Capital Truck Center v. Charles P. Highlander, Sr. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
CAPITAL TRUCK CENTER
MEMORANDUM OPINION * BY
v. Record No. 0595-95-2 JUDGE LARRY G. ELDER
JANUARY 23, 1996
CHARLES P. HIGHLANDER, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William F. Karn (William B. Pierce, Jr.;
Williams & Pierce, on briefs), for appellants.
Laura L. Geller (Geoffrey R. McDonald;
McDonald & Snesil, P.C. on brief), for
appellee.
Capital Truck Center (employer) appeals the Workers'
Compensation Commission's (commission) award of benefits to
Charles P. Highlander, Sr. (claimant) for disability due to the
occupational disease of "contact allergic dermatitis." Employer
contends (1) sufficient evidence did not establish claimant
suffered from a new occupational disease, instead of an
aggravation of a pre-existing condition; and (2) the commission
erred in failing to find claimant voluntarily exposed himself to
work conditions which he was warned would lead to his condition
becoming symptomatic. Because the commission committed no error,
we affirm its decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
FACTS
In 1979, the commission determined claimant had recurring
"contact dermatitis" as a result of his employment as a diesel
mechanic with a former employer. Accordingly, the commission
awarded claimant temporary total disability benefits for two
separate periods during 1979. As early as 1978, claimant's
treating physician, Dr. L. William Kelly, Jr., and other
physicians instructed claimant not to work in an environment that
would expose him to diesel fuel, chromates, brake fluid, or
antifreeze.
Despite these instructions, claimant accepted a job as a
diesel engine mechanic with employer on approximately May 11,
1984. From May 11, 1984 to August 1993, claimant experienced
occasional problems with dermatitis. In August 1992, after he
attended a week long diesel fuel school, claimant's condition
worsened. On August 11, 1993, claimant filed a claim alleging
the occupational disease "contact allergic dermatitis."
Medical records reveal claimant received dermatological care
from Dr. Kelly for a period of twenty years. In 1979, Dr. Kelly
diagnosed claimant as having "contact dermatitis hands & feet."
Again, in 1981, Dr. Kelly stated claimant suffered from "eczema
hands and feet [with] contact dermatitis." By letter dated
August 11, 1993, Dr. Kelly provided the following diagnosis of
claimant's condition:
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[Claimant] has been followed in this office since April
of 1972. He has a long history of contact, irritant
dermatitis involving his hands and feet. . . . In
March, 1993, his skin eruption changed to contact
allergic dermatitis with much more severe swelling and
erythema and blister formation.
In April 1993, Dr. William P. Jordan, Jr. also examined
claimant and concluded that while there were "suggestions that
this could be an allergic contact dermatitis," a diagnosis of
contact irritant dermatitis was appropriate. Dr. Jordan noted
claimant's dermatitis entered a thirteen year remission before it
returned in August 1992. In March 1994, Dr. James F. Robinson
examined claimant and stated that he believed claimant's
condition was "really the same problem that he has been having
since 1972."
The deputy commissioner denied claimant's application for
benefits, after finding his condition was an aggravation of his
pre-existing disease and not a new occupational disease. The
commission disagreed and awarded benefits, finding claimant
suffered from a new occupational disease.
II.
NEW DISEASE
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
commission's factual findings will be upheld on appeal if
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)(citation
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omitted). "[I]t is fundamental that a finding of fact made by
the [c]ommission is binding and conclusive upon this [C]ourt on
review. A question raised by conflicting medical opinion is a
question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714,
347 S.E.2d 532, 533 (1986). Finally, "[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, 215 (1991).
The record contains credible evidence that claimant
developed a new occupational disease in March 1993 and that he
did not suffer from an aggravation of his pre-existing dermatitis
condition. Of greatest import to our analysis is Dr. Kelly's
August 11, 1993 letter, which specifically noted the onset of a
disease different from claimant's prior condition of contact
irritant dermatitis. Dr. Kelly stated that beginning in March
1993, claimant's skin eruptions changed to contact allergic
dermatitis with much more severe swelling and erythema and
blister formation. Claimant testified that his symptoms worsened
after the completion of diesel fuel school in August 1992, with
physical manifestations including larger blisters and the
appearance of puss.
Although other examining physicians did not arrive at a
positive diagnosis of contact allergic dermatitis, where conflict
in medical opinions exists, the general rule is that greater
weight is accorded the treating physician's (Dr. Kelly) opinion
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when he is positive in his diagnosis. Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572
(1986)(citations omitted). Moreover, Dr. Robinson did not rule
out a diagnosis of contact allergic dermatitis. Furthermore, Dr.
Jordan stated, "[t]here are irregular patches and suggestions
that this could be a contact allergic dermatitis." The
commission considered all reports of the doctors. We cannot say
the commission erred in relying on Dr. Kelly's positive medical
opinion that in March 1993 claimant contracted contact allergic
dermatitis. Contact allergic is an occupational disease
different from irritant dermatitis.
III.
WILFUL EXPOSURE TO HARMFUL WORKPLACE ENVIRONMENT
First, we disagree with claimant that Rule 5A:18 bars
employer from raising this issue on appeal. The record shows
that the issue was generally considered at the hearing; employer
raised it on brief before the commission; and Commissioner Tarr,
who dissented from the commission's opinion, directly addressed
it.
Reaching the merits of the issue, the record reveals
claimant's physicians warned him that his dermatitis condition
would be exacerbated by exposure to diesel fuel, chromates, and
other such chemicals. However, from 1979 through 1992, claimant
worked as a diesel mechanic relatively symptom free from contact
irritant dermatitis. Furthermore, as discussed in Section II,
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claimant developed a different dermatitis condition as of March
1993. While this new condition, contact allergic dermatitis,
closely resembled claimant's pre-existing condition, contact
irritant dermatitis, the commission, citing Attorney's Textbook
of Medicine ¶65A.11 and ¶65A.12, found the two conditions
distinguishable. Therefore, we cannot say the commission erred
in finding claimant's disease was not the expected result of
exposure to his workplace environment about which he had been
warned.
Accordingly, we affirm the commission's decision.
Affirmed.
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