6 Va. App. at 12, 365 S.E.2d at 788. On
appellate review, we must construe the evidence in the light most
favorable to the prevailing party below, claimant in this
instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986). Factual findings by the
commission that are supported by credible evidence are conclusive
and binding upon this Court. Rose v. Red's Hitch & Trailer
Serv., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990). The
presence 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).
We find that credible evidence in the case supports the
commission's finding that claimant's ordinary disease of life is
compensable. The medical records of Drs. Trahos, Sokas, and
Bayly, as well as the testimony of claimant, corroborated by her
coworkers, concerning the heat, the leakage, and the odor in the
room, support the commission's finding that claimant's
respiratory problems, tracheal ulcer, and stress disorder arose
out of her employment and not as a result of other,
non-work-related factors. The same evidence supports the
(..continued)
before its contraction.
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commission's finding that claimant's condition was
"characteristic of the employment and caused by the conditions
peculiar to the employment." See Ingersoll-Rand Co. v. Musick, 7
Va. App. 684, 686-87, 376 S.E.2d 814, 816 (1989). In Musick,
this Court interpreted the Act as providing that
an employee has a compensable disease when he
[or she] proves that [the] disease was, in
fact, developed at work as a result of the
usual conditions to which he was exposed by
his employment. If the evidence shows a
recognizable link between the disease and
some distinctive feature of the claimant's
job or work environment, we believe, if other
qualifications are met, the legislature
intended recovery.
Id. at 687, 376 S.E.2d at 816. 2
In support of its position, employer relies on the testimony
of the copier technicians who serviced the copier during the Fall
of 1992 and found nothing wrong. However, no technician was
2
The Musick Court provided the following example:
An office worker exposed to asbestos at work,
and who contracts asbestosis as a result of
the exposure, would have a compensable
ordinary disease of life because of the
context in which the asbestosis was
developed. However, if those diseases were
developed outside of the workplace, they
would not be compensable diseases. Thus, the
legal test of whether a disease is "peculiar
to the employment" is one of proof: if the
claimant can affirmatively prove that he
developed a disease because of the conditions
of his workplace, he may receive
compensation. If he cannot prove that the
disease is a result of exposure in the
workplace, he cannot recover.
7 Va. App. at 687 n.1, 376 S.E.2d at 816 n.1.
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present on December 4, 1992, the day claimant became ill, and
none of the technicians was exposed to the conditions of the
workplace to the extent claimant was so exposed. Furthermore,
claimant's testimony concerning the toner leakage and the odor,
heat, and air quality in the room was corroborated by her
coworkers, and any conflict in the testimony was resolved by the
commission.
Employer also relies on the fact that Dr. Bayly's diagnosis
was predicated, in part, on claimant's report that the copier ran
at 460 degrees. The copier's specifications called for it to
operate between 345-355 degrees. One of the copier technicians
testified that the copier could not have reached 460 degrees and
that the copier appeared to be running at 358 degrees. However,
as the commission found, the opinion of one of claimant's
experts, Dr. Sokas, was based on an operating temperature of 358
degrees. Furthermore, the opinions of claimant's physicians were
based on the machine's temperature in conjunction with the toner
leakage; they were not based solely on the premise that the
machine was running at an excessive temperature.
Employer also relies on results of testing completed in the
Spring of 1995 to support its contention that credible evidence
does not support a chemical exposure in December 1992. The
results of the 1995 testing are even more tenuous than the
testimony of the technicians concerning the possibility of
chemical exposure in December 1992. Not only were the tests
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conducted over two years later but, by the time they were
conducted, the copier had been moved to a different location.
Furthermore, even assuming the 1995 tests shed some light on the
condition of the copier in 1992, the fact that the ozone readings
were within OSHA standards does not render the finding of a
chemical exposure incredible, especially since claimant's
physicians did not consider the exposure solely related to ozone.
Employer's argument that ozone levels in the ambient air are as
high as those found around the copier is, for the same reasons,
similarly not persuasive.
Finally, employer argues that the commission should have
credited the opinion of its medical witness, Dr. Robert
Swotinski, which contradicted the opinions of claimant's
physicians. It is well settled, however, that a finding of the
commission based on conflicting medical opinion, if credible, is
conclusive and binding on appeal. E.g., Dep't of State Police v.
Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985).
The decision of the commission is, accordingly, affirmed.
Affirmed.
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