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									VIRGINIA:                                                                         05/11/2009

                                                                           Opinion by DUDLEY
v.                    VWC File No. 231-24-98


Robert Chris Breeding
Claimant, Pro Se.
(Priority Mail)

Crystal Y. Twitty, Esquire
Assistant Attorney General
for the Defendant.
(Priority Mail)

     REVIEW on the record by Commissioner Diamond, Commissioner Dudley, and
Commissioner Williams at Richmond, Virginia.

       The claimant requests Review of the Deputy Commissioner's October 17, 2008, Opinion

denying benefits for respiratory symptoms claimed as either an accident or an occupational

disease. We affirm.

       On June 3, 2008, the claimant filed a Claim for Benefits alleging both an accident and an

occupational disease related to head, throat, and breathing difficulties incurred in June 2006. At

the Hearing on October 2, 2008, he testified that he had worked for the employer for more than

22 years. The claimant worked at the Pentagon location as assistant branch manager from

July 2005 until his transfer in January 2008. He stated that he was required to clean the office,

wait on customers, audit reports, and close the office. When the claimant initially arrived at the
                                                                          VWC File No. 231-24-98

Pentagon location, the office was filthy, and “[i]t was full of dust.” (Tr. at 4). He said that he

began having breathing problems and dizziness, and developed a cough. While on vacation, the

claimant felt better, but his symptoms came back when he returned to the work location.

       The claimant acknowledged suffering similar symptoms outside of work, “[o]ver my

44 years,” as well as in dusty areas, although not as severe as at work (Tr. at 6). He testified that

he became especially sick when the air conditioning was used at work. An air quality survey of

the employer‟s Pentagon office, admitted into evidence, revealed problems with air flow, cold

temperature, and the prevalence of particulates in the air handling unit filters. A number of

recommendations were provided. The claimant stated that he asked his employer for an air

purifier, but was denied.

       The claimant testified that in February 2007, the employer‟s Pentagon office was

relocated to a much cleaner area, and that he did not experience symptoms. However, he

acknowledged that in March 2008, he received a diagnosis of seasonal allergies.                  On

July 17, 2006, the claimant gave a recorded statement to a representative of the insurer, which

was admitted into evidence. He discussed the ventilation and airflow problems, the dusty

environment, his cough, and his time off from work. The claimant denied prior allergies, except

to penicillin and bee stings.

       The claimant testified that he initially sought treatment for his breathing problems in

August 2005. A report from the Medical Center of Stafford reflects treatment for a cough on

August 25, 2005, and notes: “Onset 8/11/05, but [symptoms] on & off all summer.” The

claimant complained of nausea and dizziness related to the cough, as well as right flank and low

                                                                         VWC File No. 231-24-98

back pain. The attending physician‟s notes are partially illegible, but do mention the dusty

environment at the Pentagon office. The claimant was described as a nonsmoker, with no history

of asthma, and was treated with antibiotics for a diagnosis of bronchitis.        He returned on

September 1, 2005, complaining of an uncontrollable cough, and again bronchitis was diagnosed.

       On June 13, 2006, the claimant returned to the medical center with shortness of breath

and chest pain. Dr. Rosemary T. Enright, family practitioner, noted that he felt the symptoms

while at the Pentagon location where construction was being performed. Dr. Enright diagnosed

the claimant with dyspnea and chest discomfort. She prescribed Singulair and a room purifier

for the workplace. Dr. Enright also considered obtaining an allergy evaluation, and excused the

claimant from work for a few days. He was treated for sinus congestion and a cough on

July 12, 2006. On March 30, 2008, Dr. Yvonne M. Villarreal, family practitioner, diagnosed an

upper respiratory tract infection and seasonal allergies, with a reported onset of March 25, 2008.

       On Review, we first note that this claim does not fit the definition of an injury by

accident, as the claimant has not presented evidence of an identifiable incident or sudden

precipitating event resulting in an obvious, sudden mechanical or structural change in the body.

See Morris v. Morris, 238 Va. 578, 585, 385 S.E.2d 858, 865 (1989). In addition, as the

Deputy Commissioner correctly held, the claimant‟s condition is not an occupational disease.

Rather, the alleged breathing problems are considered an ordinary disease of life to which the

general public is exposed outside the employment and must be evaluated under Virginia Code

§ 65.2-401. See Haussmann v. Univ. of Va. Hosp., VWC File No. 229-92-87 (March 4, 2008),

aff’d, No. 0860-08-2 (September 23, 2008) (unpublished).

                                                                         VWC File No. 231-24-98

       To establish a compensable occupational disease under Code § 65.2-401, the claimant

must prove that the disease (1) arose out of and in the course of his employment; (2) did not

result from causes outside of the employment; and (3) follows as an incident of an occupational

disease, is an infectious or contagious disease contracted in the course of certain healthcare jobs

as defined by the Virginia Workers‟ Compensation Act, or is characteristic of the employment

and was caused by conditions peculiar to it. The claimant must prove these elements by clear

and convincing evidence, not a mere probability.

               Clear and convincing evidence has been defined as „that measure
               or degree of proof which will produce in the mind of the trier of
               facts a firm belief or conviction as to the allegations sought to be
               established.    It is intermediate, being more than a mere
               preponderance, but not to the extent of such certainty as is required
               beyond a reasonable doubt as in criminal cases. It does not mean
               clear and unequivocal.‟

Nat‟l Fruit Prod. Co. v. Staton, 28 Va. App. 650, 507 S.E.2d 667 (1998) (citation omitted). See

also Lanning v. Va. Dept. of Transp., 37 Va. App. 701, 706-07, 561 S.E.2d 33, 36 (2002).

       The claimant testified to the dusty, dirty environment at the employer‟s Pentagon office,

and presented documentary evidence of the location‟s air quality problems. He also stated that

he had suffered similar symptoms over his 44 years, albeit not as severe. Although the claimant

said that his symptoms went away after he stopped working at that office, he was diagnosed with

seasonal allergies after his transfer out of the Pentagon location.       Moreover, there is no

persuasive medical evidence linking his respiratory problems to any specific environmental

condition at work. We conclude that, at best, the claimant established an aggravation of an

ordinary disease of life, which is not compensable in Virginia. Ashland Oil Co. v. Bean, 225 Va.

                                                                    VWC File No. 231-24-98

1, 300 S.E.2d 739 (1983); Genie Co. v. Hammer, 32 Va. App. 257, 262-63, 527 S.E.2d 470, 473

(2000) (aggravation of underlying tendency for hand eczema not compensable, citing

Ashland Oil Co.).

       For the reasons stated, the Deputy Commissioner‟s denial of this claim is AFFIRMED.

       This matter is hereby removed from the Review docket.


       This Opinion shall be final unless appealed to the Virginia Court of Appeals within

30 days of receipt.

cc:     Department of Motor Vehicles/Commonwealth of Virginia, Employer
        Managed Care Innovations, L.L.C., Insurer


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