Bernard Lee Tremelon, Jr. v Commercial Const et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
BERNARD LEE TREMELON, JR.
MEMORANDUM OPINION* 	BY
v. 	Record No. 0335-00-2 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 12, 2000
COMMERCIAL CONSTRUCTION CORPORATION AND
TRIGON ADMINISTRATORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
W. Edward Riley, IV (Boone, Beale, Cosby &
Long, on brief), for appellant.
Patricia C. Arrighi (Taylor & Walker, P.C.,
on brief), for appellees.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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
- 2 -

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.
- 3 -

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
- 4 -

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
- 5 -

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.
- 6 -