Jones v. E.I. DuPont de Nemours & Co., 1356-96-2

• Decision Date: 21 January 1997
• Docket Number: No. 1356-96-2,1356-96-2
• Citation: 24 Va.App. 36,480 S.E.2d 129
• Court: Virginia Court of Appeals
• Parties: James T. JONES v. E.I. DuPONT DE NEMOURS & COMPANY. Record

Page 129

480 S.E.2d 129

24 Va.App. 36

James T. JONES v. E.I. DuPONT DE NEMOURS & COMPANY.

Record No. 1356-96-2.

Court of Appeals of Virginia,

Richmond.

Jan. 21, 1997.

Kevin W. Ryan (Gary W. Kendall; Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), Charlottesville, for appellant.

Bruin S. Richardson, III (Wood W. Lay; Hunton & Williams, on brief), Richmond, for appellee.

Present: BENTON, ANNUNZIATA and OVERTON, JJ.

OVERTON, Judge.

James T. Jones appeals the Workers' Compensation Commission's decision denying him medical benefits. For the reasons stated, we reverse.

Jones filed a claim for an occupational disease contracted as a result of his exposure to asbestos in the course of his employment with E.I. DuPont de Nemours & Company (employer). After a hearing, the deputy commissioner denied his claim for a permanent scheduled loss under Code § 65.2-503(B)(17):

In terms of asbestos caused pleural plaque and diaphragmatic plaque, none of the physicians have provided an analysis sufficient to conclude, with any degree of probability or likelihood, the extent of this condition or its medical characterization. Without such an analysis, it would be mere speculation to draw a conclusion regarding the claimant's pleural condition and whether or not it amounts to a stageable level of asbestosis.

Although the deputy commissioner found that Jones' condition had not yet reached a ratable stage of asbestosis, he did award Jones lifetime medical benefits for Jones' occupational disease.

The employer appealed, and the full commission reversed the deputy commissioner's award. The full commission ruled that because the asbestosis had not reached a ratable level under Code § 65.2-503, it had therefore not yet reached a compensable level. Accordingly, the commission ruled that medical benefits could not be awarded for a non-compensable disease.

We find that the commission's interpretation of the Workers' Compensation Act is too narrow. The deputy commissioner made a factual finding, with which the commission concurred, that the presence of disease was established, evidenced by asbestos fibers, scarring, and pleural thickening. The employer and the commission cite Mayo v. E.I. DuPont de Nemours & Co., 70 O.I.C. 181 (1991), for the proposition that undisputed asbestosis that has not reached a ratable level under Code § 65.2-503 (formerly Code § 65.1-56) is not a compensable occupational disease and renders the claimant ineligible for any benefits under the Act. We disagree. Simply because the disease fails to rise to the level of a permanent loss on the schedule of Code § 65.2-503 does not automatically preclude an award of medical benefits. To the extent that Mayo conflicts with our own reading of the Act, Mayo does not accurately state the law.

Code § 65.2-403 allows an award of medical benefits to employees who have an occupational disease covered by the Act. ¹ If Jones' condition constitutes an occupational disease, he is entitled to those benefits.

The Act defines an occupational disease as follows:

A. As used in this title, unless the context clearly indicates otherwise, the term "occupational disease" means a disease arising out of and in the course of employment, but not an ordinary...