                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia


CAPITAL TRUCK CENTER
                                         MEMORANDUM OPINION * BY
v.         Record No. 0595-95-2           JUDGE LARRY G. ELDER
                                            JANUARY 23, 1996
CHARLES P. HIGHLANDER, SR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           William F. Karn (William B. Pierce, Jr.;
           Williams & Pierce, on briefs), for appellants.
           Laura L. Geller (Geoffrey R. McDonald;
           McDonald & Snesil, P.C. on brief), for
           appellee.



     Capital Truck Center (employer) appeals the Workers'

Compensation Commission's (commission) award of benefits to

Charles P. Highlander, Sr. (claimant) for disability due to the

occupational disease of "contact allergic dermatitis."    Employer

contends (1) sufficient evidence did not establish claimant

suffered from a new occupational disease, instead of an

aggravation of a pre-existing condition; and (2) the commission

erred in failing to find claimant voluntarily exposed himself to

work conditions which he was warned would lead to his condition

becoming symptomatic.   Because the commission committed no error,

we affirm its decision.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

                                 FACTS

        In 1979, the commission determined claimant had recurring

"contact dermatitis" as a result of his employment as a diesel

mechanic with a former employer.       Accordingly, the commission

awarded claimant temporary total disability benefits for two

separate periods during 1979.    As early as 1978, claimant's

treating physician, Dr. L. William Kelly, Jr., and other

physicians instructed claimant not to work in an environment that

would expose him to diesel fuel, chromates, brake fluid, or

antifreeze.
        Despite these instructions, claimant accepted a job as a

diesel engine mechanic with employer on approximately May 11,

1984.    From May 11, 1984 to August 1993, claimant experienced

occasional problems with dermatitis.      In August 1992, after he

attended a week long diesel fuel school, claimant's condition

worsened.    On August 11, 1993, claimant filed a claim alleging

the occupational disease "contact allergic dermatitis."

        Medical records reveal claimant received dermatological care

from Dr. Kelly for a period of twenty years.      In 1979, Dr. Kelly

diagnosed claimant as having "contact dermatitis hands & feet."

Again, in 1981, Dr. Kelly stated claimant suffered from "eczema

hands and feet [with] contact dermatitis."      By letter dated

August 11, 1993, Dr. Kelly provided the following diagnosis of

claimant's condition:




                                  -2-
     [Claimant] has been followed in this office since April
     of 1972. He has a long history of contact, irritant
     dermatitis involving his hands and feet. . . . In
     March, 1993, his skin eruption changed to contact
     allergic dermatitis with much more severe swelling and
     erythema and blister formation.


     In April 1993, Dr. William P. Jordan, Jr. also examined

claimant and concluded that while there were "suggestions that

this could be an allergic contact dermatitis," a diagnosis of

contact irritant dermatitis was appropriate.    Dr. Jordan noted

claimant's dermatitis entered a thirteen year remission before it

returned in August 1992.   In March 1994, Dr. James F. Robinson

examined claimant and stated that he believed claimant's

condition was "really the same problem that he has been having

since 1972."
     The deputy commissioner denied claimant's application for

benefits, after finding his condition was an aggravation of his

pre-existing disease and not a new occupational disease.       The

commission disagreed and awarded benefits, finding claimant

suffered from a new occupational disease.

                                  II.

                            NEW DISEASE

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).       The

commission's factual findings will be upheld on appeal if

supported by credible evidence.     James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)(citation



                                  -3-
omitted).    "[I]t is fundamental that a finding of fact made by

the [c]ommission is binding and conclusive upon this [C]ourt on

review.   A question raised by conflicting medical opinion is a

question of fact."     Commonwealth v. Powell, 2 Va. App. 712, 714,

347 S.E.2d 532, 533 (1986).    Finally, "[m]edical evidence is not

necessarily conclusive, but is subject to the commission's

consideration and weighing."     Hungerford Mechanical Corp. v.

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
     The record contains credible evidence that claimant

developed a new occupational disease in March 1993 and that he

did not suffer from an aggravation of his pre-existing dermatitis

condition.   Of greatest import to our analysis is Dr. Kelly's

August 11, 1993 letter, which specifically noted the onset of a

disease different from claimant's prior condition of contact

irritant dermatitis.    Dr. Kelly stated that beginning in March

1993, claimant's skin eruptions changed to contact allergic

dermatitis with much more severe swelling and erythema and

blister formation.    Claimant testified that his symptoms worsened

after the completion of diesel fuel school in August 1992, with

physical manifestations including larger blisters and the

appearance of puss.

     Although other examining physicians did not arrive at a

positive diagnosis of contact allergic dermatitis, where conflict

in medical opinions exists, the general rule is that greater

weight is accorded the treating physician's (Dr. Kelly) opinion



                                  -4-
when he is positive in his diagnosis.    Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572

(1986)(citations omitted).   Moreover, Dr. Robinson did not rule

out a diagnosis of contact allergic dermatitis.     Furthermore, Dr.

Jordan stated, "[t]here are irregular patches and suggestions

that this could be a contact allergic dermatitis."     The

commission considered all reports of the doctors.    We cannot say

the commission erred in relying on Dr. Kelly's positive medical

opinion that in March 1993 claimant contracted contact allergic
dermatitis.   Contact allergic is an occupational disease

different from irritant dermatitis.

                                III.

         WILFUL EXPOSURE TO HARMFUL WORKPLACE ENVIRONMENT

      First, we disagree with claimant that Rule 5A:18 bars

employer from raising this issue on appeal.   The record shows

that the issue was generally considered at the hearing; employer

raised it on brief before the commission; and Commissioner Tarr,

who dissented from the commission's opinion, directly addressed

it.

      Reaching the merits of the issue, the record reveals

claimant's physicians warned him that his dermatitis condition

would be exacerbated by exposure to diesel fuel, chromates, and

other such chemicals.   However, from 1979 through 1992, claimant

worked as a diesel mechanic relatively symptom free from contact

irritant dermatitis.    Furthermore, as discussed in Section II,



                                 -5-
claimant developed a different dermatitis condition as of March

1993.    While this new condition, contact allergic dermatitis,

closely resembled claimant's pre-existing condition, contact

irritant dermatitis, the commission, citing Attorney's Textbook

of Medicine ¶65A.11 and ¶65A.12, found the two conditions

distinguishable.    Therefore, we cannot say the commission erred

in finding claimant's disease was not the expected result of

exposure to his workplace environment about which he had been

warned.
        Accordingly, we affirm the commission's decision.

                                                            Affirmed.




                                  -6-
