Cochran Const Co v. Charles J. Martin

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Bray
Argued at Norfolk, Virginia
COCHRAN CONSTRUCTION COMPANY,
NIAGARA FIRE INSURANCE COMPANY, and
FIDELITY CASUALTY COMPANY OF NEW YORK
MEMORANDUM OPINION*
v. Record No. 2524-94-1 BY JUDGE JOSEPH E. BAKER
AUGUST 1, 1995
CHARLES J. MARTIN,
OMNI CONTRACTORS GROUP SELF-INSURANCE ASSOCIATION,
CITIZENS INSURANCE COMPANY OF AMERICA, and
CALIFORNIA COMPENSATION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Steven H. Theisen (Midkiff & Hiner, P.C., on brief),
for appellants.
Gregory E. Camden (Robert J. Macbeth, Jr.; Rutter &
Montagna, on brief), for appellee Charles J. Martin.
Stephen A. Strickler (McCardell & Inman, P.L.C., on
brief), for appellee Omni Contractors Group
Self-Insurance Association.
(William C. Walker; Donna White Kearney; Taylor &
Walker, P.C., on brief), for appellees Citizens
Insurance Company of America, and California
Compensation Insurance Company.
Cochran Construction Company and its insurance carriers,
Niagara Fire Insurance Company and Fidelity Casualty Company of
New York, jointly referred to herein as employer, appeal from a
decision of the Workers' Compensation Commission (commission)
that awarded compensation benefits to Charles J. Martin
(claimant). Claimant filed an application for a hearing on
____________________
*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
July 10, 1991, alleging a diagnosis of asbestosis made on April
10, 1991 and claimed to have been contracted in the course of and
arising out of his employment with employer. Claimant contends
that he is entitled to medical and permanent partial benefits for
first-stage asbestosis pursuant to Code § 65.2-503.
As the parties are familiar with the record in this case, we
will recite only those facts necessary for an understanding of
this opinion. At a June 19, 1992 hearing, claimant testified
that he was exposed to asbestos while working for employer on the
Hilton School and Wythe School jobs. In addition, he said that
he had worked on the Fort Eustis Army Base and Veterans'
Administration Hospital jobs. He could not give the dates that
he worked on any of these jobs but asserts that his last
injurious exposure to asbestos was in June 1979.
Employer disclosed that claimant had been employed by the
company for nine days in January 1975 and from January 12, 1978
through November 26, 1980. Claimant was also employed by
employer from April 20, 1981 through June 29, 1986 and from
February 3, 1987 through September 20, 1987. Claimant concedes
that he has not proved by a preponderance of the evidence any
injurious exposure to asbestos during the periods of employment
after June 1979.
Employer contends that claimant, while in its employ, was
not exposed to asbestos, or, if so, not to an extent that the
exposure was the cause of any condition from which claimant
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suffers. Employer presents three additional questions that are
rendered moot following the disposition of the foregoing issue
and, therefore, need not be addressed. 1
The medical records show that claimant's treating physician
was Dr. Andrew K. Leake, III. Claimant was seen by Dr. Leake on
January 26, 1989. After the hearing on claimant's first
application, the deputy commissioner held that claimant had not
proved that his condition was the first stage of asbestosis as he
alleged. The commission agreed but noted that the deputy
commissioner had found that the medical evidence "suggested"
claimant's condition was consistent with asbestosis, although it
had not been diagnosed as such. The commission observed further
that in Dr. Leake's report "suggesting" that claimant has
asbestosis, he did not place it into any category that could
serve as a basis for an award. In affirming the deputy on
October 29, 1992, the commission ordered that the case be
"removed from the hearing docket."
On February 14, 1994, claimant forwarded a second request to
the commission to "create a new workers' compensation file to
reflect the claimant's receipt of the diagnosis of compensable
1
During the period claimant asserts he was exposed to asbestos
while employed by employer, five different insurance companies
provided compensation coverage for employer. At oral argument,
claimant conceded that the evidence does not show by a
preponderance that he was injuriously exposed to asbestos after
June 1979, and we find that claimant has failed to prove any
liability upon appellees Omni Contractors Group Self-Insurance
Association, Citizens Insurance Company of America, or California
Compensation Insurance Company.
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disabling asbestosis disease from Dr. Andrew K. Leake, III, on
March 16, 1993, attributable to his employment with Cochran
Construction Company (employer)." That letter further requested
a hearing "for an adjudication of the claimant's entitlements."
In that application, claimant alleged his claim was supported by
Dr. Leake's March 16, 1993 office note, an April 1993 finding by
Dr. Leake that claimant was 100% disabled as a result of
asbestosis, and a report of a chest x-ray report taken of
claimant on October 6, 1992. The commission granted claimant's
request for a further hearing.
The medical evidence upon which the commission relied at the
second hearing was the testimony of Dr. Leake and a laboratory
report made by Dr. William F. Wheeler. Dr. Leake testified that
claimant related to him that he had been exposed "for about 11
years with asbestos." Dr. Leake stated that "you can't tell the
difference between asbestosis and a thousand other intersticial
[sic] lung diseases without that one key phrase, exposure, and
lag time." When asked to give his opinion whether claimant
suffered from asbestosis, Dr. Leake's answer clearly assumed that
what he had been told concerning eleven years of exposure was
accurate. In fact, the record discloses that during his
employment with employer, claimant's exposure to asbestos, if
any, was less than two years.
The record discloses that claimant could not give the dates
of his employment or when he worked on various projects for
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employer. Employer's records were produced showing that between
the date he was first employed and the date claimant asserts was
his last date of injurious exposure was nine days in 1975 and
from January 1978 to June 1979. Dr. Leake was not asked--and the
record does not show--that his opinion would have been the same
if the exposure had been less than eleven years or, more
particularly, if for a period of only one year.
The commission therefore failed to consider the vital
assumption upon which Dr. Leake's diagnosis was based: that
claimant had been exposed to asbestos for eleven years. This
assumption was contrary to the commission's own finding--a fact
claimant does not contest and which we need not review--that
claimant was "last injurious[ly] expos[ed] to the causes of
asbestosis in June 1979" when the one-year job at the Wythe and
Hilton schools ceased. Dr. Leake further testified that the
usual exposure is five to ten years, and his diagnosis was
premised upon an exposure of at least this duration.
Claimant has the burden, under Code § 65.2-400, of proving
"a direct causal connection between the conditions of the work
and the disease." Van Geuder v. Commonwealth, 192 Va. 548, 556,
65 S.E.2d 565, 570 (1951). "Upon appellate review, the findings
of fact of the Industrial Commission will be upheld when
supported by credible evidence. . . . 'Whether a disease is
causally related to the employment and not causally related to
other factors is such a finding of fact.'" Fairfax County v.
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Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990)
(citations omitted). "However, if no credible evidence exists in
support of a factual finding, the issue of sufficiency of the
evidence is one of law for this Court to decide." Spruill v.
C.W. Wright Constr. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360
(1989). In the case before us, claimant has not met his burden
of proving a causal connection between the conditions of his work
for employer and his disease, and the record does not support the
commission's finding that claimant contracted asbestosis in the
course of or arising out of his employment with employer.
Therefore, we hold that the commission's finding is not supported
by credible evidence. Accordingly, we reverse the commission's
order, vacate the award, and dismiss the application.
Reversed.
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