                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


THE GENIE COMPANY AND THE INSURANCE COMPANY
 OF THE STATE OF PENNSYLVANIA
                                                    OPINION BY
v.   Record No. 0914-99-3                     JUDGE ROBERT P. FRANK
                                                  APRIL 25, 2000
MARSHA HAMMER


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Monica L. Taylor (E. Scott Austin; Gentry,
           Locke, Rakes & Moore, on brief), for
           appellants.

           No brief or argument for appellee.


     The Genie Company and The Insurance Company of the State of

Pennsylvania (appellants) appeal the decision of the Workers'

Compensation Commission (commission) awarding benefits for an

occupational disease to Marsha Hammer (claimant).       On appeal,

appellants contend 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.   We agree and reverse the commission's

award.

                            I.   BACKGROUND

     Claimant was employed by appellant, The Genie Company, 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.

     At the hearing before the deputy commissioner, claimant

testified that the problems with her hands did not begin until

she started working at the coil form position.    On

cross-examination, she admitted that she washed dishes by hand

and used household cleaning products to clean her home.

     Claimant's hand eczema was diagnosed and treated by Dr.

Stephen Phillips.   Dr. Phillips' office notes from his initial

examination of claimant on October 16, 1997 state, "I am not

sure if this is entirely due to work she has been doing for a

long time without any problems.   It may be that the job of

grabbing small parts aggravates an underlying tendency for

dermatitis."   Dr. Phillips prescribed a topical cream and

advised claimant to avoid repeated grasping.   On October 30,

1997, Dr. Phillips examined claimant again and wrote in his

office notes, "I am not certain if this is due to work but seems

to be aggravated by handling materials."   On December 16, 1997,

Dr. Phillips noted that claimant's condition was greatly

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improved and advised claimant to avoid grasping with her right

hand.

        On January 30, 1998, Dr. Phillips answered a series of

questions propounded by appellants' counsel.     Dr. Phillips

wrote, "The underlying tendency to develop eczema is not a work

related illness or injury, but an acute flare such as this may

be precipitated by physical trauma such as handling the hot

boards."    Dr. Phillips also listed contact with household

cleaners, keeping hands wet for prolonged periods, or even

frequent hand or dish washing as potential causes of eczema such

as claimant developed.    Dr. Phillips opined that claimant's

attack of eczema was related to her employment at The Genie

Company but stated that the underlying condition of hand eczema

is not a work-related disease.

        On April 14, 1998, Dr. Phillips wrote that he could not

state with a reasonable degree of medical certainty that

claimant's condition was an occupational disease because hand

eczema is a "'disease of life.'"      He also stated that claimant's

eczema was not characteristic of her employment.

                             II.   ANALYSIS

        The commission ruled that claimant's hand eczema was an

occupational disease pursuant to Code § 65.2-400 and affirmed

the deputy commissioner's award of benefits.     Appellants argue

that claimant's hand eczema is a non-compensable ordinary

disease of life and that claimant failed to prove that her hand

                                   - 3 -
eczema was compensable because her treating physician opined

that the condition does not have its origin in a risk of the

employment and is not characteristic of claimant's employment.

We agree and reverse the commission's award.

     "[T]he issue whether a worker has suffered an impairment

that constitutes a compensable disease is a mixed question of

law and fact and, hence, a Commission finding on the question is

not conclusive and binding upon this Court but is properly

subject to judicial review."   Stenrich Group v. Jemmott, 251 Va.

186, 192, 467 S.E.2d 795, 798 (1996) (citations omitted).

     Code § 65.2-400 states, in part:

               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 disease of
          life to which the general public is exposed
          outside of the employment.
               B. A disease shall be deemed to arise
          out of the employment only if there is
          apparent to the rational mind, upon
          consideration of all the circumstances:
               1. A direct causal connection between
          the conditions under which work is performed
          and the occupational disease;
               2. It can be seen to have followed as
          a natural incident of the work as a result
          of the exposure occasioned by the nature of
          the employment;
               3. It can be fairly traced to the
          employment as the proximate cause;
               4. It is neither a disease to which an
          employee may have had substantial exposure
          outside of the employment, nor any condition
          of the neck, back or spinal column;
               5. It is incidental to the character
          of the business and not independent of the
          relation of employer and employee; and

                               - 4 -
               6. It had its origin in a risk
          connected with the employment and flowed
          from that source as a natural consequence,
          though it need not have been foreseen or
          expected before its contraction.

     Code § 65.2-401 states:

               An ordinary disease of life to which
          the general public is exposed outside of the
          employment may be treated as an occupational
          disease for the purposes of this title if
          each of the following elements is
          established by clear and convincing evidence
          (not a mere probability):
               1. That the disease exists and arose
          out of and in the course of employment as
          provided in § 65.2-400 with respect to
          occupational diseases and did not result
          from causes outside of the employment, and
               2. That one of the following exists:
               a. It follows as an incident of
          occupational disease as defined in this
          title; or
               b. It is an infectious or contagious
          disease contracted in the course of one's
          employment in a hospital or sanitarium or
          laboratory or nursing home as defined in
          § 32.1-123, or while otherwise engaged in
          the direct delivery of health care, or in
          the course of employment as emergency rescue
          personnel and those volunteer emergency
          rescue personnel referred to in § 65.2-101;
          or
               c. It is characteristic of the
          employment and was caused by conditions
          peculiar to such employment.

     Under Code § 65.2-400, a disease arises out of the

employment if it meets all of the enumerated criteria for

causation set forth in Paragraph B.    In this case, claimant

failed to prove all of the conditions specified in the statute.

Specifically, Code § 65.2-400(B)(4) states that the disease

cannot be one to which an employee would have substantial

                               - 5 -
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 § 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, we find that claimant's hand eczema was an

ordinary disease of life and was not an occupational disease.

     Under Code § 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 § 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

§ 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



                                - 6 -
Workers' Compensation Act. 1   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.

     For these reasons, we hold that claimant's hand eczema is a

non-compensable disease of life and reverse the commission's

award of benefits.

                                                         Reversed.




     1
       Although Ashland was decided before the enactment of Code
§ 65.2-401, we have cited it with approval in Teasley v.
Montgomery Ward & Co., Inc., 14 Va. App. 45, 49-50, 415 S.E.2d
596, 598 (1992). Further, the language of Code § 65.2-401
requires that an ordinary disease of life be traced to the
employment as its proximate cause, which is wholly consistent
with the holding in Ashland.

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