The Genie Company, et al. v Marsha Hammer

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
THE GENIE COMPANY AND THE INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA
OPINION BY
v. 	Record No. 0914-99-3 	JUDGE ROBERT P. FRANK
APRIL 25, 2000
MARSHA HAMMER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (E. Scott Austin; Gentry,
Locke, Rakes & Moore, on brief), for
appellants.
No brief or argument for appellee.
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
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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
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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
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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
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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
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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.
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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