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TREMELON v. COMMERCIAL CONSTRUCTION CORPORATION, et al.


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TREMELON

v.

COMMERCIAL CONSTRUCTION
CORPORATION, et al.


DECEMBER 12, 2000

Record No. 0335-00-2

Present: Judges Coleman, Willis and Annunziata

Argued at Richmond, Virginia

BERNARD LEE TREMELON, JR.

v.

COMMERCIAL CONSTRUCTION CORPORATION AND

TRIGON ADMINISTRATORS

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION


MEMORANDUM OPINION[1] BY JUDGE
JERE M. H. WILLIS, JR.

W. Edward Riley, IV (Boone, Beale, Cosby &
Long, on brief), for appellant.

Patricia C. Arrighi (Taylor & Walker, P.C.,
on brief), for appellees.

Bernard Lee Tremelon, Jr., (claimant) appeals
from a decision of the Workers’ Compensation Commission
(commission) denying his claim for benefits. On appeal, Tremelon
contends that the commission erred in finding that he failed to
prove he sustained an injury by accident arising out of and in
the course of his employment on or about September 2, 1997. We
agree and reverse the judgment of the commission.

I. BACKGROUND

On appeal, we view the evidence in the light
most favorable to the prevailing party below. R.G. Moore Bldg.
Corp. v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990).

So viewed, the evidence established that
Tremelon was a construction superintendent working for Commercial
Construction Corporation. Between August 31, 1997 and September
2, 1997, he assembled cabinets in an unventilated shed using a
special type of glue, LOKWELD 500. During the first two days, he
was able to take pieces of the cabinets outside to glue them.
However, on the third day, September 2, 1997, the work required
that he remain inside the shed and that he work inside the
cabinets. As that day progressed, he began to feel unwell. That
evening, he began experiencing difficulty breathing and, during
the early morning hours of September 3, 1997, he was taken to the
hospital. He was unable to communicate with medical personnel and
was thought to be suffering a heart attack. When, after several
hours, his condition improved and it was determined that he had
not suffered a heart attack, he was released. His discharge
summary, dated September 4, 1997, reported that he had suffered
"right-sided chest pain off and on for more than 12 hours in
duration." Dr. Yi-Nan Chou, a cardiologist, diagnosed
pleuritic chest pain of unknown cause, which was possibly due to
pleurisy.

On December 23, 1997, Dr. Chou wrote that he
had been informed that Tremelon’s chest pain occurred while
working in a metal shed using LOKWELD 500 glue. Dr. Chou wrote
"that [Tremelon's] pleuritic chest pain and his
hospitalization may be work related." By letter dated
October 26, 1998, Dr. Chou reported that he had researched
LOKWELD 500 and had discovered that the compound could cause
anaphylactic reactions and dermatitis. He wrote that Tremelon’s
"pleuritic chest pain could probably be related to the
inhalation [of the LOKWELD 500 glue]." On February 25, 1999,
Dr. Chou further reported:

I have done a Med-Search concerning LOKWELD 500
and could not find any reports concerning LOKWELD induced
pleuritic chest pain. However, it has been well known that
LOKWELD 500 is a[n] irritant to mucous membranes and to the skin.
It is my personal opinion, therefore, that it is probably the
cause of Mr. Bernard Tremelon’s pleuritic chest pain after his
exposure through inhalation.

The commission held:

[T]he . . . claimant experienced
symptoms that gradually grew from an extended exposure. He stated
that he sporadically worked with the glue for a span of three
days. The claimant testified that the breathing difficulties
began on the third day, late at night. There was no discreet
[sic], identifiable incident. The claimant did not describe a
distinct onset of symptoms. On the contrary, his illness
"just progressed more and more, and the more it did, the
less [he] could breathe . . . ." Similarly,
the hospital discharge summary of September 4, 1997, reported
"chest pain off and on for more than 12 hours in
duration . . . [.]"
. . . [T]he evidence does not establish a sudden,
mechanical bodily change as contemplated by case law.

Thus, the commission found that Tremelon’s
condition resulted from his exposure to the glue, but that the
evidence failed to prove a sudden mechanical bodily change
resulting from a discrete, identifiable incident.

II. INJURY BY ACCIDENT

"In order to establish entitlement to
compensation benefits, the claimant must prove, by a
preponderance of the evidence, an injury by accident which arose
out of and in the course of his employment." Classic
Floors, Inc. v. Guy
, 9 Va. App. 90, 95, 383 S.E.2d 761, 764
(1989). "[T]o establish an injury by accident, a claimant
must prove: (1) an identifiable incident; (2) that occurs at some
reasonably definite time; (3) an obvious sudden mechanical or
structural change in the body; and (4) a causal connection
between the incident and the bodily change." Chesterfield
County v. Dunn
, 9 Va. App. 475, 476, 389 S.E.2d 180, 181
(1990) (citation omitted). Unless the evidence carried that
burden of proof as a matter of law, 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).
Tremelon has carried that burden of proof.

A. IDENTIFIABLE INCIDENT

Although Tremelon worked with the LOKWELD 500
glue over a period of three days, he underwent intense exposure
to that substance only on the third day, September 2, 1997.
During the first two days, he was able to take small pieces of
the cabinets outside the shed to glue them in the open air. It
was only on the third day that his duties required him to work
within the closed confines of the shed and, indeed, within the
cabinets themselves. We hold that this intense exposure, over the
course of a single day, constituted an identifiable incident.

B. REASONABLY DEFINITE TIME

Although Tremelon’s symptoms did not manifest
themselves instantly, the evidence compels the conclusion that he
suffered the injuring irritation of the glue over the course of a
single day’s work, a reasonably definite time. The symptoms began
to manifest themselves as the day went on. After the conclusion
of the day’s work, he began to feel the full effects of the
irritation.

C. OBVIOUS SUDDEN MECHANICAL
OR STRUCTURAL

CHANGE IN THE BODY

Dr. Chou diagnosed irritation to Tremelon’s
mucous membranes, resulting in pleuritic chest pain. This
condition represented an obvious sudden mechanical or structural
change in Tremelon’s body.

D. CAUSATION

"The actual determination of causation is
a factual finding that will not be disturbed on appeal if there
is credible evidence to support the finding." Ingersoll-Rand
Co. v. Musick
, 7 Va. App. 684, 688, 376 S.E.2d 814, 817
(1989) (citation omitted). Dr. Chou diagnosed the inhalation of
LOKWELD 500 fumes as the probable cause of Tremelon’s mucous
membrane irritation and pleuritic chest pain, which caused him to
be hospitalized. Tremelon testified that prior to that day, he
had never experienced physical symptoms like those he experienced
while working with the LOKWELD 500 glue. Dr. Chou’s opinion,
along with Tremelon’s testimony, neither of which was
contradicted, support the commission’s finding that Tremelon’s
injury was causally related to inhalation of the glue on
September 2, 1997.

Thus, the evidence proved all of the
requirements of an "injury by accident."

The judgment of the commission is reversed, and
this case is referred to the commission for further proceedings
based upon Tremelon’s entitlement to an award.

Reversed and remanded.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

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