VIRGINIA by pengtt


									VIRGINIA:                                                                          06/06/2007

                                                                             Opinion by DUDLEY
v.                     VWC File No. 228-00-96


William R. Keown, Esquire
Gordon, Dodson, Gordon and Rowlett
P.O. Box 130
Chesterfield, VA 23832
for the Claimant.

Brian J. McNamara, Esquire
Franklin and Prokopik
2325 Dulles Corner Boulevard
Suite 1150
Herndon, VA 20171
for the Defendants.

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

       The claimant has requested Review of the Deputy Commissioner’s November 30, 2006,

Opinion denying her claim. She argues that the evidence proved that she suffered a compensable

occupational disease or ordinary disease of life. The claimant asserts that the Deputy Commissioner

erred in not accepting a December 12, 2006, letter from Dr. Drew G. Jones, pulmonary specialist.

We affirm.

       We initially address the claimant’s argument that the Deputy Commissioner erred by not

accepting a letter from Dr. Jones submitted after the issuance of his Opinion. We note that she did

not appeal the denial of her request for reconsideration.
                                                                            VWC File No. 228-00-96

       The claimant had the opportunity to present her case at the time of the Hearing. She asserts

that she practiced due diligence before the Hearing in attempting to obtain information from

Dr. Jones. The claimant did not vouch the record with evidence of the alleged bona fide attempts to

obtain the information before the issuance of the Deputy Commissioner’s Opinion. She also did not

pursue other options to submit the letter after the Hearing, such as requesting that the record remain

open for Dr. Jones’ letter. Regardless, we are not persuaded that his letter would change the

outcome of this case.

       The claimant filed a Claim for Benefits on April 14, 2006, alleging that she suffered

occupational allergies and asthma communicated to her on June 15, 2005.1 She sought temporary

total disability benefits, medical benefits, and mileage reimbursement.

       The employer defended that: (1) the claimant did not prove an occupational exposure to

mold; (2) she did not suffer asthma; (3) the claimant did not eliminate other potential causes of her

condition; and (4) at most, she had an exacerbation of preexisting allergies.

       The claimant testified that she had worked as a lead teacher for the employer’s daycare

center since September 2003. She stated that in August 2004, a hurricane caused flooding in her

classroom; however, she did not see the flood. The claimant said that when she entered the room on

September 7, 2004, she observed a machine removing water from the carpet to sanitize and clean it.

She testified that the windows were foggy, and that: “[I]t felt like moisture was in the air.”

(Tr. at 7). The claimant stated that she began to suffer problems, such as hoarseness, rapid

heartbeat, chest burning, and abnormal fatigue, while in the classroom and thereafter. She said that

           The claimant later amended the communication date to be August 29, 2005.
                                                                           VWC File No. 228-00-96

her symptoms worsened with time, and would temporarily improve when she left the room for

recess or was away from it on the weekends.

       The claimant maintained that the classroom contained mold in the carpet, under the sink,

and under the changing table. She submitted photographs of the changing table, which showed

discoloration; however, she agreed that she had not tested the area for mold.

       The claimant stated that in January 2005, she began seeing Dr. William L. Wilkes,

otolaryngologist.   Dr. Wilkes informed her in June 2005 that her problem was due to her

environment, and he advised her to seek alternative employment. The claimant acknowledged that

the doctor had not seen the room and that he based his conclusion on her information that the carpet

had been wet. She acknowledged treating with Dr. Wilkes since 1983 for her allergies, and asserted

that injections adequately controlled her preexisting allergies.     She did not have reactions or

symptoms prior to August 2005, and confirmed that she was allergic to mold.

       The claimant said that the employer replaced the carpet in July 2005, and stated that

regardless, she continued to suffer symptoms. She changed employment sites in August 2005;

however, her problems failed to resolve.

       Shawn Morris, a floor covering installer, testified that in July 2005, the employer hired him

to remove the carpet from the claimant’s classroom. Morris understood that: “They had said that

there could have been a problem with water or something, but when I pulled the carpet up it was all

dry.” (Tr. at 35). Morris sealed the floor and installed new carpet. He stated that during his

20 years of installing carpet, he had observed mold which was detectable by smell and sight. Morris

agreed that he did not inspect other areas of the classroom.

                                                                         VWC File No. 228-00-96

       Vickie Lang, the employer’s director, testified that she supervised the claimant. Lang stated

that in the summer of 2005, she complained of difficulties with her allergies, and attributed the

problems to mold existing in the previously flooded room.

       Lang said that the water from the flood was two inches deep, and she denied that it reached

the sink or ceiling. She described that after the flood, the employer vacuumed out the water, used a

dehumidifier, operated fans, and sprayed an anti-microbial agent. The claimant could not confirm

whether the carpet was completely dry when the facility reopened.

       Lang denied that another employee complained about a residual mold problem. She stated

that, based upon the claimant’s complaints, the employer replaced the carpet and the sink, and

inspected the ceiling for mold, but found none.

       The pertinent medical record reflects that on June 14, 2005, the claimant complained of

hoarseness and sinus problems “every time she goes” into her workplace where there “is mold

growing out of the rug.” Dr. Wilkes assessed that she had allergic rhinitis and laryngitis, and he

proposed medication and performing a fungal culture of the classroom. In July 2006, he noted that

the claimant was diagnosed with allergic rhinitis in the 1980s, which caused her to lose her voice

during an allergic attack. Dr. Wilkes understood that her workplace had exposed her to dust and

mold, and he supported the replacement of carpets in her workplace.

       By letter dated August 19, 2005, Dr. Wilkes advised the following:

               [The claimant] has severe allergic rhinitis which was diagnosed in
               1980. She has been on allergy shots plus medications to control her
               allergies in every way. [The claimant] gets sinus infections and loses
               her voice. She makes a concerted effort to avoid allergens in her
               home and in her workplace.

                                                                         VWC File No. 228-00-96

               It is my understanding that carpets are being replaced in an effort to
               desensitize [the claimant’s] work area. I think this is a great idea.

               [The claimant] will continue the allergy treatments for the
               foreseeable future, and I hope that she will be able to control her
               environment both at home and at work to help manage her allergies,
               which are fairly severe and can be debilitating due to the loss of her

Dr. Wilkes completed a Physician’s Certificate of Health on October 3, 2005, and indicated that the

claimant suffered a “chronic cough.”       He recommended a leave of absence from “moldy

environment after flood” for an “unknown” length of time.

       On October 10, 2005, the claimant was examined by Dr. Jones on referral from Dr. Wilkes,

and reported that she suffered a cough and shortness of breath in August 2005, and had been feeling

ill for one year. She also reported exposure to a very moldy environment in September 2004 after

her workplace carpet was flooded and became moldy. The claimant stated that her symptoms

resolved when she was away from work. Dr. Jones concluded that she possibly suffered allergic

rhinitis and asthma. He noted:      “Possible occupational exposure – Possible hypersensitivity,


       The claimant continued to experience symptoms, and on December 29, 2005, Dr. Jones

completed a Physician’s Certificate of Health.        He wrote that she suffered from allergic

inflammation of the nose and lungs, and sensitivities to strong odors, hot temperatures, and mold in

the environment. On January 19, 2006, the claimant was treated at the Pulmonary Rehabilitation

Clinic. On the Initial Assessment Form, she wrote that she suffered asthma and allergies, and

worked in a place where the carpet was moldy after flooding.

                                                                           VWC File No. 228-00-96

       Dr. Jones continued to treat the claimant, and on April 24, 2006, he diagnosed

environmental allergies, asthma, and allergic inflammation of the nose and lungs. He excused her

from work since January 2006. Dr. Jones restated the claimant’s history on April 25, 2006, as

follows: “[She] . . . was exposed while working at a day-care facility to a pretty heavy, high amount

of mold and other allergens caused by water damage and mold being present in her working

facility.” Dr. Jones stated that he had reviewed the claimant’s photographs of the site and that the

pictures illustrated evidence of mold damage. On May 19, 2006, his nurse practitioner diagnosed

probable asthma exacerbation due to pollen. A lateral chest x-ray showed no acute pulmonary


       Dr. Wilkes responded to questions from claimant’s counsel dated April 12, 2006, and

affirmed that: “[T]he condition for which you are treating [is] related to her exposure to: her place

of work.” (emphasis omitted).

       After an examination, and by letter dated July 20, 2006, Dr. Wilkes concluded that: “[The

claimant] had symptoms related to mold exposure.” Dr. Wilkes advised that: “[P]erhaps [the

claimant] could find an area to work in that did not have so much mold.”

       The Deputy Commissioner held that the claimant failed to prove that her respiratory

condition was causally related to her employment. He also noted that she suffered from preexisting

allergies and that an aggravated ordinary disease of life was not compensable. We agree.

       For a condition to qualify as an occupational disease, the Virginia Workers’ Compensation

Act requires that the claimant prove that the disease: (1) arises out of and in the course of

employment; (2) has a direct causal connection to the conditions under which the work is

                                                                           VWC File No. 228-00-96

performed; (3) follows as a natural incident of the work as a result of the employment exposure;

(4) can be fairly traced to the employment as the proximate cause; (5) is not a disease to which an

employee may have had substantial exposure outside of the employment; (6) is incidental to the

character of the business and not independent of the relationship of employer and employee; and

(7) has its origin in a risk connected with the employment and flows from that source as a natural

consequence. Virginia Code § 65.2-400. The disease cannot be an ordinary disease of life which

affects the general public outside of employment. Code § 65.2-400.

       To receive compensation for an ordinary disease of life, the claimant must prove by clear

and convincing evidence that the disease: (1) arose out of and in the course of the employment;

(2) did not result from causes outside of employment; and (3) follows as an incident of an

occupational disease, is an infectious disease or contagious disease contracted in the course of

employment, or is characteristic of the employment and caused by conditions peculiar to the

employment. An employee is not required to show that the disease resulted from a “single

source, to the complete exclusion of all other sources,” but that the “primary source” was work -

related. Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991).

       We agree that the claimant failed to prove that she suffered a compensable occupational

disease or ordinary disease of life. Notably, she did not prove that her condition arose out of and in

the course of her employment. The claimant did not establish that she was exposed to mold at

work, and the photographs submitted by her did not sustain this burden of proof. There were no

tests performed in the classroom to prove the existence of mold. Morris denied finding evidence of

mold on the removed carpet, and Lang denied finding mold upon inspections.               While both

                                                                          VWC File No. 228-00-96

Drs. Wilkes and Jones were informed about the alleged mold, neither physician reviewed data

proving the existence of the allergen, beyond the claimant’s statements alluding to extreme mold


          It is noteworthy that after the removal of the carpet and the sink, and after she changed

employment sites, the claimant continued to have symptoms allegedly due to the work-related mold

exposure. As noted by the Deputy Commissioner and stated by Dr. Wilkes, she had suffered

allergic symptoms, including voice problems, for 20 years. The doctor advised that the claimant

had to manage her home and work environment to control her allergies. The evidence does not

preponderate, or prove by clear and convincing evidence, that her workplace exposed her to mold

and that no other sources caused her condition. At most, the claimant’s workplace may have

aggravated her preexisting problems.          This aggravation is not compensable under the

Virginia Workers’ Compensation Act. Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d

481, 483 (1988) (A longstanding ordinary disease of life which is aggravated by employment is

not compensable.).

          Accordingly, the Opinion below denying benefits 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.

                                       VWC File No. 228-00-96

cc:   Ms. Phyllis L. Forsythe
      4131 Lynnchester Drive
      Richmond, VA 23236

      The Children’s House, Inc.
      4000 Newby’s Bridge Road
      Chesterfield, VA 23832

      Virginia Surety Company
      222 South 15th Street
      Suite 1200
      Omaha, NE 68102


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