Kathryne Smith v Fairfax Hospital, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
KATHRYNE SMITH MEMORANDUM OPINION*
v. 	Record No. 1681-98-4 	PER CURIAM
DECEMBER 8, 1998
FAIRFAX HOSPITAL AND INOVA
HEALTH SYSTEM FOUNDATION, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Matthew H. Swyers; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellant.
(Eric J. Berghold; McCandlish & Lillard, on
brief), for appellees.
Kathryne Smith ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that her
claim seeking an award of compensation for an occupational
disease was not timely filed. 	Specifically, claimant argues that
she did not receive a positive diagnosis of contact dermatitis
until January 22, 1997, and, therefore, the statute of
limitations contained in Code § 65.2-406(A)(5) did not begin to
run until that date. 	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. 	See
Rule 5A:27.
In denying claimant's application and holding that her claim
was time-barred, the commission found as follows:
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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[T]he claimant reasonably knew from the
communications given to her that her
condition was in part from the gloves she
wore at work. 	She acknowledged that as soon
as Dr. [Martin S.] Horn told her [in October
1990] one of the possibilities was from
exposure to latex, she immediately started
using cotton liners under the latex gloves
while at work. . . .
In a recorded interview, upon being
asked whether she remembered the date of the
incident "or the date of the diagnosis," she
expressed "the date of . . . diagnosis was
the whole problem has been over four
years. . . ." 	In her Claim for Benefits, for
the date of communication, she wrote "had
been previously told by former doctors also."
This is not a situation in which there was
no known nexus between her contact dermatitis
and her employment. 	Although the medical
records, prior to her meeting with Dr.
[Ellen] Kessler, do not directly reflect that
there was a communication of latex causation,
her testimony, her actions, and other
documentation persuade us that she was aware
that latex, which was not used by her in any
other activity except her employment, was a
substantial causative reason for her
condition.
Code § 65.2-406(A)(5) requires that a claimant file for
compensation for an occupational disease within "two years after
a diagnosis . . . is first communicated to the
employee . . . ."The statute "does not require that an employee
receive from a physician a communication that his disease is work
related." 	It requires only that he "learn that the condition is
an occupational disease for which compensation may be awarded."
"Whether a diagnosis of an occupational
disease was communicated and when the
communication occurred are factual
determinations."

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City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 131-32,
493 S.E.2d 661, 666 (1997) (citations omitted).
The medical records, claimant's testimony, and her recorded
statement amply support the commission's factual findings. 	That
credible evidence established that as early as October 1990,
claimant knew that her contact dermatitis was a disease that
might be caused by her wearing latex gloves at work. 	In fact, at
that time, she took immediate precautions to avoid exposure to
latex gloves at work. 	She did not file her claim until 1997.
Thus, based upon this record, we cannot hold as a matter of law
that claimant's evidence proved that her application was timely
filed.
For these reasons, we affirm the commission's decision.
Affirmed.