Randolph Campbell (Deceased), etc v. Rubatez Corp

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
RANDOLPH CAMPBELL (DECEASED)
BY MARY CAMPBELL (WIDOW)
MEMORANDUM OPINION*
v. Record No. 2944-00-3 PER CURIAM
JULY 17, 2001
RUBATEX CORPORATION AND
TWIN CITY FIRE INSURANCE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mary Campbell, pro se, on brief).
(Richard D. Lucas; Carter, Brown & Osborne,
P.C., on brief), for appellees.
Randolph Campbell (deceased) by his widow, Mary Campbell
(claimant) contends that the Workers' Compensation Commission
erred in finding that claimant failed to prove that the deceased
employee's Multiple Systems Atrophy ("MSA") constituted an
occupational disease or a compensable ordinary disease of life
causally related to his employment. Pursuant to Rule 5A:21,
employer raises the additional questions of whether (1) the
February 3, 1995 claim should have been dismissed because it was
anticipatory when filed; (2) the claim should have been
dismissed because the deceased's date of communication, October
4, 1999, was not within five years of his last injurious
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
exposure; and (3) claimant would be barred from receiving
benefits, even if she prevailed, since no medical benefits were
incurred within fifteen days of the date of communication and
there was no wage loss within the fifty-two weeks preceding the
date of communication. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. See Virginia Dep't
of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307,
308 (1985). For an occupational disease to be compensable under
the Act, claimant must prove "[a] direct causal connection
between the conditions under which work is performed and the
occupational disease." Code § 65.2-400(B)(1).
In order to prove a compensable ordinary disease of life
under Code § 65.2-401, the claimant must "'establish[ ] by clear
and convincing evidence, to a reasonable medical certainty, that
it arose out of and in the course of the employment as provided
in [Code] § 65.2-400 . . . and did not result from causes
outside of the employment.'" Greif Cos. v. Sipe, 16 Va. App.
709, 714, 434 S.E.2d 314, 317-18 (1993) (quoting Code
§ 65.2-401). Evidence is clear and convincing when it produces
in the fact finder "a firm belief or conviction as to the
allegations sought to be established. It is . . . more than a
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mere preponderance, but not to the extent of such certainty as
is required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal." Fred C. Walker Agency,
Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)
(citation omitted).
Unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
The record established that numerous physicians treated the
deceased and reviewed his medical records. Drs. G. F. Wooten,
Barrie J. Hurwitz, F. O'M. Shiel, Dennis J. Darcey, Darrell
Powledge, and physicians with the National Institutes of Health
could not state with any degree of reasonable medical certainty
that the deceased's MSA was causally related to his exposure to
chemicals at work.
Dr. William Campbell was the only physician to render an
opinion that the deceased's MSA was caused by his exposure to
chemicals in his workplace. However, the commission rejected
Dr. Campbell's opinion that toxins produced the deceased's
condition for the following reasons:
Having examined a list of approximately 400
chemicals provided to [Dr. Campbell] by the
claimant, . . . [he] was unable to identify
either those chemicals to which the employee
might have been exposed or the level of the
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alleged exposures. Dr. Campbell was also
unaware of the employee's duties for the
employer, or what specifically was
manufactured at the plant where he worked.
Dr. Campbell also admitted that he did not
know whether or not the employee was
provided with, or even used, protective gear
while working for employer. Dr. Campbell
was not able to make a compound/symptom
analysis with this information in 1991. He
also admitted that the authors of the
January 1999 article[, upon which he relied
to form his opinion,] concluded only that
the "possibility of a relationship" existed
between MSA and chemical exposure.
Based upon the overwhelming lack of any persuasive medical
evidence establishing that the deceased's MSA was causally
connected to exposure to chemicals in his workplace, and in
light of the lack of support for Dr. Campbell's opinion, the
commission, as fact finder, was entitled to conclude that the
evidence was insufficient to prove the requisite causal
relationship for either an occupational disease or an ordinary
disease of life.
Accordingly, we cannot find as a matter of law that
claimant's evidence sustained her burden of proving a causal
relationship between the deceased's employment and his MSA as
either an occupational disease or a compensable ordinary disease
of life. 1 Because our ruling on this issue disposes of this
1
In rendering our decision, we have only considered the
evidence in the record that was properly before the commission
at the time of its decision.
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appeal, we need not address the additional questions raised by
employer.
For these reasons, we affirm the commission's decision.
Affirmed.
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