Hercules, Inc. and Aqualon Co. v. Allen W. McLean ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
HERCULES, INC. AND
AQUALON COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2747-01-2 JUDGE JAMES W. BENTON, JR.
MAY 14, 2002
ALLEN W. McLEAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gretchen M. Greisler (James G. Muncie, Jr.;
Midkiff, Muncie & Ross, P.C., on brief), for
appellants.
B. Mayes Marks, Jr. (Marks and Williams,
P.C., on brief), for appellee.
The issues raised by this appeal are whether the Workers'
Compensation Commission erred in finding (1) that Allen W.
McLean proved by a preponderance of the evidence he was totally
disabled and (2) that McLean's disability was causally related
to his injury by accident. We affirm the commission's award of
benefits to McLean.
I.
"On appeal, we view the evidence in the light most
favorable to [McLean], the party prevailing before the
commission." Great Eastern Resort Corp. v. Gordon, 31 Va. App.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
608, 610, 525 S.E.2d 55, 56 (2000). So viewed, the evidence
proved McLean worked as a senior lab analyst for Hercules, Inc.,
a chemical manufacturing company, when he experienced an injury
by accident. McLean and the employer signed a memorandum of
agreement, which indicates that on October 26, 1998, McLean
"inhaled an excess amount of nitric-acid fumes causing a
chemical induced asthmatic bronchitis." The commission approved
the memorandum of agreement and awarded McLean temporary partial
disability benefits beginning October 27, 1998 and medical
benefits. In July of 2000 and February of 2001, McLean filed
change-in-condition claims requesting temporary total disability
benefits from July 17, 2000 through September 4, 2000 and
continuing from January 19, 2001.
At the evidentiary hearing, the deputy commissioner recited
various stipulations, including the parties' agreement that
McLean was totally disabled from July 17 through September 4,
subject to the employer's defense that McLean's disability was
not causally related to the October 26, 1998 injury by accident.
In addition to challenging the causal connection, the employer
alleged that McLean was not totally disabled beginning January
19, 2001. Presenting no witnesses, both parties submitted the
case for decision and relied on the medical reports and the
stipulations. Upon this evidence, the deputy commissioner found
that McLean's disability was causally related to the October 26,
1998 injury by accident and that McLean proved temporary total
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disability from July 17, 2000 through September 4, 2000 and
beginning January 19, 2001 and continuing.
The employer sought review by the commission only on the
issues whether McLean was totally disabled beginning January 19,
2001 and whether the disability was causally related to the
October 26, 1998 injury by accident. Upon its review of the
medical evidence, the commission found that on November 2, 1998,
Dr. Peter N. Ault, a physician at the employer's first aid
station, diagnosed McLean as suffering from occupational
exposure to nitric acid fumes causing asthmatic bronchitis. On
February 24, 2000, Dr. Ault further opined that McLean was
suffering from reactive airway disease resulting from this
exposure. Dr. Ault removed McLean from work on February 24,
2000 and determined on February 28, 2000 that McLean was
"totally incapacitated at this time." A pulmonary function
test, which Dr. Ault ordered in June 2000, indicated that
McLean's data were "suggestive of restrictive lung disease."
Dr. Ault returned McLean to sedentary work with restrictions on
September 5, 2000. In each instance, Dr. Ault opined that
McLean's condition was causally related to the October 26, 1998
injury by accident.
Dr. Alpha A. Fowler, a pulmonary internist, examined McLean
and opined on November 12, 1999, that McLean
continues to manifest problems that are
likely downstream from nitric acid exposure
one year ago . . . . [I]t is now time for
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the patient to discontinue his work at the
plant and to come out of any situation that
would result in fume exposure because of the
potential for long-term devastating
consequences . . . should exposure continue.
On March 31, 2000, Dr. Fowler opined McLean was "disabled and
unable to work." Dr. Fowler also opined that "[d]ue to the
nonspecific nature of his reactivity to the environment I find
that increased exposure will only result in increasing problems
and likely deteriorating health status."
In March 2000, Dr. Ming S. Chiu, a pulmonary internist,
examined McLean on various occasions and reported that McLean
was not a smoker, that McLean had no prior respiratory symptoms
until the exposure to the chemical on October 26, 1998, that
McLean suffered from reactive airway disease, and that McLean
was "quite symptomatic." Dr. Chiu also noted that McLean's
condition had "retrogressed." In September 2000, Dr. Chiu
reported that McLean's cough was worsening and again noted
"reactive airway disease." In a letter dated January 19, 2001,
Dr. Chiu reports that McLean has been under his care for
reactive airway disease, that McLean has persistent cough and
shortness of breath, and that McLean "is totally disabled from
any type of work."
The commission found that McLean became totally disabled as
of January 19, 2001 and that his condition was causally related
to the October 26, 1998 work incident. This appeal followed.
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II.
The employer contends "[t]he medical evidence . . . shows
that [McLean] was not totally disabled as of January 19, 2001."
This contention lacks merit.
Our review of the disability issue is
governed by familiar principles. Factual
findings made by the Commission are
"conclusive and binding" and a question
raised by conflicting medical opinion is a
question of fact. We do not judge the
credibility of witnesses or weigh the
evidence on appeal. "[I]t is our duty to
determine whether credible evidence supports
the Commission's finding . . . and, if such
evidence exists, to sustain the finding."
Celanese Fibers Co. v. Johnson, 229 Va. 117, 120-21, 326 S.E.2d
687, 690 (1985) (citations omitted).
In its role as fact finder, the commission was entitled to
weigh the medical evidence. Indeed, the principle is long
standing that "[m]edical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). The commission reviewed the medical
evidence and found that both Dr. Fowler and Dr. Chiu opined that
McLean was totally disabled. Dr. Chiu specifically reported on
January 19, 2001, that McLean "has been under [Dr. Chiu's] care"
and "is totally disabled from any type of work." Thus, credible
evidence supports the commission's finding that McLean was
totally disabled at that date and continuing.
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III.
The employer next contends that McLean's "alleged
disability is not causally related to his industrial accident."
This contention likewise lacks merit.
On our review, we apply the following standards:
The commission's determination of
causation is a finding of fact. The factual
findings of the commission are conclusive
and binding on appeal if supported by
credible evidence in the record. "The fact
that there is contrary evidence in the
record is of no consequence if there is
credible evidence to support the
commission's finding." "This rule applies
when an expert's opinion contains internal
conflict." "Likewise, the [c]ommission's
conclusions upon conflicting inferences,
legitimately drawn from proven facts, are
equally binding on appeal." "In determining
whether credible evidence exists, the
appellate court does not retry the facts,
reweigh the preponderance of the evidence,
or make its own determination of the
credibility of the witnesses."
Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552
S.E.2d 372, 375 (2001) (citations omitted).
The employer argues that the pulmonary function test proves
McLean's disability was "the result of his obesity or
extraparenchymal restriction." That report contains the
following item:
IMPRESSION: The [test] data is suggestive
of restrictive lung disease, flow volume
also supports this finding. It seems like
the patient has an extraparenchymal cause of
restriction. The differential diagnosis
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includes obesity versus musculoskeletal
disorders. I would suggest to correlate
clinically.
The report does not indicate that McLean's exposure to the
nitric acid did not damage his lungs. As the deputy
commissioner found, this report does not indicate "a clear
opinion whether [McLean's] disability is caused by the work
accident." The commission found that the pulmonary test results
were merely "suggestive of restrictive lung disease" and found
that the report does not contradict the finding that McLean's
injury was caused by the work incident.
Moreover, even if we view this report, as does the
employer, as establishing a conflict in the medical evidence, "a
finding by the Commission upon conflicting facts as to causal
relationship is conclusive and binding on this Court, absent
fraud, when such determination is supported by competent,
credible evidence." C.D.S. Constr. Services v. Petrock, 218 Va.
1064, 1070, 243 S.E.2d 236, 240 (1978). The commission found
that "[e]ach physician noted [McLean's] work-related exposure to
nitric acid in 1998." The reports of Dr. Chiu and Dr. Fowler
make that diagnosis and clearly support the commission's
finding. Thus, credible evidence in the record establishes that
McLean's exposure to chemicals caused airway disease. See
Russell Stover Candies v. Alexander, 30 Va. App. 812, 826-28,
520 S.E.2d 404, 411-12 (1999) (affirming award to an employee
suffering from reactive airway disease as a result of exposure
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to bleach). Significantly, the medical reports indicate McLean
"had no prior history of respiratory symptoms until the exposure
to the chemical."
The commission's findings are supported by each of the
physician's findings, including Dr. Ault's reports. The record
establishes that after Dr. Ault received the pulmonary test
report, he reported on August 31, 2000 that McLean had "reactive
airway disease" and that it was due to his "occupational
injury." He made no finding attributing McLean's injury to any
other cause. Indeed, his opinions indicate that when he
returned McLean to sedentary work in September 2000 McLean's
condition was causally related to McLean's "work-related
exposure to nitric acid fumes of October 26, 1998."
We hold, therefore, that credible evidence in the record
supports the commission's award.
Affirmed.
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