Marcus v. Arlington County Bd. of Sup'rs

• Decision Date: 05 January 1993
• Docket Number: No. 0333-92-4,0333-92-4
• Citation: 15 Va.App. 544,425 S.E.2d 525
• Parties: Joanne MARCUS v. ARLINGTON COUNTY BOARD OF SUPERVISORS. Record
• Court: Virginia Court of Appeals

Page 525

425 S.E.2d 525

15 Va.App. 544

Joanne MARCUS v. ARLINGTON COUNTY BOARD OF SUPERVISORS.

Record No. 0333-92-4.

Court of Appeals of Virginia.

Jan. 5, 1993.

Bruce K. Billman, Woodbridge (Rice, Stallknecht & Billman, on brief), for appellant.

Richard R. Rhodes, Arlington, for appellee.

Present: KOONTZ, C.J., and BARROW and WILLIS, JJ.

KOONTZ, Chief Judge.

Joanne Marcus (Marcus), claimant, appeals from a decision of the Workers' Compensation Commission (commission) denying her application for compensation. The commission found that Marcus' condition, "traumatic stress reaction with physical manifestations," is a noncompensable ordinary disease of life under the Workers' Compensation Act (Act). Marcus challenges the commission's decision on the grounds that (1) the commission failed to address her entitlement under the occupational disease provision of the Act, and (2) no credible evidence supports the commission's finding that her condition was noncompensable. We affirm.

In 1980, Marcus began work as an Emergency Communication Technician (ECT) for Arlington County. Her duties as an ECT involved the dispatch of police, fire and ambulance units. Marcus was promoted to supervisor at the emergency communication center (center) in 1986. According to the job description, the responsibilities of the supervisor include the following: supervising ECT personnel; scheduling; counseling and supporting employees in coping with stress caused by work; making decisions for and providing information to ECTs, police, fire and other county, state and federal agencies and the public; and performing ECT tasks as needed. Moreover, the supervisor position involves substantial responsibility and requires the ability to make critical decisions promptly.

Upon her promotion to supervisor, Marcus spent approximately twenty percent of her time performing ECT duties. When the center later became underfunded and understaffed, Marcus assumed more ECT duties in addition to her supervisor work. In mid-1987, Marcus began to experience the onset of severe abdominal cramping, diarrhea, and constipation, and sought medical care from her family physician, Dr. Kaye. In the fall of 1987, Marcus took two weeks vacation; her symptoms abated after three days absence from her job. However, when Marcus returned to work following her vacation, she began experiencing the symptoms again. Typically, her symptoms would "lessen" on days she did not work, but would return on days when she worked. As the workload at the center increased, Marcus' symptoms also worsened and included chest pains and headaches.

Marcus also had "stressors" outside her employment at the center. On July 14, 1987, Dr. Kaye noted the onset of diarrhea after the death of Marcus' pets and similar symptoms upon the illness of her father. In 1988, he wrote: "[Marcus] has been under my care since 1982 for multiple medical problems including peptic ulcer disease and stress-related problems."

In early 1988, Marcus reported her physical symptoms to Cheryl Orr, an employee assistance officer for Arlington County. Orr referred Marcus to Dr. Shostak, a clinical psychologist. In his June 21, 1988 report, Dr. Shostak described Marcus as "an extremely likeable but highly stressed individual who is developing a number of physical and psychological work-related symptoms." He reported that Marcus' "intestinal cramping and ulcer flare-ups are intermittent and generally correlate with her work/stress levels." He indicated that Marcus has a personality and predisposition to perform her work in a "nonstop and perfectionist" manner and was struggling with worrisome agendas that challenged her ability to "keep pace." Thus, he expressed concern that Marcus would push herself too hard in an attempt to compensate for lower productivity and that she was at risk for developing exhaustion, depression, panic attacks and worsened gastrointestinal symptoms. Dr. Shostak stated that he did not explore in depth the effect of Marcus' father's health upon her. Dr. Kaye noted that Marcus' father's illness resulted in some of the same physical effects as those attributed by Dr. Shostak to work-related stress.

A letter of Dr. Paul Miller, dated April 8, 1988, reported the onset of symptoms in the summer of 1987. The symptoms were said to commence each morning when Marcus was scheduled to return to work. Dr. Miller diagnosed "functional diarrhea brought about by anxiety of returning to work each Monday."

An August 29, 1988 report of Dr. Kessler, a specialist in occupational medicine, indicated that Marcus' abdominal cramping and intestinal problems were concomitant with reductions in the workforce and increase in personal responsibilities. Dr. Kessler opined that the "severe irritable bowel syndrome is secondary to or at least exacerbated by her stressful work environment."

Light duty status was recommended and the employer furnished a clerical job without telephone responsibility at the center. However, Marcus worked at this assignment for only a short time with many absentee days before resigning on November 19, 1988. Following her resignation, Marcus worked as a cashier at a recreation center. She reported that this job, which involved answering the telephone, working on a slow computer, and dealing with the public, exacerbated her symptoms. Dr. Shostak opined that "Marcus will react with very definable physically [sic] symptoms ... anytime she's placed in a situation in which there really are urgent time demands placed on her and multiple responsibility of some consequence being posed upon her."

The deputy commissioner found that Marcus' condition was a compensable occupational disease. The full commission reversed, finding that the evidence established an ordinary disease of life, "traumatic stress reaction with physical manifestations," but that the statutory requirements for compensability had not been met.

"The Commission's findings of fact are binding on appeal where supported by credible evidence." Board of Supervisors v. Martin, 3 Va.App. 139, 146, 348 S.E.2d 540, 543 (1986). "If there is evidence or [a] reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed ... on appeal, even though there is evidence in the record to support contrary findings of fact." Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983).

The crux of Marcus' appeal concerns the proper application of the occupational disease and ordinary disease of life provisions of the Act. She contends that the commission failed to address her entitlement under the occupational disease provision. Further, she contends that no credible evidence supports the commission's decision that her condition is a noncompensable ordinary disease of life. To facilitate our discussion, we examine these provisions of the Act.

In order to establish a compensable condition, Marcus must prove that she has suffered an occupational disease. An occupational disease is "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." Code § 65.2-400(A) (formerly Code § 65.1-46). ¹ However, "an occupational disease that is not compensable under ... Code § 65.2-400 because of the possibility of substantial exposure outside of employment may still be compensable" under Code § 65.2-401 (formerly Code § 65.1-46.1), ² which identifies ordinary diseases of life that are treated as occupational diseases. Holly Farms Foods, Inc. v. Carter, --- Va.App. ----, ----, 422 S.E.2d 165, 169 (1992). Thus, an ordinary disease of life may be compensable as an occupational disease if the requirements of Code § 65.2-401 are satisfied.

We first consider Marcus' contention that the commission failed to address her entitlement under the occupational disease provision. In considering whether to proceed under Code § 65.2-400 or Code § 65.2-401, the commission must determine whether the condition is one to which the general public is exposed outside of the employment. If the evidence shows that the general public is not exposed to traumatic stress reaction outside of the employment, Code § 65.2-400 applies. If, however, traumatic stress reaction is a condition to which the general public is exposed outside of the employment, the condition must be reviewed under Code § 65.2-401.

From our review of the commission's decision, we find that the commission did address the question of whether Marcus' condition is an occupational disease. Based on the medical evidence, the commission found that traumatic stress reaction "is the same kind of reaction that occurs in a setting outside of the employment" and, therefore, is an ordinary disease of life. 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--such as "her volunteer activities with pets and other personal stressors,...