Anne Griffin Miller v County of James City, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
ANNE GRIFFIN MILLER
v. 	Record No. 2627-95-1 	MEMORANDUM OPINION*
PER CURIAM
COUNTY OF JAMES CITY 	MAY 14, 1996
AND
CITY OF WILLIAMSBURG
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Arnold H. Abrons; Abrons, Fasanaro &
Sceviour, on brief), for appellant.
(Robert A. Rapaport; Knight, Dudley, Clarke
& Dolph, on brief), for appellee.
Anne Griffin Miller ("claimant") contends that the Workers'
Compensation Commission erred in finding that she failed to prove
that her reactive airways disease was caused by her employment.
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. 	Rule 5A:27.
A claimant must prove the existence of an occupational
disease by a preponderance of the evidence. 	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
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
S.E.2d 782, 788 (1988). 	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. 	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 elements. 	Code § 65.2-400(B). 	Elements (1) and
(6) require evidence 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).
The commission found that claimant failed to establish a
compensable occupational disease under the requirements of Code
§ 65.2-400.
The record is devoid of any medical opinions to support
claimant's assertion that her employment caused her condition.
At best, Dr. Thomas L. Munzel, claimant's treating pulmonary
specialist, opined that her employment aggravated her reactive
airways disease. 	A disease that is merely aggravated by the
employment does not establish causation and is not an
occupational disease. 	Ashland Oil Co. v. Bean, 225 Va. 1, 3-4,
300 S.E.2d 739, 740 (1983).

3
Based upon the absence of any persuasive medical evidence
that claimant's work environment caused her restrictive airways
disease, claimant 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 her
application based upon a finding that she did not prove that her
condition was caused by her employment or that it had its origins
in a work connected risk.
Accordingly, we affirm the commission's decision.
Affirmed.