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THE GENIE COMPANY, et al. v. HAMMER



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THE GENIE COMPANY, et
al.

v.

HAMMER


APRIL 25, 2000

Record No. 0914-99-3

THE GENIE COMPANY AND THE INSURANCE COMPANY OF
THE STATE OF PENNSYLVANIA

v.

MARSHA HAMMER

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Coleman, Frank and Senior Judge
Hodges

Argued at Salem, Virginia

Monica L. Taylor (E. Scott Austin; Gentry,
Locke, Rakes & Moore, on brief), for appellants.

No brief or argument for appellee.


OPINION BY JUDGE ROBERT P. FRANK

The Genie Company and The Insurance Company of
the State of Pennsylvania (appellants) appeal the decision of the
Workers’ Compensation Commission (commission) awarding benefits
for an occupational disease to Marsha Hammer (claimant). On
appeal, appellants contend the commission erred in finding that:
1) claimant’s hand eczema was an occupational disease and 2)
claimant proved that her hand eczema was a compensable
occupational disease. We agree and reverse the commission’s
award.

I. BACKGROUND

Claimant was employed by appellant, The Genie
Company, at a coil form position. She positioned tank coils onto
hot boards that came out of a sider machine and then guided the
boards into another machine that applied glue to them. She
testified that she did not have contact with the glue and did not
touch the boards after they went into the second machine. She
noticed in September 1997 that her hands were sore, cracked, and
peeling and had begun to bleed. On October 16, 1997, claimant
sought medical treatment for her condition and was removed from
the coil form job. At that time, she had been working at the coil
form position for approximately two months.

At the hearing before the deputy commissioner,
claimant testified that the problems with her hands did not begin
until she started working at the coil form position. On
cross-examination, she admitted that she washed dishes by hand
and used household cleaning products to clean her home.

Claimant’s hand eczema was diagnosed and
treated by Dr. Stephen Phillips. Dr. Phillips’ office notes from
his initial examination of claimant on October 16, 1997 state,
"I am not sure if this is entirely due to work she has been
doing for a long time without any problems. It may be that the
job of grabbing small parts aggravates an underlying tendency for
dermatitis." Dr. Phillips prescribed a topical cream and
advised claimant to avoid repeated grasping. On October 30, 1997,
Dr. Phillips examined claimant again and wrote in his office
notes, "I am not certain if this is due to work but seems to
be aggravated by handling materials." On December 16, 1997,
Dr. Phillips noted that claimant’s condition was greatly improved
and advised claimant to avoid grasping with her right hand.

On January 30, 1998, Dr. Phillips answered a
series of questions propounded by appellants’ counsel. Dr.
Phillips wrote, "The underlying tendency to develop eczema
is not a work related illness or injury, but an acute flare such
as this may be precipitated by physical trauma such as handling
the hot boards." Dr. Phillips also listed contact with
household cleaners, keeping hands wet for prolonged periods, or
even frequent hand or dish washing as potential causes of eczema
such as claimant developed. Dr. Phillips opined that claimant’s
attack of eczema was related to her employment at The Genie
Company but stated that the underlying condition of hand eczema
is not a work-related disease.

On April 14, 1998, Dr. Phillips wrote that he
could not state with a reasonable degree of medical certainty
that claimant’s condition was an occupational disease because
hand eczema is a "’disease of life.’" He also stated
that claimant’s eczema was not characteristic of her employment.

II. ANALYSIS

The commission ruled that claimant’s hand
eczema was an occupational disease pursuant to Code
? 65.2-400 and affirmed the deputy commissioner’s award of
benefits. Appellants argue that claimant’s hand eczema is a
non-compensable ordinary disease of life and that claimant failed
to prove that her hand eczema was compensable because her
treating physician opined that the condition does not have its
origin in a risk of the employment and is not characteristic of
claimant’s employment. We agree and reverse the commission’s
award.

"[T]he issue whether a worker has suffered
an impairment that constitutes a compensable disease is a mixed
question of law and fact and, hence, a Commission finding on the
question is not conclusive and binding upon this Court but is
properly subject to judicial review." Stenrich Group v.
Jemmott
, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996)
(citations omitted).

Code ? 65.2-400 states, in part:

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.

Code ? 65.2-401 states:

An ordinary disease of life to which the
general public is exposed outside of the employment may be
treated as an occupational disease for the purposes of this title
if each of the following elements is established by clear and
convincing evidence (not a mere probability):

1. That the disease exists and arose out of and
in the course of employment as provided in ? 65.2-400 with
respect to occupational diseases and did not result from causes
outside of the employment, and

2. That one of the following exists:

a. It follows as an incident of occupational
disease as defined in this title; or

b. It is an infectious or contagious disease
contracted in the course of one’s employment in a hospital or
sanitarium or laboratory or nursing home as defined in
? 32.1-123, or while otherwise engaged in the direct
delivery of health care, or in the course of employment as
emergency rescue personnel and those volunteer emergency rescue
personnel referred to in ? 65.2-101; or

c. It is characteristic of the employment and
was caused by conditions peculiar to such employment.

Under Code ? 65.2-400, a disease arises
out of the employment if it meets all of the enumerated criteria
for causation set forth in Paragraph B. In this case, claimant
failed to prove all of the conditions specified in the statute.
Specifically, Code ? 65.2-400(B)(4) states that the disease
cannot be one to which an employee would have substantial
exposure outside of the employment. Dr. Phillips wrote that hand
eczema can arise from a variety of sources outside the work
environment, including contact with household cleaners, keeping
hands wet for prolonged periods, and frequent hand or dish
washing. Code ? 65.2-400(B)(5) requires that the disease be
incidental to the character of the business. On April 14, 1998,
Dr. Phillips opined that claimant’s hand eczema was not an
occupational disease and was not characteristic of her
employment. Instead, he wrote that her condition was a
"disease of life." Therefore, we find that claimant’s
hand eczema was an ordinary disease of life and was not an
occupational disease.

Under Code ? 65.2-401(1), an ordinary
disease of life may be treated as an occupational disease if the
employee proves by clear and convincing evidence that the disease
arose out of and in the course of the employment as provided in
Code ? 65.2-400. As discussed above, the evidence failed to
show that claimant’s hand eczema arose out of and in the course
of her employment pursuant to the causation criteria specified in
Code ? 65.2-400(B). Therefore, claimant’s hand eczema is
not compensable as an ordinary disease of life.

Additionally, in Ashland Oil Co. v. Bean,
225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983), the Supreme Court of
Virginia held that a disability resulting from the aggravation of
a pre-existing disease of life was not compensable under the
Workers’ Compensation Act.
[1] In this case, Dr. Phillips stated that eczema is a
disease of life, and he opined that claimant had an underlying
tendency for the condition and only the flare-up for which he
treated her was related to her employment. Therefore, the
aggravation of claimant’s underlying tendency for hand eczema is
not compensable.

For these reasons, we hold that claimant’s hand
eczema is a non-compensable disease of life and reverse the
commission’s award of benefits.

Reversed.

 

FOOTNOTES:

[1] Although Ashland was decided before the
enactment of Code ? 65.2-401, we have cited it with
approval in Teasley v. Montgomery Ward & Co., Inc., 14
Va. App. 45, 49-50, 415 S.E.2d 596, 598 (1992). Further, the
language of Code ? 65.2-401 requires that an ordinary
disease of life be traced to the employment as its proximate
cause, which is wholly consistent with the holding in Ashland.

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