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OCCUPATIONAL DISEASE

If the origin of an ordinary disease of life cannot be traced to the employment as its proximate cause, aggravation of the disease is not compensable as an occupational disease. Ashland Oil Company v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983). A disease that is merely aggravated by the employment does not establish causation and is not an occupational disease. Ashland Oil Co. v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983).

A claimant must prove the existence of an occupational disease by a preponderance of the evidence. Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308(1985).

An occupational disease is one "arising out of and in the course of employment." Code Sec. 65.2-400(A). "A disease shall be deemed to arise out of the employment" when the evidence establishes six elements. Code Sec. 65.2-400(B). Elements (2) and(6) require evidence showing "[a] direct causal connection between the conditions under which work is performed and the occupational disease" and that the disease "had its origin in a risk connected with the employment and flowed from that source as a natural consequence. . . ." Code Sec. 65.2-400(B)(1) and (B)(6).

"Employment" in this section means the work or process in which the worker was engaged and not the contract of employment with the employer. Pocahontas Fuel Co. v. Godbey, 192 Va. 845, 66 S.E.2d 859 (1951).

Impairments resulting from cumulative trauma caused by repetitive motion, whether labeled injuries or diseases or however defined, are, as a matter of law, are not compensable under the present provisions of the Workers' Compensation Act. Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996).

A florist's gradually incurred allergic contact dermatitis is a compensable "disease" under the Act. First, holding that florist's allergic contact dermatitis qualifies as a disease would not threaten the coherence of the existing distinction between "injuries by accident" and "occupational diseases." The development of an allergic sensitivity to floral allergens cannot be confused with an "injury" because it is not a "mechanical or structural change in the body." Virginia Elec. and Power Co. v. Cogbill, 223 Va.354, 356, 288 S.E.2d 485, 486 (1982) (stating that an injury is "an obvious . . . mechanical or structural change in the body"). Claimant's allergic contact dermatitis occurred as a result of exposure to a chemical contained in two flowers: alstroemeria and tulips. Through a process that involved neither "repetitive motion" nor "cumulative trauma," the chemical reacted with claimant's antibodies in a way that caused her immune system to develop a hypersensitivity to the chemical. Although claimant's allergic sensitivity to the allergen in these flowers had a physical manifestation -- the contact dermatitis on her hands and arms -- her underlying problem cannot be understood as an "injury." Unlike prior attempts to set forth all-purpose definitions of disease, narrowly holding that a florist's allergic contact dermatitis is within the General Assembly's intended meaning of "disease" does not render the two categories of ailments "unnecessary and meaningless," Holly Farms/Federal Co. v. Yancey, 228 Va. 337, 341, 321 S.E.2d 298, 300 (1984), or threaten to convert the Act into "a general plan of health insurance." Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, 862 (1989). A New Leaf, Inc. v. Elaine R. Webb, 257 Va. 190, 511 S.E.2d 102 (1999). WP Version.

In United Airlines, Inc. v. Walter, 24 Va. App. 394, 396-97, 482 S.E.2d 849, 850-51 (1997), the Court of Appeals held that photosensitivity to fluorescent lighting is an injury rather than a disease.

Sec. 65.2-400(C) was amended in 1997 to state that "[h]earing loss and the condition of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] Sec. 65.2-401."

For an ordinary disease of life to be compensable under Code Sec. 65.2-401, a claimant must prove by "clear and convincing evidence, to a reasonable degree of medical certainty" 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 the employments listed in Code Sec. 65.2-401(2)(b), or is characteristic of the employment and was caused by conditions peculiar to the employment. See Chanin v. Eastern Virginia Medical School, 20 Va. App. 587, 589, 459 S.E.2d 523, 524 (1995).

An "ordinary disease of life" is a disease "to which the general public is exposed outside of the employment." See Code Sec. 65.2-401. To recover compensation for an ordinary disease of life as an occupational disease, a claimant must establish "by clear and convincing evidence, to a reasonable medical certainty, that [his illness] arose out of and in the course of his employment." Code Sec. 65.2-401.

In 1997, the General Assembly amended Code Sec. 65.2-400 to provide that "condition[s] of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] Sec. 65.2-401." The General Assembly also amended Code Sec. 65.2-401 to provide that the elements required to prove a compensable ordinary disease of life must be "established by clear and convincing evidence, (not a mere probability)." The Court of Appeals noted that the amendment deleted from the statute the words "to a reasonable medical certainty." The current statutory standard is well defined in Virginia. 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." Walker Agcy. & Aetna Cas. Co. v. Lucas, 215 Va. 535, 540-41, 211S.E.2d 88, 92 (1975) (citation omitted). The commission could properly conclude that the elements of compensable CTS had been established by clear and convincing evidence where the uncontradicted opinion of a physician was that "there is a high probability that the carpal tunnel is a result of her work environment." National Fruit Product Company, Inc.  v.  Brenda Staton, 28 Va. App. 650, 507 S.E.2d 667 (1998), Record No. 1704-98-4 (December 15, 1998), aff'd, National Fruit Product Co. v. Staton, Record No. 990428 (Va. S.Ct. March 2, 2000). WP Version. (The Court of Appeals did not err in determining that "high probability" is equivalent to "clear and convincing evidence (not a mere probability)" within the context of Code Sec. 65.2-401.)

The commission did not err in finding that claimant proved by clear and convincing evidence, as required by Code Sec. 65.2-401, that her right carpal tunnel syndrome was caused by her employment. Claimant, an auditor, used her right hand to input the day's revenue and room charges on a machine called a "micro." She operated the micro between one and three hours per shift, depending on how busy the resort was on a given day. She testified that due to the set-up of the work station, she was required to place her right hand at a forty-five degree angle while using her fingers to key in the data. The micro is a computerized cash register with a keyboard for entering data and a slot for entering invoices or "folios." Claimant's neurosurgeon noted that claimant's "day-to-day work involves using an instrument called a 'micros' which is a type of computerized cash register. She has repetitive movements that have precipitated and aggravated the carpal tunnel syndrome, with which she presently presents."  The neurosurgeon opined that "[h]er symptoms developed and became aggravated as she was using . . . an instrument called a micros, which I understand is a computerized cash register. This type of hand problem is commonly associated with this type of repetitive occupational trauma." No evidence proved that claimant had carpal tunnel syndrome or experienced symptoms related to the disease prior to her work and no evidence proved that any causes outside her work contributed to cause the condition. Furthermore, no evidence proved that carpal tunnel syndrome is a condition which may lie dormant and only become symptomatic when external aggravating factors are brought to bear. "Carpal Tunnel Syndrome is defined as: a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow." Dorland's Illustrated Medical Dictionary 1289 (26th ed. 1985).  Since 1997, the Code has provided that "'condition[s] of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] Sec. 65.2-401.'" National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507 S.E.2d 667, 669 (1998). For an ordinary disease of life to be compensable, a claimant must prove by "clear and convincing evidence, (not mere probability)" 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 the employment listed in Code Sec. 65.2-401(2)(b), or is characteristic of the employment and was caused by conditions peculiar to the employment. Code Sec. 65.2-401; see also Lindenfield v. City of Richmond Sheriff's Office, 25 Va. App. 775, 784, 492 S.E.2d 506, 510 (1997). However, disability resulting from work-related aggravation of a pre-existing disease is not compensable. See Ashland Oil Co. v. Bean, 225 Va. 1, 3-4, 300 S.E.2d 739, 740 (1983) (per curiam). "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.'" National Fruit, 28 Va. App. at 654, 507 S.E.2d at 669 (citations omitted). Based upon the neurosurgeon's statements in his letters, the commission reasonably found that "claimant's employment was the 'precipitating' factor which caused [her carpal tunnel syndrome] to 'develop.'" "Precipitate" is defined as "to cause to move or act very rapidly"; "to cause to happen or come to a crisis suddenly or unexpectedly." Webster's Third New International Dictionary 1784 (1993). Based upon the neurosurgeon's opinions and claimant's testimony, the commission, as the trier of facts, could conclude that the evidence proved clearly and convincingly that (1) the repetitive trauma at work caused the right carpal tunnel syndrome and (2) that prior to the repetitive trauma at work, claimant did not have right carpal tunnel syndrome and did not engage in repetitive activity outside work that caused or contributed to cause the development of this ordinary disease of life. Great Eastern Resort Corporation v. Gordon, Record No. 1682-99-3 (February 29, 2000). WP Version.

    The commission erred in finding claimant failed to meet her burden to prove that her carpal tunnel syndrome was caused by her work.  Claimant alleges both an injury by accident on February 25, 2000, and the occupational disease of carpal tunnel syndrome.  Claimant began working for employer in 1982 as a toll collector.  In 1994, she was transferred to a clerical position, which involved data entry, purchase orders, inventory, and requisitions.  She testified that on February 25, 2000, she was using her right hand to make her daily time entries when her hand "wouldn't work."  She could not move her fingers.  Dr. Burns first saw claimant in 1993, after she sustained a severe injury to her left arm and hand while working at the toll booth.  Dr. Burns performed surgery on her left shoulder.  However, for a while after the surgery, claimant was unable to use her left arm at all, and she began having symptoms of right hand carpal tunnel syndrome.  She had several "flare-ups" during subsequent years.  In 1999 and 2000, her right hand symptoms became much more severe.  In his letter dated January 18, 2001, Dr. Burns indicated claimant's "pain is related to her on the job injury and the recurrences that she has had is related [sic] back to her original injuries and having to use the right arm more."  Other than this letter, no evidence directly addressed causation.
    Code Sec. 65.2-400(C) provides "the condition[s] of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] Sec. 65.2-401."   Code Sec. 65.2-401 provides that the elements required to prove a compensable ordinary disease of life must be "established by clear and convincing evidence, (not a mere probability)."  The narrow issue before this Court, therefore, is whether claimant
proved by "clear and convincing evidence" that her carpal tunnel syndrome was caused by her employment.  For an ordinary disease of life to be compensable, a claimant must prove by "clear and convincing evidence, (not mere probability)" 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 the employment listed in Code Sec. 65.2-401(2)(b), or is characteristic of the employment and was caused by conditions peculiar to the employment.  Code Sec. 65.2-401; see also Lindenfeld v. City of Richmond Sheriff's Office, 25 Va. App. 775, 784, 492 S.E.2d 506, 510 (1997).  Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 612, 525 S.E.2d 55, 57 (2000).
    "Clear and convincing evidence" is 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."  National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507 S.E.2d 667, 669 (1998) (quoting Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)) (emphasis in original), aff'd, 259 Va. 271, 526 S.E.2d 266 (2000) (per curiam).
    The commission was correct in stating that a bare assertion that a condition is "work-related" does not meet the "clear and convincing" standard.  The fact that a condition is "related to" the workplace is not proof by itself of causation. However, the evidence here includes more than a bald assertion of a relationship between claimant's work and carpal tunnel syndrome.  While he employed the words, "related" and "related back," Dr. Burns explained he believed claimant's present problem with carpal tunnel syndrome was caused by her original injury at the toll booth.  The "injury" became worse due to her constant use of the computer in her new position.  He did not merely assert that the injury was related to her job; he explained how her prior and present work conditions resulted in the injury.  Additionally, no evidence proved claimant had carpal tunnel syndrome or experienced symptoms related to that condition prior to her work for employer, and the evidence proved no causes outside her employment contributed to that condition.  In this context, Dr. Burns' opinion could be considered clear and convincing evidence that claimant's condition was caused by her
work.  "We will not substitute form over substance by requiring a physician to use magic words . . . when the record is void of any evidence of non-employment factors responsible for [the condition]."  Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988).  As Commissioner Diamond said in the dissent, "[t]he Commission should not require the use of talismanic words to find causation."  Rather than viewing Dr. Burns' medical opinion in its entirety, the commission addressed only his use of the word, "related," in its decision.  A decision cannot be affirmed that emphasizes the use of one word to the exclusion of considerations of the context within which the word is used and other evidence in the record.  Agnes V. Lanning v VA Department of Transportation, Record No. 2264-01-1 (March 26, 2002). WP Version.

    MCS is an ordinary disease of life because it is a disease to which the general public is exposed outside of employment. For an ordinary disease of life to be compensable under Sec. 65.2-401, claimant must establish by "clear and convincing evidence, to a reasonable medical certainty" that the disease (1) arose out of and in the course of employment, (2) did not result from causes outside of the 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 employment and was caused by conditions peculiar to the employment. Island Creek Coal v. Breeding, 6 Va. App. 1, 11, 365 S.E.2d 782, 788 (1988). Where claimant's expert testimony was based on an incorrect understanding of the facts of the claimant's work environment, claimant spent only fifty percent of her time at the workplace, was exposed to the aggravating chemicals outside of work, no doctor isolated the chemical(s) causing the sensitivity (While the statute does not require that a single source of the claimant's disease be pinpointed, it does require that the "primary source [be] determined by 'reasonable medical certainty.'" Ross Laboratories v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991). Such a determination must be based on evidence that "it is at least more probable than not that the disease arose out of and in the course of employment." Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 224, 372 S.E.2d 411, 416 (1988)), and claimant offered no evidence of chemicals in her work environment. Because no evidence exists of chemical exposure in claimant's employment environment, claimant did not meet her burden of proving by "clear and convincing evidence" to a reasonable medical certainty that her disease arose out of and in the course of her employment, as required by Code Sec. 65.2-401. Chanin v. Eastern Virginia Medical School, 20 Va. App. 587, 589, 459 S.E.2d 523, 524 (1995).

The General Assembly, by enacting Code Sec. 65.2-402, expressly indicated its intent that occupational "heart disease" will be included as a compensable "disease." Even if all heart disease is caused gradually by the process of trauma, the General Assembly has expressly removed this ailment from those cumulative trauma conditions that are otherwise not compensable as a "disease" when it is incurred by the public servants enumerated in the statute. City of Hopewell  v.  Michael W. Tirpak, Record No. 1369-97-2, July 28, 1998.

Teasley v. Montgomery Ward & Co., 14 Va. App. 45, 415 S.E.2d 596 (1992) recognized that "purely psychological disability resulting from disagreements over managerial decisions and conflicts with supervisory personnel that cause stressful consequences which result in purely psychological disability ordinarily are not compensable." Id. at 49, 415 S.E.2d at 598.

Psychological Injury. Claimant was trapped in an elevator for two hours and claimed post traumatic stress syndrome (PTSD) as a result. Claimant did not suffer from claustrophobia and did not require any immediate medical treatment after the incident. "To qualify as a compensable injury by accident, a purely psychological injury must be causally related to a physical injury or to a sudden shock or fright arising in the course of employment." Id. at 88, 515 S.E.2d at 349 (citing Chesterfield County Fire Dept. v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180, 182 (1990) (citing Burlington Mills Corp. v. Hagood, 177 Va. 204, 209-11, 13 S.E.2d 291, 293-94 (1941))). Specifically, "post-traumatic stress disorder is a compensable injury" within the meaning of the workers' compensation statute "if caused by either a physical injury or an obvious sudden shock or fright arising in the course of employment." Daniel Constr. Co. v. Tolley, 24 Va. App. 70, 77, 480 S.E.2d 145, 148 (1997). In the present case, the incident of August 11, 1997, as described by claimant, does not rise to the level of an obvious fright or sudden shock as contemplated in Hercules v. Gunther, 13 Va. App. 357, 412 S.E.2d 185 (1991), or Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941). The evidence supports the commission's determination that although claimant may have experienced "discomfort and anxiety" from being trapped in the elevator for two hours, the event was not "unexpected, shocking, or catastrophic" so as to qualify as a compensable psychological injury. Credible evidence also supports the commission's determination that claimant failed to prove she suffered from a compensable occupational disease. Here, the medical evidence demonstrated a long-term history of psychological problems, the death of the claimant's father shortly before she was trapped in the elevator, and the commission was not required to accept the opinion of the treating physician when countered by other evidence. Accordingly, the commission did not err in finding that claimant's PTSD was not an aggravation of an ordinary disease of life. See Owens v. Virginia Dept. of Transp., 30 Va. App. 85, 88, 515 S.E.2d 348, 349 (1999) (holding that the sound of a falling utility cover was not an unexpected event and that the evidence was insufficient to prove an aggravation of claimant's pre-existing PTSD). Linda L. Hill v. Travelodge and Selective Ins. Co., Record No. 0653-99-2 (December 28, 1999). WP Version.

Asthma. The Workers' Compensation Commission (commission) did not err in finding that claimant failed to prove that his asthma constituted a compensable occupational disease. A claimant must prove the existence of an occupational disease by a preponderance of the evidence. See Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). The commission treated claimant's asthma as an ordinary disease of life pursuant to Code Sec. 65.2-401. Claimant did not challenge that classification. For an ordinary disease of life to be treated as a compensable occupational disease, claimant had to prove, by clear and convincing evidence, to a reasonable degree of medical certainty, that his asthma arose out of and in the course of his employment, did not result from causes outside of his employment, was characteristic of his employment, and was caused by the conditions peculiar to his employment. See Teasley v. Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50, 415 S.E.2d 596, 598 (1992); see also Code Sec. 65.2-401. While one doctor indicated that the claimant had occupational asthma from his recent employment, a review of his office notes fails to indicate any specific exposure that the claimant had. There is no mention of solvents or bronze dust as the claimant testified. In fact, his notes merely reflect that the claimant suspected it is the work that is causing the condition but specifically noted he could not pinpoint any source of irritation at work. A report from another doctor indicated exposure to bronze dust with a causal connection, but this was based solely on the history provided by the claimant and the assumption that the claimant operates a bronze machine. The history provided by claimant was suspect. The claimant did not operate nor work in the bronzing machine area. He did, however, place the borders on such cards. The testimony of the claimant and a coworker were contradictory concerning the amount of dust in the area . . . . [T]he study of the air quality failed to find sufficient particles of bronze dust or solvents in either the claimant's work area or the room where the press was located. Claimant had prior non work-related respiratory problems. There were various histories throughout the years concerning the claimant's wheezing when exposed to various potential allergens. The claimant did not appear to be forthright in his testimony concerning some of these previous difficulties. There were conflicting reports in the medical records and the claimant's testimony concerning his cigarette usage. The various medical reports noted tobacco-related bronchiolitis. When presented with additional information, the other doctor indicated that he could not say within a reasonable degree of medical certainty that the work exposure was the primary cause of the claimant's condition. The commission was entitled to discount the other doctor's opinion of causation in light of the conflicts between his report and the witnesses' testimony and his uncertainty in his opinion when confronted with additional information. Phillip A. Carper v. National Wildlife Fed., Record No. 1442-99-4 (February 15, 2000). WP Version.

Last Injurious Exposure

Code Sec. 65.2-404 states that "the employer in whose employment [the employee] was last injuriously exposed to the hazards of the disease and the employer's insurance carrier, if any, at the time of the exposure, shall alone be liable . . . , without right to contribution from any prior employer or insurance carrier." By its terms, Code Sec. 65.2-404 addresses only the liability of the employer in whose employment the employee was last injuriously exposed, and its insurance carrier, in contradistinction to prior employers and their insurance carriers. Code Sec. 65.2-404 identifies the employer that is to be held liable and excludes prior employers from liability. See Cooper v. Mary E. Coal Corp., 215 Va. 806, 214 S.E.2d 162 (1975); Uninsured Employer's Fund v. Harold C. Mounts, Record No. 2116-96-3 (April 22, 1997), 24 Va. App. 552, 484 S.E.2d 140 (1997), aff'd, 255 Va. 254, 497 S.E.2d 464 (1998) WP Version.

The Commission properly denied claims for an award of benefits for asbestosis, an occupational disease, on the ground that claimants failed to prove that they were last injuriously exposed to asbestos at a jobsite while employed by employer where they made no contemporaneous reports of asbestos, and more credible testimony established no asbestos had been used. Oscar R. White, et al. v. C. J. Coakley Company, Inc., Record No. 2345-98-2 (May 4, 1999). WP Version.

Communication.

An occupational disease is not compensable under the Act until a diagnosis of the occupational disease has been communicated to the employee. See Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 9, 365 S.E.2d 782, 787 (1988); Code Sec. 65.2-403. "The diagnosis need not contain precise medical terminology as long as the diagnosis is definite and informs the claimant in clear and understandable language that he or she is suffering from a disease that arises out of and in the course of employment." Via v. Citicorp Mortgage, Inc., 10 Va. App. 572, 576, 394 S.E.2d 505, 507 (1990).

A physician's diagnosis of an employee's condition is not dispositive on the issue of compensability and physicians often reach different conclusions about a condition's origin. [O]nce an employee receives a communication of an occupational disease, it is incumbent upon that employee to file a claim. Once a claim is filed, it is the duty of the Commission to determine: (1) whether the disease is in fact an "occupational disease" as defined in Code Sec. 65.1-46, and if so, (2) whether that occupational disease is compensable. Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343 S.E.2d 455, 458-59 (1986).

Code Sec. 65.2-406 (A)(5) does not require that an employee receive from a physician a communication that his disease is work related; rather, the statute only requires that the employee, simultaneously with or sometime after the diagnosis of his condition, learn that the condition is an occupational disease for which compensation may be awarded. See Ratliff v. Dominion Coal Co., 3 Va. App. 175, 349 S.E.2d 147 (1986) (where the Court held that a 1979 letter from the Department of Labor was "a medical determination of total disability due to pneumoconiosis," so as to trigger not only the running of the three year limitation period under the federal law but also under the Virginia Workers' Compensation Act). In Ratliff, the Court rejected the claimant's argument that a letter from the Department of Labor was an administrative or legal determination, not a "medical determination." Id.

Code Sec. 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." City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 131-32,493 S.E.2d 661, 666 (1997) (citations omitted). Where 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, and claimant at that time, took immediate precautions to avoid exposure to latex gloves at work, but did not file her claim until 1997, her claim seeking an award of compensation for an occupational disease of contact dermatitis was not timely filed. Kathryne Smith v. Fairfax Hospital and Inova Health System Foundation, Inc., Record No. 1681-98-4 (Ct. of Appeals, December 8, 1998).

Possibility not enough. "Possible pneumoconiosis." An opinion that an employee "may have pneumoconiosis," Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 51, 122 S.E.2d 666, 668 (1961), is not a positive diagnosis of an occupational disease because it "would indicate that claimant might or might not have had pneumoconiosis." Id. at 52, 122 S.E.2d at 669. Such a diagnosis is "not sufficiently definite to apprise [an employee] that he had contracted the disease." Id. Consequently, the court held that this "tentative diagnosis will not trigger the running of the limitation period." Via v. Citicorp Mortgage, Inc., 10 Va. App. 572, 576, 394 S.E.2d 505, 507 (1990).

Citing Jewell Ridge Coal Corp. v. Vance, 203 Va. 557, 125 S.E.2d 879 (1962), the Fund contends that, as a matter of law, Mounts' illiteracy "has no impact on the effectiveness of the communication of the knowledge imparted by the written report." We disagree with the Fund's interpretation of Vance. Although Vance "could neither read nor write," id. at 558, 125 S.E.2d at 880, a witness testified that he heard a personnel office employee explain the physician's report to Vance, tell Vance that his chest examination was below the required physical standards, and inform Vance that Vance "'would have to waive his right to claim compensation for silicosis or any aggravation of it.'" Id. at 559, 125 S.E.2d at 880. The witness testified that Vance deliberated for more than thirty minutes and then signed the waiver. See id. On this evidence, the Court held that "the Commission found as a fact that [Vance] executed the waiver under the circumstances related by [the witness], and . . . this finding is binding on [appeal]." Id. at 559, 125 S.E.2d at 881 (emphasis added). Uninsured Employer's Fund v. Harold C. Mounts, Record No. 2116-96-3 (April 22, 1997), 24 Va. App. 552, 484 S.E.2d 140 (1997), aff'd, 255 Va. 254, 497 S.E.2d 464 (1998) WP Version.

Under settled principles, an occupational disease is compensable under the Act when a diagnosis of occupational disease is communicated to the employee. See Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 9, 365 S.E.2d 782, 787 (1988); Code Sec. 65.2-403. Claimant testified that in his discussions with his treating physician after claimant's admission to the hospital  that his doctor told him that his work was responsible for his heart problem. Based on this evidence, the commission found "that [the doctor] told [claimant] his work was responsible for his heart condition," quoting claimant's testimony that he and his doctor had "talked about it two or three different times" during the course of his hospitalization and surgery. Claimant proved his entitlement to benefits accrued on January 18, 1996, the date of his myocardial infarction and the date of communication to him by his doctor.  Tazewell County Sheriff's Office v. Owens, Record No. 0005-99-3 (June 29,1999). WP Version.

Dr. DeLorenzo opined that Hudson suffers from "a peripheral neuropathy with both sensory and motor components, as well as evidence of central nervous system damage . . . probably . . . in the spinal cord . . . called a myelopathy." Dr. DeLorenzo testified that to a reasonable degree of medical certainty the damage to Hudson's nervous system was caused by his unprotected exposure to paint solvents and chemicals in the workplace. Dr. DeLorenzo opined that Hudson's condition could have been caused by "one or two very large exposures in the workplace, which it's my understanding that that happened . . . or [by] chronic accumulation." Dr. DeLorenzo stated that Hudson's condition was probably due to both causes and was "[d]efinitely not" due to an idiopathic cause. Dr. DeLorenzo stated that Hudson's condition was attributable to either situation or both. Based upon Hudson's testimony and Dr. DeLorenzo's opinions, the commission properly concluded that "the particular event on June 1, 1995 produced a definitive change in [Hudson's] condition, such that it suddenly and unexpectedly produced the myriad effects in [Hudson's] central nervous system that significantly altered his condition."  
    The Supreme Court's recent decision in A New Leaf, Inc. v. Webb, 257 Va. 190, 511 S.E.2d 102 (1999) WP Version, is dispositive of this issue. In Webb, the Supreme Court held that a florist's allergic contact dermatitis was compensable as an occupational disease because it was caused by a reaction to allergens in certain flowers encountered in the claimant's job as a florist, not by cumulative trauma induced by repetitive motion. See id. at 192, 511 S.E.2d at 102. Credible medical evidence, including the medical records and opinions of Dr. DeLorenzo, proved that Hudson's polyneuropathy or peripheral neuropathy was caused by the reaction of his body to unprotected high exposure to paint solvents and chemicals in the workplace, whether over an extended period of time or over several large exposures. No evidence established that Hudson's condition was caused by cumulative trauma induced by repetitive motion. Accordingly, the commission did not err in holding that Hudson's condition is a compensable occupational disease within the meaning of the Workers' Compensation Act. Hudson Venetian Blind Service, Inc. v. Donald A. Hudson, Record No. 1611-98-2 (May 18, 1999). WP Version.

Carpal Tunnel Syndrome Can be an Injury by Accident. A claimant's carpal tunnel syndrome may be compensable as an "injury by accident" or an "occupational disease," depending on how it develops. See Rocco Turkeys, Inc. v. Lemus, 21 Va. App. 503, 507, 465 S.E.2d 156, 158 (1996). Carpal tunnel syndrome, which is a condition that exhibits a characteristic set of symptoms caused by compression of the median nerve in the carpal tunnel, will qualify as a disease when it develops as the body's response to environmental factors, infective agents, or inherent defects of the body. Carpal tunnel syndrome may be caused by a number of precipitating factors or events, such as repetitive motion, cumulative trauma, obesity, rubella, pregnancy, rheumatoid arthritis, gout, and hypothyroidism, or a traumatic injury. Id. (citing 2 Cecil Textbook of Medicine 1563 (19th ed. 1992)) (emphasis added). Accordingly, carpal tunnel syndrome may qualify as an "injury by accident" under Code Sec. 65.2-101 or as an "occupational disease" under Code Sec. 65.2-401, depending upon its pathology or how it is incurred. In injury by accident cases, the clear and convincing evidence standard does not apply. "[T]he claimant had the burden of establishing, by a preponderance of the evidence, and not merely by conjecture or speculation, that [he] suffered an injury by accident which arose out of and in the course of the employment." Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258-59 (1985) (citations omitted). The evidence in the instant case proved that claimant's carpal tunnel syndrome was not an injury of gradual growth or the result of cumulative trauma. Indeed, the commission specifically found that claimant's injuries occurred while performing a single act, stating the following: The record establishes that the "identifiable incident" in this case commenced when the claimant felt a sudden onset of pain in the right arm while lifting the fuel hose and adapter above shoulder level. He then lost strength shortly thereafter in his right arm. At some juncture during this incident the claimant also suffered a puncture wound to the dorsum of his right hand. As in a motor vehicle accident that can cause more than one structural or mechanical change in the body so too did this incident cause greater than one bodily change. The event causing these two insults to the body must be viewed as a unitary whole rather than two disparate occurrences. Regardless of the sequence, the injuries occurred while claimant was performing a single act. ( Here, credible evidence supports the commission's finding that claimant proved (1) that his carpal tunnel syndrome appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden precipitating event, and (3) that it resulted in an obvious sudden mechanical or structural change in the human body. See Southern Express v.Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999)(chilblains that the claimant suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour period constituted an 'injury by accident' under the Act). Accordingly,  the commission did not err in finding that claimant's carpal tunnel syndrome constituted an "injury by accident" within the meaning of Code Sec.65.2-101. Ogden Aviation Services v. Saghy, Record No. 1179-99-4 (April 4, 2000). WP Version.

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. Claimant was employed 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. In this case, claimant failed to prove all of the conditions specified in the statute. Specifically, Code Sec. 65.2-400(B)(4) states that the disease cannot be one to which an employee would have substantial 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 Sec. 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, claimant's hand eczema was an ordinary disease of life and was not an occupational disease. Under Code Sec. 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 Sec. 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 Sec. 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 Workers' Compensation Act. 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. The Genie Company v. Marsha Hammer, Record No. 0914-99-3 (April 25, 2000). WP Version.

Te commission did not err in finding (1) that the claimant's left-hand carpal tunnel syndrome is a compensable ordinary disease of life, and (2) that she was entitled to temporary total disability benefits after June 19, 1998 because of her right-hand carpal tunnel release surgery. The claimant was a fatback trimmer who used a motorized circular knife to trim meat. She held the knife with her right hand and pulled the meat with her left. The claimant's job required sixty weight-bearing repetitive motions per minute. Prior to working for the employer she had no medical problems involving her hands or wrists. The claimant did not engage in any non-work related activities that could have caused her CTS, and she did not have any problems with her hands or wrists before working for the employer. The claimant's previous job as a line worker chopping meat at another plant is immaterial because her CTS symptoms did not develop until she worked for the employer. In order to prove a compensable ordinary disease of life under Code Sec. 65.2-401, the claimant must establish "by clear and convincing evidence, to a reasonable medical certainty," that her injury arose out of and in the course of her employment. See Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). Evidence is clear and convincing when it produces in the fact finder "a firm belief or conviction as to the allegation sought to be established. It is . . . 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." Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (citation omitted). In National Fruit Product Co. v. Staton, 28 Va. App. 650, 654, 507 S.E.2d 667, 669 (1998), aff'd, __ Va. __, __ S.E.2d __ (2000), the Court affirmed the claimant's award of benefits. The claimant's doctor opined that there was a "high probability" the employment caused her CTS. The court held that the doctor's opinion, coupled with the claimant's own testimony, satisfied her burden of proving the injury arose out of and in the course of her employment by clear and convincing evidence. Unlike Staton, Dr. Leibovic's opinion that the claimant's employment "possibly caused" her CTS was not the only evidence of causation. Dr. Lee, the claimant's treating physician, definitively stated her CTS arose out of and in the course of her employment. This November 11, 1997 opinion was uncontradicted and corroborated the claimant's testimony. Additionally, Dr. Tetalman indicated that her CTS initially arose from "cumulative trauma syndrome," which logically resulted from her work for the employer. Dr. Brewer's indication in January 1998 that the claimant's symptoms were of questionable origin does not refute the fall diagnosis. Gwaltney of Smithfield v. Clarice Cypress, Record No. 2505-99-1 (April 25, 2000). WP Version.

In an earlier decision, the commission found that Harris suffered from a compensable occupational disease in that she had developed an allergic reaction to the chemicals in her workplace. The employer did not appeal that decision. Accordingly, any further consideration of whether claimant's original occupational disease is causally related to her employment is barred by res judicata. See K & L Trucking Co., v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985) (finding that the doctrine of res judicata is applicable to decisions of deputy commissioners and the full commission). Thus, the issue now on appeal is whether the evidence proves that claimant's current disability and allergic reactions are causally related to the industrial disease. Claimant's chemical sensitivity and her current sensitivity to other allergens in the environment are the same sensitivity that she developed due to the exposure to chemicals in the workplace. The commission's finding that claimant's chemical sensitivity is causally related to her exposure to the x-ray chemicals is supported by credible evidence. The finding that claimant is partially disabled because she has become "sensitized" as a result of her exposure to the chemicals in her pre-injury work is supported by credible evidence. In concluding that claimant has not recovered from her disability and, therefore, has not obtained her pre-injury status, the commission relied on its holdings in Blevins v. Smyth County Vocational School, VWC File No. 185-57-17 (July 1, 1998), and Pruett v. J & R Electric Contractor, Inc., VWC File No. 160-30-44 (Nov. 30, 1993). In Blevins, the claimant suffered from hypersensitivity pneumonitis. The claimant's treating physician opined that the claimant was "not disabled and has the capacity to do any other job in which such exposure would not be required." The physician further stated that the claimant "has been suffering from recurrent bouts of hypersensitivity pneumonitis related to exposure to work place allergens to which he has been sensitized. With removal of that exposure his hypersensitivity has resolved." The commission found, based on the physician's report, that the claimant was partially disabled. In Pruett, the claimant was an electric motor winder. In that capacity, the claimant frequently was exposed to fumes from soldering and welding, dipping the motors into a vat of epoxy or hot varnish, and cleaning the housing. The claimant began to experience respiratory problems and was diagnosed with industrial asthma. His treating physician opined that his condition was caused by exposure to fumes in the workplace. In finding that the claimant was disabled, the commission noted that the claimant's treating physicians opined that the claimant could not return to his pre-injury work because "he has become sensitized to chemicals to which he is exposed in that employment. Therefore, he has not reached his pre-injury employment status inasmuch as he was not sensitized before he became disabled." The commission's rationale in Blevins and Pruett is sound and persuasive. Credible evidence supports a finding that claimant is currently partially disabled in that she continues to suffer from symptoms related to the allergic chemical reaction and is unable to perform her pre-injury work. the commission did not err in determining claimant adequately marketed her residual work capacity. The commission found that claimant contacted, on average, at least two employers per week. She actively searched computer databases and newspaper classified advertisements. Although the rehabilitation counselor testified that claimant's school class schedule was an obstacle in obtaining employment, claimant testified that, if she found suitable employment that conflicted with her class schedule, she would withdraw from her classes. The evidence sufficient to support the commission's finding that claimant made a reasonable effort to market her residual capacity. Tidewater Physicians Multispecialty v. Harris, Record No. 2207-99-1 (May 30, 2000). WP Version.

Type of Pneumoconiosis. The commission ruled that the claimant "is conclusively presumed to have coal workers' pneumoconiosis because the majority of experts believe he has some form of pneumoconiosis and the parties have stipulated to his injurious exposure to coal dust." Credible evidence supports the commission's findings and the commission's ruling is consistent with Code Sec. 65.2-504(C). As held in Fleming v. Lambert Coal Co., 74 OWC 183 (1995), where there is a question whether the claimant has coal workers' pneumoconiosis or another type of pneumoconiosis, Code Sec. 65.2-504(C) provides that it shall be conclusively presumed a claimant has coal workers' pneumoconiosis if a claimant with pneumoconiosis is injuriously exposed to coal dust. Code Sec. 65.2-504(C) provides as follows: In any case where there is a question of whether a claimant with pneumoconiosis is suffering from coal worker's pneumoconiosis or from some other type of pneumoconiosis such as silicosis, it shall be conclusively presumed that he is suffering from coal worker's pneumoconiosis if he has had injurious exposure to coal dust. In addition, the Workers' Compensation Act states that "[p]neumoconiosis . . . includ[es] but [is] not limited to silicosis and asbestosis." Code Sec. 65.2-503(B)(17). Island Creek Coal Company v. Larry Miller, Record No. 0402-00-3 (July 18, 2000). WP Version.

    Post traumatic stress disorder ("PTSD") can, and in this case does, constitute an occupational disease rather than an ordinary disease of life.  During the first ten years of his employment, claimant worked as a paramedic and then became a paramedic supervisor with the rank of captain. In both of those positions, claimant responded to approximately ten emergency calls per day.  As a supervisor, he responded to the "big serious calls with lots of people needing medical care."  Those emergency calls included incidents such as airplane crashes, amputations and decapitations, automobile accidents with multiple victims, shootings, stabbings, and house fires with fatalities of entire families.  Beginning in the early 1990's, claimant was assigned to various administrative posts that did not require him to respond to emergencies. However, every two months, claimant worked a 24-hour shift involving emergency response in order to maintain his certification as a paramedic.  Claimant was working such a shift on March 10, 1996, when he responded to a fire at a residence that resulted in multiple burn injuries to several people and one fatality.  The fire was especially disturbing to claimant because it reminded him of a horrible house fire to which he had responded fifteen to twenty years earlier in which six members of a family, including children and grandparents, had perished.  While claimant was treating a five-year-old girl at the March 10 fire, the child inquired about her stepmother.  Claimant had just pronounced the stepmother dead at the scene of the fire, and he was aware that the child's father was critically injured.  In describing his reaction to the child's question, claimant stated that he "became removed from the scene. I was outside of myself."  He said that he felt a "shroud of darkness" come over him and that he had difficulty breathing.
    Three days after the incident on March 10, a psychologist, Dr. Lindahl, described Mottram as "noticeably more distressed, and . . . becoming seriously depressed."  Dr. Lindahl concluded that it "is difficult to separate out the impact of the [March 10] call on Mr. Mottram's condition. . . . Clearly, he had some symptoms of PTSD when he first came on [March 4]; however, his symptoms worsened into a serious PTSD and major depression after the [March 10] incident."  By December 1996, claimant was suicidal and had to be hospitalized for treatment, which included electroconvulsive therapy.  In a series of medical status reports from March 1996 through June 1996, Dr. Lindahl consistently described the March 10, 1996 episode as the "critical incident."  However, she also separately noted that claimant "has chronic PTSD, so other work-related incidents also contributed."  Dr. Lindahl further stated that there is no evidence that claimant was exposed to critical incidents outside his employment.  Likewise, at a hearing on his workers' compensation claim, claimant testified that he had not been exposed to medical emergencies or fires, nor had he witnessed death or violent trauma, outside the circumstances of his employment with the employer.  It was the psychologists opinion that "Capt. Mottram is suffering from an occupational disease which arises out of the course of his employment in the Fairfax County Fire Department. It is well-documented in the psychological literature that emergency services workers are at increased risk for Post-Traumatic Stress Disorder, and there is some evidence indicating that the longer the exposure, the more severe the reaction. Mr. Mottram had a long career in the Fire Department with exposure to many critical incidents. As a result, he has developed Post-Traumatic Stress Disorder that is chronic and cumulative."  Dr. Lindahl stated that claimant's exposure to critical incidents resulted in "neurochemical alterations in multiple neurotransmitter systems."  
    Dr. Randolph A. Frank, Jr., a psychiatrist, concurred in the diagnosis of PTSD.  Dr. Frank opined that claimant's PTSD was "incurred in the line of duty as characterized by marked and intrusive distressing recollections of events noted in a number of calls that he was involved in, recurrent distressing dreams, significant symptoms of increased arousal and anxiety, sleep disturbance, severe difficulty concentrating, and extreme hypervigilance."
    The Employer does not dispute that claimant suffers from PTSD. The legal issue of the mixed question of law and fact, is whether PTSD is a compensable disease within the purview of the Virginia Workers' Compensation Act, specifically either Code Sec. 65.2- 401 (establishing criteria for compensable ordinary disease of life), or Code Sec. 65.2-400 (defining occupational disease).  However, before deciding whether PTSD is compensable under either of these statutory provisions, it must first be determined whether PTSD qualifies as a disease. Merillat Indus. v. Parks, 246 Va. 429, 432, 436 S.E.2d 600, 601 (1993).
    Credible evidence, including an literature referred to by Dr. Lindhal, establishes that claimant's repeated exposure to traumatic stressors caused reactions in his neurobiological systems, much like the reaction of the employee's immune system in A New Leaf, Inc. v. Webb, 257 Va. 190, 511 S.E.2d 102 (1999). Thus claimant's PTSD is a disease.
    Employer acknowledges that, of the six statutory factors required to establish an occupational disease, only number four is at issue in this appeal, whether PTSD is a disease to which claimant may have had substantial exposure outside of his employment. See Code Sec. 65.2-400(B).  "The question whether a condition or disease is an ordinary disease of life [or an occupational disease] is essentially a medical issue to be decided by the trier of fact based on the evidence presented."  Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d 481, 483 (1988); Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544, 550, 425 S.E.2d 525, 529 (1993). Contrary to the Employer's argument, the focus is not on the many causes of PTSD and whether some of them may be found outside of an employment situation.  Instead, the focus must be on the nature of the employee's occupation and the relationship between that occupation and the specific disease, as contrasted to diseases that are readily found in other occupations or ordinary life.  See 3 Arthur Larson, Larson's Workers' Compensation Law Sec. 52.03[2] (2001).  Dr. Frank emphasized that claimant's PTSD was "intimately related to his service-connected activities."  Moreover, there is no evidence that claimant was exposed to traumatic events outside his employment.  Thus, based on the record in this case, as a matter of law, claimant's PTSD is an occupational disease under Code Sec. 65.2-400. See Mims v. McCoy, 219 Va. 616, 618, 248 S.E.2d 817, 818 (1978)(where the evidence was not in conflict, whether an individual was a covered employee entitled to workers' compensation benefits was a question of law for the court).
    PTSD may be compensable as an injury by accident, depending on the circumstances under which the condition developed. Mottram v. Fairfax County Fire & Rescue, 35 Va. App. 85, 93, 542 S.E.2d 811, 814 (2001).  See also Burlington Mills Corp. v. Hagood, 177 Va. 204, 210-11, 13 S.E.2d 291, 293 (1941) (traumatic neurosis caused by sudden shock or fright without any physical impact may be compensable as an injury by accident).  PTSD is, in some situations, an ordinary disease of life. See, e.g., Teasley v. Montgomery Ward & Co., 14 Va. App. 45, 49-50, 415 S.E.2d 596, 598-99 (1992) (employee's PTSD was an ordinary disease of life because employee had numerous sources of stress outside of the employment that contributed to his condition). However, the credible evidence in this case establishes that claimant's PTSD is an occupational disease. In other words, each case turns upon its own facts.  Fairfax County Fire and Rescue v. Mottram, Record No. 010791 (March 1, 2002). WP Version.   Summary of prior Court of Appeals decision follows: Post traumatic stress disorder ("PTSD") can constitute an occupational disease.  On March 10, 1996, claimant, a paramedic and an EMS supervisor, responded to a major fire. After dealing with multiple burn injuries and a fatality, he was assigned to evaluate victims who had escaped the fire. One of these victims, a five-year-old child, asked about her stepmother. Mottram was "taken back" because he had just pronounced the woman dead. The question shocked him. He felt as though he had just been "punched in the stomach." He testified that although some of his previous experiences had been troublesome, he had never before felt like that and nothing had so immobilized him.
    PTSD may be compensable as an "injury by accident" or as an "occupational disease," depending on how it develops. under appropriate circumstances, PTSD may be compensable as an injury by accident. See Hercules v. Gunther, 13 Va. App. 357, 412 S.E.2d 185 (1991). In Hercules, a power plant truck driver was delivering rocket propellant to a building. As he walked toward the building, it exploded. Although he sustained only minor physical injuries, two of his friends, with whom he had just been talking, were killed. Thereafter, he was diagnosed with PTSD. Affirming the commission's award, the Court of Appeals held that the driver's PTSD was compensable as an injury by accident because it resulted from "an obvious sudden shock or fright arising in the course of employment." Id. at 362-63, 412 S.E.2d at 188. See also Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941) (holding that a nervous condition resulting from a sudden shock or fright without physical impact may be compensable).
    PTSD has also been addressed as a disease. See Teasley v. Mongomery Ward & Co., 14 Va. App. 45, 415 S.E.2d 596 (1992); Marcus v. Arlington County Bd. of Supervisors, 15 Va. App. 544, 425 S.E.2d 525 (1993). In Teasley, the employee, following an ongoing series of disagreements, had a confrontation with his supervisor over his work assignments. He broke down emotionally and was diagnosed with PTSD. He sought benefits, contending that his PTSD was an occupational disease. The commission held that PTSD was "an ordinary disease of life to which the general public is exposed outside of employment." It denied the employee's claim because he failed to prove entitlement to compensation under Code Sec. 65.1-46.1 (now Code Sec. 65.2-401). Holding that the evidence supported those findings, the court affirmed that decision. Teasley, 14 Va. App. at 49-50, 415 S.E.2d at 598-99. In Marcus, an emergency communications technician supervisor developed "traumatic stress reaction with physical manifestations." Her duties as an emergency communications technician supervisor included the dispatch of police, fire and ambulance units and counseling subordinate personnel to help them deal with the stress of their duties. Finding that traumatic stress reaction "is the same kind of reaction that occurs in a setting outside of the employment," the commission held that Marcus' condition was an ordinary disease of life. Affirming, the court said: Physical reactions to stress, such as those experienced by Marcus, are suffered by much of the population and are caused by a variety of factors. Indeed, the commission found that the symptoms Marcus experienced were caused not only by her job, but also by events outside of her employment -- events to which the general public is exposed outside of the employment -- . . . . We find that this conclusion is supported by credible evidence in the record and, accordingly, we will not disturb the commission's finding on appeal. See Knott v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d 481, 483 (1988) ("the question whether a condition or disease is an ordinary disease of life is essentially a medical issue to be decided by the trier of fact based on the evidence presented"). Marcus, 15 Va. App. at 550, 425 S.E.2d at 529.
    In A New Leaf, Inc. v. Webb, 257 Va. 190, 511 S.E.2d 102 (1999), the Supreme Court addressed the distinction between injury and disease. Webb, a flower shop employee, suffered allergic contact dermatitis resulting from physical contact with chemicals in flowers. Her condition was described as a "reaction of the body's immune system to the substance to which that person is sensitive." Id. at 197, 511 S.E.2d at 105. Distinguishing between the body's response to irritating stimuli and physical impairment based on cumulative trauma resulting from repetitive motion, the Court held that Webb's condition was a disease. Id. at 197-98, 511 S.E.2d at 105. Webb's condition was physical. Claimant's condition in this case is psychological. However, the two cases are analogous. Just as Webb's condition resulted from a bodily reaction to irritating stimuli, claimant's condition resulted, as stated by one of claimant's physicians, from "neurochemical alterations in multiple neurotransmitter systems . . . [being] a result of [his body's] adaptive survival responses." Thus, claimant's condition is a disease.
    When based upon a single physical injury or obvious sudden shock or fright, PTSD may be considered an injury by accident, when it is suffered as a result of ongoing stress, it qualifies as a disease. Therefore, having identified claimant's condition as resulting from multiple stressful events, the commission erred in designating it an injury and in refusing to consider it as a disease.  Because PTSD is a condition that may develop from the general stresses of life and is not necessarily tied to occupational stress, it is an ordinary disease of life as defined by Code Sec. 65.2-401. Therefore, the commission must determine whether, under the circumstances of his case, that condition is nonetheless compensable under the provisions of Code Sec. 65.2-401. Mottram v. Fairfax County Fire & Rescue, 35 Va. App. 85, 542 S.E.2d 811(2001), Record No. 1472-00-4 (March 6, 2001). WP Version. 

   Claimant proved by clear and convincing evidence that her carpal tunnel syndrome (CTS) was a compensable disease under Code Sec. 65.2-401 because the medical evidence provided a sufficient causal link between claimant's CTS and her employment.
    Claimant worked as a cook, but for about two years in the mid 1990s, she worked as a janitor.  Claimant's janitorial work required her to shovel more than a ton of coal into the school's furnaces on a daily basis.  She also "worked on the furnace, took ashes out," mowed grass, used a "weed eate[r]," and installed windows.  In about 1996, she returned to working as a cook, and she worked as a cook throughout the remainder of her employment.  Claimant described her work as a cook as follows:  "[W]e cook hamburger meat which is 40 to 50 pounds in a case.  We stock.  We put all of our stock away.  We put all of our produce away.  We're constantly lifting pans, kettles, washing, mopping, we lift tables."  She agreed her job involved "repetitive lifting, rotating, bending and use of [her] wrist."  About three years prior to the December 2000 hearing, claimant began to experience problems with her arms and wrists.  She "thought it was just [the] lifting" causing her "wrists [to] get sore," and she "never thought [anything] about it" "because [she] enjoyed working."  However, when her "hands kept getting worse" and began "going numb and drawing up on her," she decided to seek medical attention.  At that time, she was engaged in no hobbies or any other activities outside of work.
    Dr. Bhatti saw claimant on December 22, 1999, after another doctor removed the nodules from claimant's elbows.  Dr. Bhatti recommended that claimant undergo a bilateral CTS release for her "[b]ilateral moderate to severe median nerve compression."  Claimant confirmed that Dr. Bhatti told her in December of 1999 that she had bilateral CTS which was worse on the left.  In early 2000, claimant saw Dr. Robert Evans, an osteopath, for continuing complaints of pain in her hands.  He noted she had CTS and was waiting until school was out to have
decompression surgery.  In his February 26, 2000 office note, Dr. Evans noted "[m]ost of the problem comes during the day while she is working. . . .  [S]he has to use the hands and wrists a big deal at work and it is mostly during this time and
shortly afterwards that it bothers her."  When Dr. Evans saw claimant again on April 24, 2000, for "worsening pain," he noted she was a cafeteria worker and said, "I know that the repetitive nature of the work that she does, and has for years, is being the deciding factor in these bilateral carpal tunnel syndromes."  Claimant testified that she told Dr. Bhatti about the "repetitive lifting, rotating, bending[,] use of [her] wrist" and "pulling" she engaged in at work and that, sometime in the year 2000, Dr. Bhatti told her that her CTS "was caused by the work, by the lifting and the tugging all day long seven hours a day," "[p]ulling all those years."  Dr. Bhatti's office notes do not reflect this opinion or the communication of such an opinion to claimant.  However, Dr. Bhatti opined in a November 22, 2000 letter to employer's counsel that "[claimant's] [CTS] is most probably secondary to [the] cumulative effect of several years duration involving repetitive lifting, rotating, bending, and use of wrists, regardless of weight, which may be caused by work done as is required by a cook."  He also noted that "frequent breaks between [claimant's] cooking chores were observed [to] alleviate[] [her] symptoms."
    The Workers' Compensation Act (the Act) provides that carpal tunnel syndrome is an "ordinary disease[] of life as defined in [Code] Sec. 65.2-401."  Code Sec. 65.2-400(C).  For an ordinary disease of life to be compensable under Code Sec. 65.2-401, a claimant must prove by "clear and convincing evidence, (not a mere probability)," that the disease (1) "arose out of and in the course of [her] employment as provided in Code Sec. 65.2-400 . . ."; (2) "did not result from causes outside of the employment"; and (3) "follows as an incident of occupational disease . . . [;] is an infectious or contagious disease contracted in the course of [specified types of employment]; or . . . is characteristic of the employment and was caused by conditions peculiar to such employment."  Code Sec. 65.2-401.  Code Sec. 65.2-400(B) provides that a disease arises out of the employment "if there is[, inter alia,] . . . [a] direct causal connection between the conditions under which work is performed and the occupational disease; . . . [and] [i]t can be fairly traced to the employment as the proximate cause . . . ."  
Evidence is clear and convincing when it produces in the fact finder "'a firm belief or conviction as to the allegations sought to be established.  It is . . . 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.'"  Fred C. Walker Agency v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954)).
    A finding of causation need not be based exclusively on medical evidence.  Dollar Gen'l Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).  "The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive."  Id. "To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis.  True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury [or disease] . . . without analyzing in medical terms what the injury or disease is.  But this is not invariably so.  In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent." Id. at 177, 468 S.E.2d at 154-55 (quoting 2B Arthur Larson, The Law of Workmen's Compensation Sec. 79.51(a) (1995) (citations omitted)).  Similarly, where the diagnosis is clear but the medical evidence does not provide a sufficient causal link between the ailment and the employment, the commission may rely on the testimony of the claimant to establish this link.  Id.
    Claimant produced clear and convincing evidence that her CTS (1) arose out of and in the course of her employment, (2) did not result from causes outside her employment, (3) was characteristic of her employment and (4) was caused by conditions peculiar to such employment.  As the commission noted, the medical evidence did not conflict and uniformly connected claimant's condition with her employment.  As the deputy commissioner and commission found, claimant's duties included "cooking, stocking, washing, mopping, shoveling coal, mowing grass, using a weed eater and managing the furnace."  These duties required claimant "to use her hands and wrists a [great] deal," and claimant reported that "it is mostly during this time and shortly afterwards that [her wrists and hands] bother[] her."  The evidence also indicated that "frequent breaks between [claimant's] cooking chores . . . alleviate[d] [her] symptoms."  Credible evidence established that Dr. Evans and Dr. Bhatti were aware of claimant's job duties and the effect these duties had on her symptoms.  Based on this knowledge, Dr. Evans opined that "the repetitive nature of the work that [claimant] does, and has [done] for years, is being the deciding factor in these bilateral carpal tunnel syndromes."  As we previously have held, the requirement that a claimant establish the source of the disease means she must point "not to a single source [of the disease], to the complete exclusion of all other sources, but to the primary source . . . ."  Ross Labs. v. Barbour, 13 Va. App. 373, 377, 412 S.E.2d 205, 208 (1991); see Marcus, 15 Va. App. at 551, 425 S.E.2d at 530.  Dr. Evans' opinion that the repetitive nature of claimant's work was "the deciding factor" in her development of CTS was accepted by the commission and, considered together with claimant's testimony and the other evidence in the record, constitutes credible evidence that claimant's work was "the primary source" of her CTS.
    Dr. Bhatti's opinion further supports the commission's finding of causation.  Dr. Bhatti did not render his opinion based on "a mere probability," a standard rejected by the language of Code Sec. 65.2-401.  Rather, Dr. Bhatti opined that claimant's CTS "is most probably secondary to [the] cumulative effect of several years duration involving repetitive lifting, rotating, bending, and use of wrists."  He acknowledged the knots on claimant's arms but opined that they "most probably ha[d] no direct bearing on her [CTS] symptoms" unless shown to have infiltrated the carpal tunnel region.  Something that is merely "probable" has "more evidence for [it] than against [it]."  Black's Law Dictionary 1081 (5th ed. 1979).  Thus, probability may be equated with proof by a preponderance, see Slaughter v. Valleydale Packers, Inc., 198 Va. 339, 345-46, 94 S.E.2d 260, 266 (1956), an evidentiary standard lower than the clear and convincing evidentiary standard required by Code Sec. 65.2-401, see Lucas, 215 Va. at 540, 211 S.E.2d at 92.  However, Dr. Bhatti's addition of the word "most" to his opinion changed its meaning considerably.  The adverb "most" means "[i]n or to the highest degree" and is "[u]sed with many adjectives and adverbs to form the superlative degree [as in] most honest [or] most impatiently."  The American Heritage Dictionary of the English Language 1178 (3d ed. 1992).  Thus, the commission could reasonably conclude that  Dr. Bhatti, by combining the adverbs "most" and "probably," expressed his opinion regarding the cause of claimant's CTS as "a firm belief or conviction," the standard required to prove a proposition by clear and convincing evidence.  See Lucas, 215 Va. at 540, 211 S.E.2d at 92 (quoting Cross, 120 N.E.2d at 123).  Further, in light of the record as a whole, Dr. Bhatti's statement that the repetitive motion and resulting CTS he described "may be caused by work done as is required by a cook" was not an equivocation and, therefore, did not diminish the weight the commission could give to Dr. Bhatti's opinion.  As the commission noted, the record reflected claimant's testimony, which it found credible, that claimant's job did, in fact, require such activities.  Claimant also testified that she had informed Dr. Bhatti, in response to his inquiries, about the repetitive nature of her job duties.   Thus, the record as a whole, including claimant's testimony and the opinions of  Drs. Evans and Bhatti, contained credible evidence to support the commission's finding, by clear and convincing evidence, that claimant's CTS arose out of and in the course of her work for employer. 
    Finally, the record supports the commission's conclusion that claimant met her burden of proving her CTS did not result from causes outside of the employment.  The medical evidence outlined above provided clear and convincing evidence that claimant's CTS resulted from repetitive motion rather than from the nodules on claimant's arms or from any other medical condition, and claimant testified that she engaged in no hobbies or other activities outside her work which involved this type of motion.  Although statements from claimant's doctors that her CTS did not result from any causes outside of the employment may have strengthened claimant's case, such statements were not critical to the commission's determination in light of claimant's own testimony.  See Cridlin, 22 Va. App. at 176-77, 468 S.E.2d at 154-55; see also Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988) (where physician could not state "'to a reasonable medical certainty' that [claimant's] hearing loss was not caused by non-employment factors" but said "[claimant] did not give me a history of anything [outside of work] I might interpret as having caused it," the commission "could and did draw the reasonable inference that [claimant's] hearing loss was not caused by non-employment factors based on his negative history of noise exposure which would cause such a hearing loss and the nonexistence of genetic
or biological factors").  For these reasons, we hold the record as a whole contains credible evidence to support the commission's conclusion that claimant proved the necessary causal connection between her CTS and her employment and that she did so by clear and convincing evidence.  Therefore, the commission's award is affirmed.

The commission did not err when it found claimant's claim did not meet the requirements of Code Sec. 65.2-406 because he filed the claim more than two years after he received a diagnosis of an occupational disease.  Claimant began working for the York County Fire and Rescue Department in 1973.  Claimant remained employed with the Fire and Rescue Department until 1999.  He filed a claim for benefits on October 21, 1999, alleging he had contracted an occupational disease, hypertension.
    In a 1995 examination claimant had a blood pressure reading of 190/100.  He was diagnosed with "hypertension, stage II."  Dr. Hollingsworth placed claimant on hypertension medicine, indicating he would discuss treadmill tests with the fire chief "before this patient can be cleared for the Fire Department."  On January 23, 1996, Dr. Bryant examined claimant. Dr. Bryant confirmed Dr. Hollingsworth's diagnosis of "hypertension" and again prescribed hypertension medication.  Claimant's blood pressure was 221/110.  On January 25, 1996 Dr. Bryant recommended the same hypertension medication, but at an increased dosage, and advised claimant "he would not be able to work if the [blood pressure] was not well controlled."  Dr. Bryant listed claimant's primary problem as "severe hypertension with poor compliance."  Claimant received follow up treatments for hypertension and related illnesses with Dr. Bryant on February 2, 1996, February 8, 1996, March 5, 1996, May 29, 1996, and February 25, 1997.  On January 13, 1998 the doctor diagnosed severe hypertension.  Dr. Bryant also had a "[l]engthy discussion with [claimant] on the importance of compliance with [medications], diet and exercise."
    Claimant testified that prior to his January 13, 1998 appointment with Dr. Bryant, he never received a diagnosis or information from any source, including Dr. Bryant, that he was suffering from hypertension.  Claimant testified he did not understand he was suffering from hypertension until January 1998, when Dr. Bryant allegedly told him that his hypertension was caused by his work at the fire department and that claimant needed to retire. Claimant had been president of his local union.  He worked with the International Association of Firefighters and the Virginia Professional Firefighters developing legislation on presumptive occupational disease claims.  Claimant testified he was aware, prior to January 1998, that he was afforded special workers' compensation coverage for the disease of hypertension. Claimant acknowledged he had known for at least fifteen years that hypertension "is a condition that's covered under the presumption under Workers' [Compensation Act] that you as a firefighter would be entitled to." Claimant testified that if a doctor had diagnosed him with hypertension prior to January 1998, he would have filed his claim earlier.
    Code Sec. 65.2-406(A) states, in part:
The right to compensation under this chapter shall be forever barred unless a claim is filed with the commission within one of the following time periods:
*      *      *      *      *      *      *
5.  For all other occupational diseases [including hypertension], two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.
    This filing requirement is jurisdictional.  Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 401, 374 S.E.2d 695, 696 (1988); Musick v. Codell Constr. Co., 4 Va. App. 471, 473, 358 S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co., 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)).  "Moreover, the burden is upon the claimant to prove compliance with the statute."  Hawks, 7 Va. App. at 401, 374 S.E.2d at 697.
    "Whether a diagnosis of an occupational disease was communicated and when the communication occurred are factual determinations to be made by the commission upon the evidence.  Upon appellate review, the findings of fact made by the commission will be upheld when supported by credible evidence."  Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484 S.E.2d 140, 144 (1997) (citations omitted), aff'd on other grounds, 255 Va. 254, 497 S.E.2d 464 (1998).  See also A. G. Van Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198, 203 (1988).
    Credible evidence supports the commission's finding that claimant was diagnosed with hypertension as early as 1995.  See Dan River, Inc. v. Giggetts, 34 Va. App. 297, 302, 541 S.E.2d 294, 296 (2001). Claimant's own testimony proved he knew "hypertension was high blood pressure."  Even if he did not, "a physician is not required to utilize precise medical terminology to communicate the existence of occupational disease in order to trigger the obligation to file a claim."  Hawks, 7 Va. App. at 403, 374 S.E.2d at 697 (finding an employee received communication of the occupational disease interstital fibrosis when a doctor informed the employee that he had "scarring" of the lungs).  Claimant's medical records indicate Dr. Bryant repeatedly diagnosed hypertension, prescribing medications and behavioral changes to bring the condition under control.
    Code Sec. 65.2-406(A)(5) requires communication of two distinct facts:  (1) a diagnosis of the disease; and (2) the disease is an "occupational disease."  Code Sec. 65.2-400 defines an "occupational disease" as "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."
    A diagnosis of an occupational disease is not completely communicated to an employee until he receives information indicating the disease is "one 'arising out of and in the course of the employment.'"  Garrison v. Prince William County Bd. of Supervisors, 220 Va. 913, 917, 265 S.E.2d 687, 689 (1980) (citing Code Sec. 65.1-46, a previous version of Code Sec. 65.2-400)  (holding the statute of limitations did not bar a claim filed in 1978, where the employee was told he had hypertension in 1975, but he was not told hypertension arose out of and in the course of his employment).  The determinative issue here, therefore, is whether the diagnosis of hypertension  as an "occupational disease" was communicated to claimant prior to October 21, 1997, two years before the filing of his claim.
    No physician communicated to claimant that a nexus existed between his hypertension and his job prior to the appointment with Dr. Bryant in January 1998.   However, this fact does not end our inquiry.  It must be determined when claimant was informed that hypertension is an occupational disease.
    Communication of an occupational disease need not come from a medical doctor.  In Ratliff v. Dominion Coal Co., 3 Va. App. 175, 179, 349 S.E.2d 147, 149 (1986), the Court held a letter from the United States Department of Labor, informing a miner that he was disabled under the Black Lung Benefits Act, constituted "a medical determination of total disability due to pneumoconiosis" and triggered the running of the Virginia statute of limitations for workers' compensation benefits.  The Court rejected Ratliff's argument "that the Department of Labor letter was an administrative or legal determination, but not a 'medical determination.'"  Id.  The Court further explained that Ratliff knew or should have known after receiving the letter that, although the letter referred to federal standards, "it was,
nevertheless, incumbent upon Ratliff to file a Virginia claim" of disability due to pneumoconiosis within three years of receiving the letter.   Id. at 180, 349 S.E.2d at 149-50.
    Alexandria v. Cronin, 20 Va. App. 503, 458 S.E.2d 314 (1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996)  is dispositive of this case.  In Cronin, Cronin received a formal diagnosis of coronary heart disease in October 1989 and soon thereafter filed with the city for service-connected disability retirement from his job as a firefighter.  Id. at 505, 458 S.E.2d at 315.  Cronin died on February 22, 1992, and his estate filed a claim for benefits with the commission.  Id. at 506, 458 S.E.2d at 315.  The commission concluded Cronin's estate was not barred by the limitation period because Cronin was "not 'medically advised that his condition was causally related to his work.'"  Id. at 507, 458 S.E.2d at 316 (citing the commission's decision).
    In overturning the commission, the Court held:  By interpreting the statute as requiring proof of a communication by a physician of the employee's occupational disease, the commission ignores the fact that, while many employees may receive a diagnosis of his or her disease from a physician, the claimants may receive the communication that such a disease is a compensable occupational disease from someone other than a physician, often an attorney or someone in charge of personnel or administering benefits.  The commission's ruling overlooks practical experience under the Act and the fact that the compensability of an occupational disease is a creation of the legislature.  A physician's diagnosis of an employee's
condition is not dispositive on the issue of compensability and physicians often reach
different conclusions about a condition's origin.
*      *      *      *      *      *      *
Neither the Court of Appeals nor the Supreme Court of Virginia has interpreted Code Sec. 65.2-406(A)(5) as requiring a communication from a physician to trigger the running of the limitations period.  Code Sec. 65.2-406(A)(5) does not require that an employee receive from a physician a communication that his disease requires that the employee, simultaneously with or sometime after the diagnosis of his condition, learn that the condition is an occupational disease for which compensation may be awarded.  See Ratliff v. Dominion Coal Co., 3 Va. App. 175, 349 S.E.2d 147 (1986). Id. at 508-09, 458 S.E.2d at 316-17.  The Court concluded, "Cronin received a medical diagnosis of his heart condition and acted upon such diagnosis to receive service-connected disability benefits.  This action proved that Cronin was informed for purposes of the statute."  Id. at 510, 458 S.E.2d at 317.
    As in Cronin, claimant here was not informed by a doctor that his hypertension was work-related.   However, claimant had known for ten to fifteen years that hypertension is an occupational disease which is presumptively compensable under Code Sec. 65.2-402(B).  He had lobbied for legislation to enact that presumption.  He was aware, prior to his diagnosis, that his work as a firefighter afforded him special workers' compensation coverage for hypertension.  Most significantly, claimant testified that if a doctor had diagnosed him with hypertension prior to January 1998, he would have filed his claim earlier, suggesting he knew such a diagnosis was an occupational disease.  This testimony also belies claimant's contention that he only had a "general knowledge" of the compensability of hypertension.  Overall, claimant's testimony actually underscored the fact that he did know hypertension was a presumptively compensable occupational disease.
    As in Cronin, claimant "receive[d] the communication that such a disease is a compensable occupational disease from someone other than a physician."  20 Va. App. at 508, 458 S.E.2d at 316.  He had this knowledge when the diagnosis was communicated to him, as he had known hypertension was an occupational disease for at least fifteen years prior to the diagnosis. 
    The evidence supports the commission's findings that a diagnosis of an occupational disease was communicated to claimant as of January 1995.  Therefore, his October 1999 filing falls far outside the two-year statute of limitations set forth in Code Sec. 65.2-406(A)(5).  The source of the communication of occupational disease is immaterial as long as claimant learned "that the condition is an occupational disease for which compensation may be awarded."  Id. at 509, 458 S.E.2d at 317.  Kenneth R. Owens v. York Co. Fire & Rescue, Record No. 1898-01-4 (May 28, 2002). WP Version.

Lee Co. School Board v. Kitty Sue Miller,  Record No. 2610-01-3 (May 14, 2002).  WP  Version.

    The commission properly awarded compensation for permanent partial loss for Stage I asbestosis based on claimant's AWW at the time of his exposure.  Code Sec. 65.2-503(B)(17)(a).  Benefits for the losses listed in Code Sec. 65.2-503 have been described as payment for "loss of what might be termed 'human capital.'"  Morris v. Virginia Retirement Sys., 28 Va. App. 799, 806, 508 S.E.2d 925, 929 (1999).  Such benefits are not related to income earned.  While the commission awarded these benefits, it ruled the average weekly wages would be calculated at the wages the worker last earned prior to his retirement from DuPont twenty-six years before.  The worker argues he is entitled to an enhanced average weekly wage, based on the date the disease was communicated to him, as provided in Code Sec. 65.2-406(C).  The commission relied on Chesapeake & Potomac Telephone Co. v. Williams, 10 Va. App. 516, 392 S.E.2d 846 (1990), in ruling that the earlier wage applied. The legislature intended that the average weekly wage award be based upon the wages received from the employment where the employee was exposed to the element which caused the occupational disease for which claim is made. 
    The commission also properly declined to award temporary total and permanent partial benefits because claimant had not earned any wages in the 52 weeks prior to the date of communication of his disease to him. Claimant suffered no economic loss.  Newton v. Fairfax Police Dep't, 259 Va. 801, 529 S.E.2d 794 (2000); Arlington County Fire Dep't v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124 (1996).  Lena Robertson v. E.I. DuPont de Nemours,  Record No. 3431-01-2 (August 27, 2002). WP Version.

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