The opinion
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Elder and Annunziata
Argued at Richmond, Virginia
A NEW LEAF, INC.
and
ERIE INSURANCE EXCHANGE
OPINION BY
v. Record No. 0360-97-2 JUDGE LARRY G. ELDER
FEBRUARY 3, 1998
ELAINE R. WEBB
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Linda D. Frith; Gentry,
Locke, Rakes & Moore, on briefs), for
appellants.
Elaine R. Webb, pro se.
A New Leaf, Inc. and Erie Insurance Exchange (collectively
"appellant") appeal a decision of the Workers' Compensation
Commission ("commission") awarding medical benefits to Elaine R.
Webb ("claimant"). Appellant contends the commission erred when
it concluded that the allergic contact dermatitis afflicting
claimant was a compensable "disease" under the Workers'
Compensation Act ("Act"). For the reasons that follow, we
affirm.
I.
FACTS
Claimant has been employed by appellant as a floral designer
since October, 1993. Her duties include designing and
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
constructing floral arrangements and "processing" flowers that
are delivered to appellant's store. Processing flowers entails
removing excess foliage from the flowers, cutting their stems,
and placing them in water. Two of the flowers with which
claimant works are alstroemeria and tulips. In March, 1995,
claimant noticed blisters and a "splotchy area" on her right
index finger and palm. Claimant unsuccessfully attempted to
treat this condition herself, and the irritation spread up her
arms to her elbows.
On August 30, 1995, Dr. John Carpenter, claimant's family
physician, examined claimant and concluded that she suffered from
"dermatitis." However, Dr. Carpenter was uncertain whether
claimant's dermatitis was "fungal or a contact type . . . or a
combination." Beginning in November, 1995, claimant was treated
by Dr. Anna Magee, a dermatologist. Claimant underwent "patch
tests" that revealed she was allergic to both alstroemeria and
tulips. Dr. Magee diagnosed claimant with "allergic contact
dermatitis to tulips and alstro[e]meria." Dr. Magee later opined
that claimant's allergic contact dermatitis was caused by her
exposure to alstroemeria and tulips at work. She stated that
allergic contact dermatitis is "a very common problem with
florists." She opined that claimant's allergic contact
dermatitis "was most likely caused by at least two and probably
more physical contacts with the chemicals contained in
alstro[e]meria and tulips during her employment."
2
The record contains three articles describing the incidence,
causation, and course of allergic contact dermatitis in florists.
See Cindy Hoogasian, Dermatitis Concerns Spark Industry Study,
Florist, Jan. 1988, at 95 ("Hoogasian I"); Cindy Hoogasian,
Dermatitis Concerns Continue, Florist, March 1990, at 75
("Hoogasian II"); Robert M. Adams, M.D. et al., Alstroemeria:
The Cause of a New and Potent Allergen for Florists (manuscript
of article eventually published in Dermatology Clinics, Jan.
1990). These articles state that allergens contained in plants
have long been recognized as a source of dermatitis and that the
condition became particularly prevalent among florists in the
1980s. See Adams, supra, at 1; Hoogasian I, supra, at 95-96,
Hoogasian II, supra, at 75. Allergic contact dermatitis "is a
skin irritation caused by contact with an allergen." Hoogasian
I, supra, at 96. The condition "involves a reaction of the
body's immune system to the substance to which that person is
sensitive . . . ." Hoogasian II, supra, at 77. Alstroemeria,
tulips and other flowers contain chemicals that "cause allergic
skin reactions in some people with skin sensitivities."
Hoogasian I, supra, at 96, 99; see also Hoogasian II, supra, at
76, 77, Adams, supra, at 1, 4. Increased exposure to these
allergens "sensitize[s] some people to the extent that an
allergic reaction takes place upon contact with the chemical."
Hoogasian I, supra, at 96. However, one article states that
"[t]here is little or no fear" the public will develop allergic
3
sensitivity to the allergen in alstroemeria because "their actual
involvement with the flower is limited." Hoogasian I, supra, at
98. According to Dr. Alan Moshell, an occupational dermatologist
in Washington, D.C., the general public has little chance of
becoming sensitized to floral allergens and that "[o]nly in cases
where there is constant contact with the juice of the
alstroemeria, such as a designer or a sales employee would have,
is there cause for concern." Id. at 98, 96. Once an individual
develops an allergy to the chemicals in a particular flower, it
is generally "a lifelong sensitivity." Hoogasian II, supra, at
76, 77.
Claimant filed a claim for benefits contending that her
allergic contact dermatitis was a compensable occupational
disease. Appellant defended against the claim on the sole ground
that allergic contact dermatitis is not a compensable disease
under the Act. Following a hearing, a deputy commissioner
concluded that claimant's allergic contact dermatitis was a
compensable occupational disease under Code § 65.2-400 and
awarded benefits to claimant.
Appellant appealed, and the commission affirmed. Quoting
The Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795,
802 (1996), the commission stated that "job-related impairments
resulting from cumulative trauma caused by repetitive motion,
however labeled or however defined, are, as a matter of law, not
compensable under the present provisions of the Act." The
4
commission then found that "[t]he evidence does not establish
that cumulative traumatic insults resulting from repetitive
motion caused the claimant's condition." The commission also
found that allergic contact dermatitis is caused by "exposure
over time to a particular causative agent resulting in an adverse
reaction in the form of contact dermatitis." The commission
reasoned that claimant's allergic contact dermatitis was not
barred from compensation under Jemmott because it did not result
from a cumulative trauma caused by repetitive motion. The
commission concluded that allergic contact dermatitis was a
compensable occupational disease.
II.
"FLORIST'S ALLERGIC CONTACT DERMATITIS"
AS A COMPENSABLE DISEASE UNDER THE ACT
Appellant contends the commission erred as a matter of law
when it concluded that claimant's allergic contact dermatitis was
a compensable disease. It argues that allergic contact
dermatitis is a "cumulative trauma" condition and cannot be
compensated under the Act. We disagree.
Although a condition caused by "cumulative trauma" cannot be
a "disease" under the Act as that term has been construed by our
Supreme Court, see Jemmott, 251 Va. at 199, 467 S.E.2d at 802;
Merillat Indus., Inc. v. Parks, 246 Va. 429, 433, 436 S.E.2d 600,
602 (1993) (citing Morris v. Morris, 238 Va. 578, 586, 385 S.E.2d
858, 863 (1989)); see also Allied Fibers v. Rhodes, 23 Va. App.
101, 104, 474 S.E.2d 829, 830 (1996), the record in this case
5
established that claimant's allergic contact dermatitis, although
incurred over time, was not caused by the process of "trauma."
Thus, we first hold that allergic contact dermatitis is not
excluded per se from coverage as a disease under the Act.
Turning to the legal aspect of the mixed question presented by
this case, we hold as a matter of law that "florist's allergic
contact dermatitis" qualifies as a disease under the Act.
A.
This case compels us to revisit an issue of some uncertainty
in Virginia Workers' Compensation jurisprudence: the General
Assembly's intended meaning of the word "disease" in the Act. As
has often been stated, the Act currently provides coverage for
impairments arising out of and in the course of employment that
fall into one of two categories: (1) "injury by accident" or (2)
"occupational disease." Code § 65.2-101; see Jemmott, 251 Va. at
192-93, 467 S.E.2d at 798-99; Merillat, 246 Va. at 431, 436
S.E.2d at 600-01; Holly Farms/Federal Co. v. Yancey, 228 Va. 337,
340, 321 S.E.2d 298, 299 (1984). Although used repeatedly in the
text of the Act, the word "disease" was not defined by the
General Assembly.
The Supreme Court has set forth some basic parameters for
determining whether a particular impairment or condition was
intended by the General Assembly to be compensated as a "disease"
under the Act. First, the Court has stated that when the General
Assembly added "occupational diseases" to those impairments
6
covered by the Act in 1944, it intended this coverage to be
"carefully limited." Morris, 238 Va. at 584, 385 S.E.2d at 862.
In addition, in order for a condition to be compensable as an
occupational disease, it "must first qualify as a disease."
Merillat, 246 Va. at 432, 436 S.E.2d at 601. As such, whether an
impairment or condition is a compensable "disease" is a mixed
question of law and fact that is reviewable on appeal. See
Jemmott, 251 Va. at 192, 467 S.E.2d at 798. The "factual part"
of the mixed question includes both the nature and causation of a
claimant's ailment. See id. The "legal part" of the mixed
question involves deciding "whether these impairments . . .
constitute diseases within the contemplation of the Act." Id.
(also stating that "the crucial inquiry is whether the Commission
correctly applied the law to the established facts"). Medical
evidence that a particular condition is considered a disease,
standing alone, is not dispositive of whether the condition is
covered under the Act as a disease. See id. at 198, 467 S.E.2d
at 801 (stating that "just because a doctor opines that a
particular impairment is a disease does not necessarily make it
so").
Regarding the substantive meaning of the word "disease"
under the Act, the Supreme Court has eschewed the approach of
setting forth a "bright line" definition of disease. Instead,
the Supreme Court has only defined disease in the negative,
stating what the term "disease" does not mean. According to the
7
Supreme Court, the General Assembly's intended meaning of
"disease" is not so broad as to "encompass any bodily ailment of
whatever origin," Yancey, 228 Va. at 340, 321 S.E.2d at 300, or
to "expand[] the limits of coverage to a point where the Workers'
Compensation scheme would amount to a general plan of health
insurance." Morris, 238 Va. at 584, 385 S.E.2d at 362. In
addition, the meaning of "disease" under the Act is not the same
as the definition of this term that appears in The Sloane-Dorland
Annotated Medical-Legal Dictionary. See Jemmott, 251 Va. at
197-98, 467 S.E.2d at 801-02. 1 Finally, the Court has held that
the "disease" category under the Act does not include either
"impairments resulting from cumulative trauma caused by
repetitive motion" or "gradually incurred traumatic injuries or
cumulative trauma conditions." Id. at 199, 467 S.E.2d at 802
(citing Merillat, 246 Va. at 433, 436 S.E.2d at 601-02, and
interpreting its holding in Morris); see also Rhodes, 23 Va. App.
1
This definition was adopted by this Court in Piedmont Mfg.
Co. v. East, 17 Va. App. 499, 438 S.E.2d 769 (1993), and applied
in several subsequent cases prior to Jemmott. Under this
definition, a disease included:
any deviation from or interruption of
the normal structure or function of any part,
organ, or system (or combination thereof) of
the body that is manifested by a
characteristic set of symptoms and signs
whose etiology, pathology, and prognosis may
be known or unknown.
Piedmont Mfg. Co., 17 Va. App. at 503, 438 S.E.2d at 772 (quoting
The Sloane-Dorland Annotated Medical-Legal Dictionary 209
(1987)).
8
at 104, 474 S.E.2d at 830 (stating that "[t]he Supreme Court's
holding [in Jemmott] . . . leaves no doubt that in Virginia
cumulative trauma conditions, regardless of whether they are
caused by repetitive motion, are not compensable under the Act").
A corollary of the Supreme Court's rejection of proposed
definitions of disease in Yancey and Jemmott is that whether a
particular ailment is a "disease" under the Act is determined on
a case-by-case basis.
9
B.
Turning to the facts of this case, we disagree with
appellant's contention that claimant's allergic contact
dermatitis is a "cumulative trauma" condition. The commission's
factual finding that claimant's allergic contact dermatitis did
not result from "cumulative trauma caused by repetitive motion"
is supported by credible evidence and is binding on appeal.
Furthermore, the evidence in the record established that allergic
contact dermatitis is not caused by the process of "trauma."
Therefore, we hold that claimant's allergic contact dermatitis is
not a "cumulative trauma" condition and is thus not barred per se
from qualifying as a compensable disease.
If supported by credible evidence in the record, the
commission's factual findings are binding on appeal. See Code
§ 65.2-706. Although whether a particular disease qualifies for
compensation under the Act is a question of law, whether a
particular ailment is caused by cumulative trauma or through some
other process is a question of fact. Cf. Ingersoll-Rand Co. v.
Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989) (stating
that "the actual determination of causation is a factual
finding").
Credible evidence supports the commission's factual finding
that claimant's allergic contact dermatitis was not caused by
"cumulative traumatic insults resulting from repetitive motion."
The record indicates that claimant's allergic contact dermatitis
10
was not causally linked to any repetitive motion that she
performed at work. Allergic contact dermatitis is caused by the
reaction of an individual's immune system with a substance, such
as chemicals contained in certain flowers, to which that
individual has developed a hypersensitivity. Hoogasian I, supra,
at 96; Hoogasian II, supra, at 76, 77; Adams, supra at 1, 4. It
is not caused by the wear and tear associated with a repetitive
motion. Although claimant's duties included designing and
constructing floral arrangements and "processing" flowers
delivered to appellant's store, no evidence linked the motions
associated with these activities to the outbreak of dermatitis on
claimant's hands and arms. Because credible evidence supports
this factual finding, it is binding on appeal.
Appellant's contention that claimant's allergic contact
dermatitis was a "cumulative trauma condition" is flawed and
based upon an incomplete reading of the record. Appellant argues
that claimant's allergic contact dermatitis was caused by
"cumulative traumatic exposure to chemicals in alstroemeria and
tulips." This understanding of the causation of claimant's
ailment is irreconcilable with the evidence in the record on this
issue. Claimant's allergic contact dermatitis was not caused by
the "traumatic" impact of floral chemicals upon her skin; it was
caused by the reaction of antibodies produced by claimant's
immune system with the chemical contained in the flowers that
eventually manifested itself in claimant's contact dermatitis.
11
The articles contained in the record state that allergic
contact dermatitis results when a person develops an allergic
sensitivity to a substance, which in claimant's case was a
chemical contained in alstroemeria and tulips. See Hoogasian I,
supra, at 96-97, 99; Hoogasian II, supra, at 76, 77; Adams, supra
at 4. 2 An allergic reaction is an "immunological reaction"
between an allergen and antibodies produced by an individual's
immune system that causes discomfort to the allergic individual. 3
6 Lawyers' Medical Cyclopedia § 45A.1 (James G. Zimmerly ed., 3d
ed. 1991); see 6 Ausman & Snyder's Medical Library (Lawyers
Edition) § 11:1 (1990); Hoogasian II, supra, at 77. The reaction
between allergen and antibody releases "pharmacologically active
substances [that] cause inflammation and produce symptoms." 6
Lawyers' Medical Cyclopedia § 45A.2. The substance or allergen
that causes the allergic reaction "usually does not produce a
skin reaction on normal skin on first exposure, but . . . may do
2
According to The Sloane-Dorland Annotated Medical-Legal
Dictionary, "contact dermatitis" is "due to allergic
sensitization to various substances that produce inflammatory
reactions in the skin of those who have acquired hypersensitivity
to the allergen as a result of previous exposure to it." The
Sloane-Dorland Annotated Medical-Legal Dictionary 162 (Supp.
1992).
3
The Sloane-Dorland Annotated Medical-Legal Dictionary
states that an "allergy" is "a hypersensitive state acquired
through exposure to a particular allergen, reexposure bringing to
light an altered capacity to react. . . . Allergies may be
classified as immediate and delayed, and include atopy, serum
sickness, allergic drug reactions, contact dermatitis, and
anaphylactic shock." The Sloane-Dorland Annotated Medical-Legal
Dictionary 19 (Supp. 1992) (emphasis added).
12
so on a subsequent exposure." Id. § 45A.1; see Hoogasian I,
supra, at 96-97; Hoogasian II, supra, at 77. Thus, claimant's
hypersensitivity to the floral chemical developed as antibodies
in her immune system began reacting abnormally with the allergen
contained in the flowers. This biochemical process through which
the sensitivity of claimant's immune system to floral allergens
was gradually heightened is not the result of "trauma" which is
typically associated with physical injury to the body. See The
Sloane-Dorland Annotated Medical-Legal Dictionary 745 (1987)
(defining "trauma" as "a wound or injury, whether physical or
psychic"). Because trauma does not play a part in the
development of an allergic sensitivity to a particular allergen,
claimant's allergic contact dermatitis was not a "cumulative
trauma" condition.
The absence of a traumatic process in the development of
claimant's allergic sensitivity to alstroemeria and tulips
distinguishes this case from Allied Fibers v. Rhodes, 23 Va. App.
101, 474 S.E.2d 829 (1996). In Rhodes, this Court held that
bilateral sensorineural hearing loss due to noise exposure did
not qualify as a disease because it was a cumulative trauma
condition. See Rhodes, 23 Va. App. at 105, 474 S.E.2d at 831.
The record in Rhodes established that hearing loss due to noise
exposure is caused by physical damage to the outer hair cells in
the cochlea that results in "their [in]ability to vibrate in
response to sound." Id. at 104, 474 S.E.2d at 830. The evidence
13
in that case also established that "[n]oise damage to
sensorineural hearing belongs under the general heading of
traumatic injury because it is strictly a physical force." Id.
(emphasis added). Unlike the ailment in Rhodes, the
hypersensitization of claimant's immune system to the allergens
in alstroemeria and tulips was not caused by the type of physical
force associated with "trauma."
Appellant also contends that this case is controlled by
United Airlines, Inc. v. Walter, 24 Va. App. 394, 482 S.E.2d 849
(1997). In Walter, this Court held that photosensitivity to
fluorescent lighting is an injury rather than a disease. See
Walter, 24 Va. App. at 396-97, 482 S.E.2d at 850-51. However,
the Walter opinion does not contain sufficient facts regarding
the causation of photosensitivity to be considered controlling
authority. The opinion contains no description of the process
through which an individual develops a sensitivity to fluorescent
light. The opinion merely states that the claimant was diagnosed
with photosensitivity that was "gradually incurred," and then
offers a dictionary definition of the ailment. See id. at 395,
396-97, 482 S.E.2d at 850, 850-51 (stating that The
Sloane-Dorland Annotated Medical-Legal Dictionary defines
photosensitivity as "an 'abnormal reactivity of the skin to
sunlight'"). Due to this dearth of information, we cannot
ascertain whether photosensitivity is caused by trauma or some
other process. Thus, we hold that Walter is unsuitable for
14
comparison to other ailments and that its holding is necessarily
limited to its facts.
C.
Having decided that claimant's allergic contact dermatitis
is not a "cumulative trauma" condition that is barred per se from
compensation under the Act, we next consider whether it is a
compensable disease as a matter of law. We hold that, based on
the policies underlying the Supreme Court's prior construction of
the term "disease," the purpose of the Act, and the nature of
claimant's aliment, the General Assembly intended its "carefully
limited" coverage of occupational diseases to include allergic
contact dermatitis caused by exposure to floral allergens in the
workplace.
A review of the Supreme Court's three major cases in this
area, Yancey, Merillat, and Jemmott, indicates that two primary
policy considerations underlie the Court's construction of the
term "disease." First, the Supreme Court has rejected "broad"
definitions of disease in order to maintain the coherence of the
current "injury-by-accident/occupational-disease" dichotomy in a
manner consistent with the principles of statutory construction.
See Monument Associates v. Arlington County Bd., 242 Va. 145,
149, 408 S.E.2d 889, 891 (1991) (stating that statutes "should be
interpreted, if possible, in a manner which gives meaning to
every word"); see also Jemmott, 251 Va. at 198, 467 S.E.2d at
801-02 (rejecting the Piedmont definition of "disease" because
15
"it . . . 'would make unnecessary and meaningless the two
categories specifically set forth in the Act'"); Merillat, 246
Va. at 433, 436 S.E.2d at 601-02 (stating that the Court has
rejected previous invitations to broaden the scope of the Act
based on its conclusion "that the categories of compensable
injuries created by the legislature--accidental injury and
occupational disease--are separate, meaningful categories");
Yancey, 228 Va. at 340, 321 S.E.2d at 300 (rejecting a broad
definition of disease because it would make "unnecessary and
meaningless" the "injury-by-accident/occupational-disease"
dichotomy). Second, the Supreme Court's decisions evince its
intent to prevent claimants from pretextually using the "disease"
category of impairments as a loophole to obtain benefits for
"cumulative trauma" conditions that are otherwise non-compensable
as "injuries by accident." See Jemmott, 251 Va. at 194-97, 199,
467 S.E.2d at 799-801, 802 (summarizing prior cases in which
claimants have sought to classify gradually-incurred injuries as
occupational diseases and stating that impairments resulting from
cumulative trauma caused by repetitive motion are not compensable
under the present provisions of the act "however labeled or
however defined" by claimants).
Neither of these policy concerns is implicated by concluding
that florist's 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
16
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 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," Yancey, 228 Va. at 341,
321 S.E.2d at 300, or threaten to convert the Act into "a general
plan of health insurance." Morris, 238 Va. at 584, 385 S.E.2d at
862.
Ironically, accepting appellant's contention that florist's
17
allergic contact dermatitis is not a disease would threaten the
integrity of the "injury-by-accident/occupational-disease"
distinction. Although the Supreme Court has repeatedly warned of
the dangers of a definition of disease that is too broad, the
hazards of a concept of disease that is too narrow are equally
apparent. As previously discussed, the record in this case
established that allergic contact dermatitis was not caused by a
process of "cumulative trauma" to claimant. Many ailments that
have been traditionally considered to be occupational diseases
manifest themselves over time. Unlike the coverage of injuries
under the Act, the General Assembly's "carefully limited"
coverage of diseases is not confined to "diseases by accident" as
currently written. Were we to hold that a non-trauma-related
condition such as allergic contact dermatitis does not qualify as
a disease under the Act, we would move one step closer to
creating an incomprehensible "slippery slope" under which all
gradually incurred ailments, regardless of whether they are
caused by trauma, fail to qualify as "diseases" under the Act.
Such an interpretation of "disease" finds no support in Yancey,
Merillat, or Jemmott and would render the "disease" category of
ailments a nullity.
A [concept] of either "injury" or "disease"
that is so [narrow] as to encompass [no]
bodily ailment of whatever origin is too
[narrow] because it would make unnecessary
and meaningless the two categories
specifically set forth in the Act.
Yancey, 228 Va. at 340, 321 S.E.2d at 300.
18
Likewise, narrowly holding that florist's allergic contact
dermatitis is a compensable disease does not open the floodgates
of compensation to claimants who might use sophistic arguments to
categorize conditions truly caused by cumulative trauma as
"diseases." Florist's allergic contact dermatitis is a
well-defined ailment that is caused by a distinctive,
non-traumatic process. It is thus distinguishable from
"cumulative trauma" conditions and, therefore, cannot be used to
expand the disease category to permit coverage for trauma-related
injuries that are excluded from compensation under the
"injury-by-accident" category.
Finally, we conclude that the General Assembly intended its
"carefully limited" coverage of occupational diseases to include
florist's allergic contact dermatitis. The General Assembly
enacted the Act for the purpose of compensating employees for
accidental injuries and certain diseases "within the hazards of
the employment." See Morris, 238 Va. at 584, 385 S.E.2d at
861-62. The General Assembly has defined the phrase
"occupational disease" to mean "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). Appellant does not contest and the record
conclusively proves that claimant's allergy to alstroemeria and
tulips arose out of and in the course of her employment. The
record also established that the development of an allergic
19
sensitivity to floral allergens is a hazard peculiar to
employment in the floral industry. Dr. Magee stated that
allergic contact dermatitis is "a very common problem with
florists." One article stated that "[t]here is little or no
fear" that the public will develop allergic sensitivity to the
allergen in alstroemeria because "their actual involvement with
the flower is limited." Hoogasian I, supra, at 98. According to
Dr. Moshell, an allergic sensitivity to alstroemeria is likely to
develop "[o]nly in cases where there is constant contact with the
juice of the alstroemeria, such as a designer or a sales employee
would have . . . ." Id. at 98.
Because covering florist's allergic contact dermatitis as a
disease under the Act is consistent with the General Assembly's
purpose and does not threaten to erode the
"injury-by-accident/occupational-disease" dichotomy or to create
a loophole that enables compensation of gradually-incurred
traumatic injuries, it is a compensable "disease" as a matter of
law.
For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
20
Fitzpatrick, C.J., dissenting.
I.
I respectfully dissent. Claimant began working as a florist
for New Leaf, Inc. in October, 1993. Her daily duties included
handling flowers, floral design and providing floral arrangements
for weddings. At least once a week, she processed flowers, which
included removing the flowers' foliage, cutting the flowers'
stems and placing them in water.
In March, 1995, claimant first noticed "blisters" and "a
splotchy area" on her right index finger and palm. On August 30,
1995, Dr. John Carpenter, claimant's family doctor, diagnosed
claimant's condition as dermatitis of unclear etiology. In
November, 1995, Dr. Anna Magee, a dermatologist, diagnosed the
condition as allergic contact dermatitis. Dr. Magee conducted a
"patch test," which demonstrated that claimant exhibited an
allergic reaction to alstroemeria and tulips. Dr. Magee
concluded that this was an occupational disease caused by
claimant's exposure on at "least two and probably more physical
contacts with the chemicals contained in alstro[e]meria and
tulips during her employment."
At a hearing before the deputy commissioner, claimant
testified that she was exposed to two types of flowers,
alstroemeria and tulips, that caused her condition.
Additionally, claimant testified that "[a] lot of times what has
happened to my hand doesn't happen on the first day or two. It's
21
after you have worked with it time after time." Employer did not
dispute claimant's exposure to these flowers or that claimant
contracted this condition from her employment. The deputy
commissioner entered an award in claimant's favor.
The full commission affirmed the award of medical benefits
and found claimant's contact dermatitis to be a compensable
occupational disease. The commission found that claimant had a
disease which was distinguishable from the impairments at issue
in the repetitive motion line of cases. See The Stenrich Group
v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996)
("job-related impairments resulting from cumulative trauma caused
by repetitive motion [are] not compensable"). The commission
found as follows:
In the case at bar, there is no evidence that
the claimant's condition resulted from
"cumulative trauma caused by repetitive
motion," rather, the evidence reveals
exposure over time to a particular causative
agent resulting in an adverse reaction in the
form of contact dermatitis. The evidence
demonstrates that it is the irritant
contained in the alstroemeria and the tulips
that effects the skin changes which manifest
as contact dermatitis. The evidence does not
establish that cumulative traumatic insults
resulting from repetitive motion have caused
the claimant's condition.
II.
Employer argues that claimant's allergic contact dermatitis
is not compensable under Code § 65.2-400, because it was caused
by cumulative exposure over an extended time to certain fresh
22
flowers at her employment. 4 I agree.
A claimant seeking benefits under the Act must prove either
"an injury by accident or an occupational disease 'arising out of
and in the course of the employment.'" Holly Farms Foods, Inc.
v. Carter, 15 Va. App. 29, 37, 422 S.E.2d 165, 169 (1992)
(quoting Code § 65.2-101). Noting that the definition of a
compensable "injury" or "disease" had created difficulties in
previous cases, the Virginia Supreme Court in The Stenrich Group
v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996), spoke
clearly in enunciating the rule regarding gradually incurred
impairments. The Court unequivocally stated that "job-related
impairments resulting from cumulative trauma caused by repetitive
motion, however labeled or however defined, are, as a matter of
law, not compensable under the present provisions of the Act."
Id. "We are bound by decisions of the Supreme Court of Virginia
and are without authority to overrule them." Roane v. Roane, 12
Va. App. 989, 993, 407 S.E.2d 698, 700 (1991).
In Allied Fibers v. Rhodes, 23 Va. App. 101, 474 S.E.2d 829
(1996), we held that a gradually incurred hearing loss was not
compensable as an occupational disease. We based this decision
on the Virginia Supreme Court's "'clear refusal to broaden the
scope of the Act to include job-related impairments arising from
repetitive motion or cumulative trauma.'" Id. at 104, 474 S.E.2d
4
Employer does not dispute that claimant's evidence
satisfies the requirements listed in Code § 65.2-400 regarding
causation.
23
at 830 (quoting Jemmott, 251 Va. at 199, 467 S.E.2d at 802)
(citations omitted). We found the holding in Jemmott "clear and
unequivocal, [leaving] no doubt that in Virginia cumulative
trauma conditions, regardless of whether they are caused by
repetitive motion, are not compensable under the Act." Rhodes,
23 Va. App. at 104, 474 S.E.2d at 830.
Similarly, in United Airlines v. Walter, 24 Va. App. 394,
396-97, 482 S.E.2d 849, 850 (1997), we held that the claimant's
"photosensitivity, resulting from cumulative exposure to
radiation by fluorescent lights, [was] a gradually incurred
injury and not an industrial disease within the meaning of the
Workers' Compensation Act." Therefore, under Rhodes and Jemmott,
it was not compensable.
"[T]he doctrine of stare decisis is more than a mere
cliche." Selected Risks Ins. Co v. Dean, 233 Va. 260, 265, 355
S.E.3d 579, 581 (1987) (citation omitted). "Under the rule of
stare decisis, a decision by a panel of this court is an
established precedent." Robinson v. Commonwealth, 13 Va. App.
540, 543, 413 S.E.2d 661, 662 (1992). We are not at liberty to
ignore our holdings in Rhodes and Walter.
In the instant case, the record demonstrates that claimant's
gradually incurred condition resulted from repeatedly touching
alstroemeria and tulips at work. The clear rule from Jemmott and
its progeny mandates reversal of the commission's award. 5 Thus,
5
The majority attempts to distinguish the instant case from
Walter by limiting Walter to its facts. However, the claimant in
24
claimant's impairment, "resulting from cumulative trauma . . .
however labeled or however defined, [is], as a matter of law, not
compensable under the present provisions of the Act." Jemmott,
251 Va. at 199, 467 S.E.2d at 802.
For the foregoing reasons, I would reverse.
Walter developed a skin condition, among other things, from
cumulative exposure to radiation. Here claimant developed a skin
condition from cumulative exposure to chemicals in certain
flowers. The absence in Walter of as detailed an account of the
physiology of immunological reactions as the majority provides
does not render Walter inapplicable to the facts before us.
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