                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued by Teleconference


MITRE CORPORATION AND
 HOME INDEMNITY COMPANY
                                             MEMORANDUM OPINION * BY
v.             Record No. 1183-96-2        JUDGE ROSEMARIE ANNUNZIATA
                                               FEBRUARY 25, 1997
CHRISTINA GOURZIS


            FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
              Edward H. Grove, III (Brault, Palmer, Grove,
              Zimmerman, White & Mims, on briefs), for
              appellants.

              Roger L. Williams (Vasiliki Moudilos;
              Williams & Pierce, on brief), for appellee.



        Employer, Mitre Corporation, appeals the commission's award

of benefits to claimant, Christina Gourzis.         Employer contends

that the evidence is insufficient to support the commission's

finding that claimant suffered a compensable ordinary disease of

life.       For the reasons stated below, we affirm.

                                      I.

        Claimant was employed as a copier operator with employer

from January 1987 until December 4, 1992.         From September 1992

until December 4, 1992, she operated a particular copy machine in

a windowless room with a floor area eighteen feet square.         The

room also contained another, smaller copy machine.         Claimant

spent approximately nine hours per day in the room where both

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
machines ran nearly constantly.   She testified that the room was

hot, stuffy, and smelly as a result of the copiers and that the

air was not clear.   Three of claimant's coworkers also testified

that the room was hot and smelly.   The smell was described as

"weird" and "toxic."    One coworker testified that the odor

intensified during the week of December 4, 1992 and was

especially bad on that day.   Another coworker testified that the

odor grew worse as the room grew hotter.   A third described his

difficulty breathing in the room and testified that he

experienced respiratory problems sixty percent of the times he

entered.
     In mid-November 1992, claimant began having physical

problems she had not previously experienced, including tightness

in her chest, pain, an upset stomach, and headaches.   Her

symptoms dissipated while she was away from work over the

Thanksgiving holiday.

     Upon her return to work, the first week of December,

claimant had problems with the copier.    Specifically, she noticed

that toner had leaked into the machine.    On December 3, a copier

technician inspected the copier; claimant testified that when the

technician opened the machine it became evident that toner had

spread everywhere inside.   Claimant noticed that when she blew

her nose, the discharge contained black particles.   On December

4, claimant became very ill at work.    She experienced chest pain,

dryness in her throat, and persistent vomiting.   Claimant had no




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history of asthma or respiratory problems.

     On December 7, claimant was examined by her family

physician, Dr. Michael Trahos, who diagnosed her illness as a

chemically induced bronchitis.    On December 10, claimant was

admitted to the hospital, where, among others, Dr. Timothy C.

Bayly evaluated her.   Dr. Bayly diagnosed a third degree burn in

claimant's trachea and reported that the problem underlying

claimant's condition was one of chemical toxicity resulting from

exposure to overheated chemicals.      Claimant was later referred to

Dr. Rosemary K. Sokas who diagnosed occupationally induced

asthma, an acute tracheal ulceration, and an anxiety disorder

precipitated by the first two events.
     Drs. Trahos and Sokas specifically noted that claimant had

no preexisting respiratory condition.     Dr. Sokas opined that

claimant's condition resulted from exposure to chemical irritants

from the copier at work.   In addition to ozone generated by the

copy machine, Dr. Sokas specifically identified the chemical

components of the toner, developer, and fuser oils as elements

contributing to claimant's condition and noted that claimant's

exposure to the chemicals was enhanced by the temperature at

which the copier ran, by the leakage, and by the condition of the

workplace.   Likewise, Drs. Trahos and Bayly opined that

claimant's condition resulted from chemical exposure.

                                 II.

     The parties do not dispute that claimant's condition is an




                                 - 3 -
ordinary disease of life and that compensation is governed by

Code § 65.2-401.    To be compensated for an ordinary disease of

life, a claimant must prove,
          by clear and convincing evidence, to a
          reasonable medical certainty, that it arose
          out of and in the course of employment as
          provided in § 65.2-400 . . . and did not
          result from causes outside of the employment,
          and that: . . . [i]t is characteristic of the
          employment and was caused by conditions
          peculiar to such employment.


Code § 65.2-401.    See also Island Creek Coal Co. v. Breeding, 6
                                              1
Va. App. 1, 11, 365 S.E.2d 782, 788 (1988).

     1
      Code § 65.2-400(B) provides:

               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

               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


                                - 4 -
     "Whether a disease is causally related to the employment and

not causally related to other factors is . . . a finding of

fact."   Breeding, 6 Va. App. at 12, 365 S.E.2d at 788.   On

appellate review, we must construe the evidence in the light most

favorable to the prevailing party below, claimant in this

instance.    Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.

503, 504, 339 S.E.2d 916, 916 (1986).   Factual findings by the

commission that are supported by credible evidence are conclusive

and binding upon this Court.    Rose v. Red's Hitch & Trailer

Serv., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).      The

presence of contrary evidence in the record is of "no consequence

if there is credible evidence to support the commission's

finding."    Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,

407 S.E.2d 32, 35 (1991).

     We find that credible evidence in the case supports the

commission's finding that claimant's ordinary disease of life is

compensable.    The medical records of Drs. Trahos, Sokas, and

Bayly, as well as the testimony of claimant, corroborated by her

coworkers, concerning the heat, the leakage, and the odor in the

room, support the commission's finding that claimant's

respiratory problems, tracheal ulcer, and stress disorder arose

out of her employment and not as a result of other,

non-work-related factors.   The same evidence supports the

(..continued)

            before its contraction.



                                - 5 -
commission's finding that claimant's condition was

"characteristic of the employment and caused by the conditions

peculiar to the employment."   See Ingersoll-Rand Co. v. Musick, 7

Va. App. 684, 686-87, 376 S.E.2d 814, 816 (1989).    In Musick,

this Court interpreted the Act as providing that
          an employee has a compensable disease when he
          [or she] proves that [the] disease was, in
          fact, developed at work as a result of the
          usual conditions to which he was exposed by
          his employment. If the evidence shows a
          recognizable link between the disease and
          some distinctive feature of the claimant's
          job or work environment, we believe, if other
          qualifications are met, the legislature
          intended recovery.

Id. at 687, 376 S.E.2d at 816. 2

     In support of its position, employer relies on the testimony

of the copier technicians who serviced the copier during the Fall

of 1992 and found nothing wrong.   However, no technician was
     2
      The Musick Court provided the following example:

          An office worker exposed to asbestos at work,
          and who contracts asbestosis as a result of
          the exposure, would have a compensable
          ordinary disease of life because of the
          context in which the asbestosis was
          developed. However, if those diseases were
          developed outside of the workplace, they
          would not be compensable diseases. Thus, the
          legal test of whether a disease is "peculiar
          to the employment" is one of proof: if the
          claimant can affirmatively prove that he
          developed a disease because of the conditions
          of his workplace, he may receive
          compensation. If he cannot prove that the
          disease is a result of exposure in the
          workplace, he cannot recover.

7 Va. App. at 687 n.1, 376 S.E.2d at 816 n.1.



                               - 6 -
present on December 4, 1992, the day claimant became ill, and

none of the technicians was exposed to the conditions of the

workplace to the extent claimant was so exposed.   Furthermore,

claimant's testimony concerning the toner leakage and the odor,

heat, and air quality in the room was corroborated by her

coworkers, and any conflict in the testimony was resolved by the

commission.

     Employer also relies on the fact that Dr. Bayly's diagnosis

was predicated, in part, on claimant's report that the copier ran

at 460 degrees.   The copier's specifications called for it to

operate between 345-355 degrees.   One of the copier technicians

testified that the copier could not have reached 460 degrees and

that the copier appeared to be running at 358 degrees.   However,

as the commission found, the opinion of one of claimant's

experts, Dr. Sokas, was based on an operating temperature of 358

degrees.   Furthermore, the opinions of claimant's physicians were

based on the machine's temperature in conjunction with the toner

leakage; they were not based solely on the premise that the

machine was running at an excessive temperature.
     Employer also relies on results of testing completed in the

Spring of 1995 to support its contention that credible evidence

does not support a chemical exposure in December 1992.   The

results of the 1995 testing are even more tenuous than the

testimony of the technicians concerning the possibility of

chemical exposure in December 1992.    Not only were the tests




                               - 7 -
conducted over two years later but, by the time they were

conducted, the copier had been moved to a different location.

Furthermore, even assuming the 1995 tests shed some light on the

condition of the copier in 1992, the fact that the ozone readings

were within OSHA standards does not render the finding of a

chemical exposure incredible, especially since claimant's

physicians did not consider the exposure solely related to ozone.

Employer's argument that ozone levels in the ambient air are as

high as those found around the copier is, for the same reasons,

similarly not persuasive.
     Finally, employer argues that the commission should have

credited the opinion of its medical witness, Dr. Robert

Swotinski, which contradicted the opinions of claimant's

physicians.   It is well settled, however, that a finding of the

commission based on conflicting medical opinion, if credible, is

conclusive and binding on appeal.      E.g., Dep't of State Police v.

Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985).

     The decision of the commission is, accordingly, affirmed.
                                                            Affirmed.




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