James T. Jones v. E.I. Dupont Denemours & Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
JAMES T. JONES
OPINION BY
v. Record No. 1356-96-2 JUDGE NELSON T. OVERTON
JANUARY 21, 1997
E.I. DUPONT DE NEMOURS & COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kevin W. Ryan (Gary W. Kendall; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C.,
on brief), for appellant.
Bruin S. Richardson, III (Wood W. Lay;
Hunton & Williams, on brief), for appellee.
James T. Jones appeals the Workers' Compensation
Commission's decision denying him medical benefits. For the
reasons stated, we reverse.
Jones filed a claim for an occupational disease contracted
as a result of his exposure to asbestos in the course of his
employment with E.I. DuPont de Nemours & Company (employer).
After a hearing, the deputy commissioner denied his claim for a
permanent scheduled loss under Code § 65.2-503(B)(17):
In terms of asbestos caused pleural plaque
and diaphragmatic plaque, none of the
physicians have provided an analysis
sufficient to conclude, with any degree of
probability or likelihood, the extent of this
condition or its medical characterization.
Without such an analysis, it would be mere
speculation to draw a conclusion regarding
the claimant's pleural condition and whether
or not it amounts to a stageable level of
asbestosis.
Although the deputy commissioner found that Jones' condition had
not yet reached a ratable stage of asbestosis, he did award Jones
lifetime medical benefits for Jones' occupational disease.
The employer appealed, and the full commission reversed the
deputy commissioner's award. The full commission ruled that
because the asbestosis had not reached a ratable level under Code
§ 65.2-503, it had therefore not yet reached a compensable level.
Accordingly, the commission ruled that medical benefits could
not be awarded for a non-compensable disease.
We find that the commission's interpretation of the Workers'
Compensation Act is too narrow. The deputy commissioner made a
factual finding, with which the commission concurred, that the
presence of disease was established, evidenced by asbestos
fibers, scarring, and pleural thickening. The employer and the
commission cite Mayo v. E.I. DuPont de Nemours & Co., 70 O.I.C.
181 (1991), for the proposition that undisputed asbestosis that
has not reached a ratable level under Code § 65.2-503 (formerly
Code § 65.1-56) is not a compensable occupational disease and
renders the claimant ineligible for any benefits under the Act.
We disagree. Simply because the disease fails to rise to the
level of a permanent loss on the schedule of Code § 65.2-503 does
not automatically preclude an award of medical benefits. To the
extent that Mayo conflicts with our own reading of the Act, Mayo
does not accurately state the law.
Code § 65.2-403 allows an award of medical benefits to
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employees who have an occupational disease covered by the Act. 1
If Jones' condition constitutes an occupational disease, he is
entitled to those benefits.
The Act defines an occupational disease as follows:
A. As used in this title, unless the context
clearly indicates otherwise, the term
"occupational disease" means 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.
B. 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
before its contraction.
1
Section 65.2-403 allows the same medical benefits as those
awarded for an injury by accident. We note that the commission
frequently awards medical benefits for accidental injuries where
no other compensation is awarded.
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Code § 65.2-400. Upon review of the statutory language and the
factual findings of the commission, we conclude that Jones'
condition falls within the definition of an occupational disease.
He is therefore entitled to medical benefits under Code
§ 65.2-403. Whether a permanent loss compensable under Code
§ 65.2-503 accompanies the disease has no impact upon an award
under Code § 65.2-403.
We reverse the commission's decision and remand with
instructions to enter an award not inconsistent with this
opinion.
Reversed and
remanded.
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