Don't Miss
Home / Fulltext Opinions / Virginia Court of Appeals / FORBES v. CREATIVE SCREEN PRINT, INC.

FORBES v. CREATIVE SCREEN PRINT, INC.


FORBES v. CREATIVE
SCREEN PRINT, INC.

(unpublished)


JUNE 10, 1997
Record No. 0150-97-2

BERT RAY FORBES

v.

CREATIVE SCREEN PRINT, INC. AND
FIRST OF GEORGIA INSURANCE COMPANY

Present: Judges Benton, Coleman and Willis

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Bert Ray Forbes, pro se, on brief).

(Donna White Kearney; Taylor & Walker, on brief), for
appellees.


Bert Ray Forbes contends that the Workers’ Compensation
Commission erred in finding that he failed to prove that his
peripheral polyneuropathy constituted an occupational disease
arising out of and in the course of his employment. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission’s decision. 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). "Whether a disease is causally related to
the employment and not causally related to other
factors . . . is a finding of fact." Island
Creek Coal Co. v. Breeding
, 6 Va. App. 1, 12, 365 S.E.2d 782,
788 (1988). Unless we can say as a matter of law that claimant’s
evidence sustained his 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).

An occupational disease is one "arising out of and in the
course of employment." Code ? 65.2-400(A). "A
disease shall be deemed to arise out of the employment" when
the evidence establishes six statutory elements. Code ? 65.2-400(B). Those
elements include showing "[a] direct causal connection
between the conditions under which work is performed and the
occupational disease" and that the disease "had its
origin in a risk connected with the employment and flowed from
that source as a natural consequence . . . ."
Code ? 65.2-400(B)(1)
and (B)(6).

Dr. Elizabeth Waterhouse, who began treating Forbes eight
months after he experienced an acute episode of wheezing,
diagnosed Forbes as suffering from peripheral polyneuropathy and
solvent exposure. In her September 13, 1995 office notes, Dr.
Waterhouse listed the chemicals Forbes was exposed to at work.
She then noted that "Dr. Campbell thought that the ketone
methyl isobutyl is also known as MBK, which is known to cause
neuropathy." Dr. Waterhouse also noted that she intended
"to call Dr. Saady . . . , who may be able to
shed some more light on this situation." On October 16,
1995, Dr. Waterhouse wrote that, "It is possible that some
of his symptoms may be related to the chemicals that he is
involved with in his job at the printing plant." On January
10, 1996, Dr. Waterhouse reported as follows:

In summary, [Forbes] continues to demonstrate a very mild
peripheral polyneuropathy. His degree of worry and concern is
slightly out of proportion to the findings that I am able to
document on physical exam. If his symptoms are, indeed,
related to solvent exposure, they may improve very gradually
over the next few months, now that he is no longer exposed to
the solvents.

Forbes continued to suffer from symptoms related to his
condition after he stopped working. On July 10, 1996, Dr.
Waterhouse referred Forbes to Dr. Moses for a lung function
evaluation, noting that Forbes had not worked at the printing
plant for over six months.

The commission found that Forbes failed to establish a
compensable occupational disease under the requirements of Code ? 65.2-400. The
commission, in its role as fact finder, was entitled to give
little weight to Dr. Waterhouse’s opinions where she failed to
state with any degree of reasonable medical certainty that
Forbes’ employment caused his peripheral polyneuropathy. Dr.
Waterhouse’s opinions were couched in terms of possibilities and
speculation, rather than probabilities.

Based upon the absence of any persuasive medical opinion that
Forbes’ exposure at work to various chemicals and solvents caused
his peripheral polyneuropathy, he did not prove as a matter of
law a compensable occupational disease pursuant to the
requirements of Code ? 65.2-400.
Thus, the commission did not err in denying Forbes’ application
based upon a finding that he did not prove that his condition was
caused by his employment or that it had its origin in a
work-connected risk.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

Scroll To Top