                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Overton
Argued at Alexandria, Virginia


ANDREA MARIE FREY
                                                  OPINION BY
v.   Record No. 0492-02-4                 JUDGE JAMES W. BENTON, JR.
                                              DECEMBER 10, 2002
GUNSTON ANIMAL HOSPITAL AND
 CINCINNATI INDEMNITY CO.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Mark S. Levinstein (Williams & Connolly, LLP,
             on brief), for appellant.

             Calvin W. Fowler (Williams Mullen, on brief),
             for appellees.


     Andrea Marie Frey appeals from a decision of the Workers'

Compensation Commission denying her claim for reimbursement for

the cost of injections, which she alleged were required as a

result of exposure to the rabies virus in her employment.       She

contends the commission erred in finding that the feral cat she

medicated did not have rabies and that the evidence failed to

prove an injury by accident.     For the following reasons, we

reverse the commission's decision.

                                 I.

     The evidence is essentially undisputed.     Gunston Animal

Hospital employed nineteen-year-old Andrea Marie Frey as a

veterinary assistant.     Although Frey had not been vaccinated for
rabies, Dr. Allison Mayo, the veterinarian-owner who was

treating a feral cat for upper respiratory and head cold

symptoms, directed Frey to medicate the cat.   Frey put

medication into the cat's mouth using her hands, which had

pre-existing scratches from handling other animals.   Frey

testified that when she put her hand inside the cat's mouth to

insert the medication, she probably touched the cat's tongue and

that there was "a good chance that . . . saliva came in contact

with [her] hands."   The day after Frey medicated the cat, the

cat's condition worsened.

     Before the cat came to the hospital for treatment, the cat

had been in a colony of feral cats.   These feral cats were

living less than three miles from a park where three feral cats

were discovered to be rabid.   The veterinarian who treated the

cat was unaware of these circumstances and had not directed Frey

to take precautions with the cat.   After the cat developed

progressive neurologic symptoms, however, another veterinarian

instituted rabies precautions to assure that none of the

employees would have further exposure to the cat.   The

veterinarian then "euthanized" the cat but failed to test the

cat for rabies.

     After the hospital "erroneously" delivered the cat's body

to be buried, the veterinarian-owner who had treated the cat

obtained a booster shot for herself to prevent a rabies

infection.   When the veterinarian-owner learned of Frey's
                              - 2 -
exposure to the cat, she contacted several experts in rabies

epidemiology because of her concern for Frey, who was

unvaccinated.   After those experts recommended rabies treatment

for Frey, Frey received injections to prevent rabies infection.

The hospital's workers' compensation insurer concluded, however,

that Frey's condition did not result from an accidental injury

or occupational disease and declined to pay for the treatment.

     The deputy commissioner denied Frey's claim for

reimbursement of the $1,765 cost for the injections.    The deputy

commissioner ruled that Frey did not have an occupational

disease because she was never diagnosed with rabies.    In

addition, the deputy commissioner ruled that Frey did not

sustain an injury by accident and that Frey was seeking benefits

for prophylactic treatments.

     Rendering three opinions on review, the commission upheld

the deputy commissioner's decision.   The majority opinion found

that Frey only proved a possible exposure to rabies and has

never been diagnosed with rabies.   Thus, it denied Frey's claim

on the ground that Frey failed to carry her burden of proving

she has suffered either an occupational disease or an injury by

accident.   In a concurring opinion, a commissioner agreed that

Frey's claim was not compensable, stating, however, that "[i]f

the cat had tested positive for rabies, [he] would have found

that the risk of being stricken with rabies was sufficient to

render the claim compensable." In a dissenting opinion, the
                             - 3 -
third commissioner indicated the evidence warranted an award

because "an employee who during the course of her employment

becomes exposed to a potentially fatal substance has sustained

an injury by accident" and is entitled to be reimbursed for

treatment rendered for that exposure.

                              II.

     This record presents no conflicts in any material fact.      As

such, the sufficiency of the evidence to support the

commission's decision is purely an issue of law.   Eccon Const.

Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981).     In

other words, the commission's decision, unlike one based on

conflicting facts, is not conclusive; rather, it is subject to

our determination whether "'the correct legal conclusion has

been reached.'"   Id. (quoting City of Norfolk v. Bennett, 205

Va. 877, 880, 140 S.E.2d 655, 657 (1965)).   On the evidence in

the record, we must determine whether Frey has "'prove[d] by a

preponderance of the evidence . . . an "injury by accident."'"

Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d

756, 758 (2000) (citations omitted).

                              (A)

     The commission found that Frey failed to prove the feral

cat had rabies and that "[t]he most [Frey] has demonstrated is a

possible exposure to a rabid animal."   No credible evidence

supports that finding.


                              - 4 -
     "Having in mind that the purpose of the Compensation Act is

to protect the employee, and that it should be construed

liberally and favorably as to the workman, we [take] a common

sense practical view of the facts and [the universally] accepted

. . . medical theory" proved on this record.   Ellis v.

Commonwealth, 182 Va. 293, 303, 28 S.E.2d 730, 734 (1944).     The

only fact that supports the commission's finding is the lack of

a positive rabies test.   The absence of a test, however, is not

alone sufficient to find that the evidence did not prove by a

preponderance the cat had rabies.

     The undisputed evidence established that the feral cat had

lived outdoors within three miles of other rabid, feral cats.

Although the treating veterinarian initially had not been aware

of the cat's living environment, when the cat's symptoms of

upper respiratory illness quickly developed into signs of

neurological dysfunction consistent with rabies, another

veterinarian responded.   Her conduct demonstrates her

significant concern about the existence of rabies in the cat.

She first instituted rabies precautions and, after the cat

developed progressively worsening neurological symptoms, she

"euthanized" the cat.   The record clearly indicates the concern

about rabies was not just an academic one.   Although the

treating veterinarian had been vaccinated against the rabies

virus, she obtained a booster injection to protect against

rabies.   Furthermore, when the veterinarian-owner contacted
                              - 5 -
"experts in rabies epidemiology" and explained the events, those

experts recommended Frey be treated for rabies and developed a

treatment plan.   The veterinarian-owner reported she could not

say conclusively that the cat had rabies because "the

veterinarian on duty erroneously permitted the cat's body to be

taken and . . . buried without rabies testing."   She opined,

however, "very strongly that this cat probably had rabies."

     Frey is not required to conclusively prove the cat had

rabies.   As the Supreme Court long ago noted, although the

employee has the burden of establishing her claim, she need not

do so beyond all reasonable doubt.   Byrd v. Stonega Coke & Coal

Company, 182 Va. 212, 221, 28 S.E.2d 725, 729 (1944).     Unless a

statute designates differently, "[t]he burden of persuasion

. . . is proof by a preponderance of the evidence."     Craddock

Moving & Storage Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d

428, 430 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994).

     When, as here, the evidence raises a "strong natural

inference" about the fact to be proved, Byrd, 182 Va. at 221, 28

S.E.2d at 729, the conclusion is inescapable that the feral cat

had rabies.   Indeed, the record contains no testimony or

evidence to the contrary.   Absent any conflicting evidence,

there is only one "logical conclusion to be drawn from the facts

and circumstances" proved on this record, id., -- the evidence

proved by a preponderance that the feral cat was rabid.     All of

the circumstances, especially the events that occurred after the
                             - 6 -
feral cat developed progressive neurologic symptoms, contributed

to the veterinarian's expert conclusion that the feral cat had

rabies.   Accordingly, we hold that the commission's ruling that

the evidence failed to prove the cat had rabies is not supported

by credible evidence.

                               (B)

     "[T]o establish an 'injury by accident,' [an employee] must

prove (1) that the injury appeared suddenly at a particular time

and place and upon a particular occasion, (2) that it was caused

by an identifiable incident or sudden precipitating event, and

(3) that it resulted in an obvious mechanical or structural

change in the human body."    Southern Express v. Green, 257 Va.

181, 187, 509 S.E.2d 836, 839 (1999).   As a guiding principle in

applying the Act, we are required to liberally construe the

provisions of the Act to carry out its humane and remedial

purposes of affording compensation to employees who suffer

accidental injuries resulting from hazards in the work

environment.   Baggett Transp. Co. v. Dillon, 219 Va. 633, 637,

248 S.E.2d 819, 822 (1978); Feitig v. Chalkley, 185 Va. 96, 98,

38 S.E.2d 73, 73-74 (1946).

     The evidence proved that Frey was required to give the cat

medicine by placing her "hand inside of the cat's mouth."

Frey's hands had "scratches . . . at the time she treated the

cat" and were exposed to the cat's tongue and saliva.    Thus,

Frey's exposure to rabies was an identifiable incident occurring
                             - 7 -
when she put her hands in the cat's mouth.    Frey's exposure to

the virus occurred suddenly upon the contact of her scratched

hands with the cat's tongue and saliva.     See Derby v. Swift Co.,

188 Va. 336, 341, 49 S.E.2d 417, 420 (1948).    Exposure of broken

skin to the rabies virus is a means by which infection occurs in

the body, resulting in bodily change.     See e.g. Burlington Mills

Corp. v. Hagood, 177 Va. 204, 209, 13 S.E.2d 291, 293 (1941)

(noting that injury includes whatever change in one's system

produces a lessened facility of a bodily capability).    Of

course, for purposes of determining whether Frey suffered an

injury by accident, "it is not essential that the scratch [on

her hand] be itself received in the course of employment, for

the significance of the scratch lies in the abnormality and

definiteness of the entry of the germs."    3 Arthur Larson and

Lex K. Larson, Larson's Workers' Compensation Law § 51.02

(2002).

     Recognizing the serious risk to which Frey was exposed, the

veterinarian-owner sought advice from persons experienced with

rabies epidemiology.   Those experts advised her to get treatment

for Frey.   The veterinarian-owner informed the commission that

her "decision to pursue treatment [for Frey] was based on

published recommendations from national experts."    The evidence

also proved that the clinic personnel advised Frey that she

needed to take a series of injections to prevent rabies.      The

record contains the report from the director of this clinic that
                             - 8 -
"[r]abies is a fatal disease if not treated with vaccine and

immune globulin."    The report further indicates that "when a

documented or likely exposure has occurred, post exposure

prophylaxis is indicated regardless of the length of the delay,

provided the clinical signs of rabies are not present."    To

prove an injury by accident "[i]t is not necessary to show an

immediate onset of the symptoms of an injury."     Turcios v.

Holiday Inn Fair Oaks, 24 Va. App. 509, 515 n.1, 483 S.E.2d 502,

504 n.1 (1997).

     The evidence in this record establishes that a medically

recognized treatment, which can be administered before the fatal

rabies virus is manifested, can effectively cure the

consequences of exposure to the virus.    This evidence was

sufficient to prove that Frey suffered an injury by accident

when her hands, which had "numerous cuts . . . from previous

animal encounters," were exposed to the saliva and the tongue of

an ill, feral cat, which the veterinarians subjected to "rabies

precautions . . . the next morning as the cat continued to

worsen."

     Furthermore, the record is undisputed that if a person who

contracts the rabies virus is untreated, the result is generally

fatal.     See also Andrulonis v. United States, 724 F.Supp. 1421,

1438 (N.D.N.Y. 1989) (noting that the "neurologic effects of the

rabies virus on an infected individual are so severe that the

disease of rabies is almost always fatal"), aff'd in part and
                             - 9 -
rev'd in part, 952 F.2d 652 (2nd Cir. 1991).     The seriousness of

Frey's exposure is attested by the hospital's actions following

the discovery of the feral cat's neurologic symptoms.    Under

these circumstances, the injections, which were rendered after

this exposure and given as medically recommended to prevent the

fatal illness, were not preventative medicine but, rather,

treatment for exposure to the rabies virus.    In a similar vein,

the commission has ruled that after an employee has infectious

exposure to a person who has hepatitis B, "medical treatment

rendered . . . to prevent the employee from contracting the

disease . . . [is not] preventive medicine."     Cross v. Neurology

Specialists, Ltd., 67 Va. W.C. 45 (1988).

        Other courts have "h[e]ld that persons exposed to a serious

risk of contracting a disease which is commonly known to be

highly contagious/infectious and potentially deadly, have been

'injured' for the purpose of receiving compensation under the

Act."     Jackson Township Volunteer Fire Department Company v.

Workmen's Compensation Appeal Board, 594 A.2d 826, 828 (Pa.

Commw. Ct. 1991).     See also Arkansas Dep't of Corrections v.

Holybee, 878 S.W.2d 420 (Ark. App. 1994).     We are persuaded, as

was the court in Doe v. City of Stamford, 699 A.2d 52 (Conn.

1997), that "[i]ndeed, it would be contrary to the humanitarian

and remedial purpose of the act to infer that the legislature

intended that an employee who sustains actual exposure to a

potentially fatal infectious disease must await the onset of the
                             - 10 -
disease before he can recover expenses associated with

necessary, and possibly lifesaving, medical intervention."     Id.

at 55.   Thus, as the Doe court held, when an employee "has

sustained actual exposures to life threatening infectious

diseases in incidents that arose out of and occurred in the

course of his employment, the [employee] has suffered

compensable injuries under the act and may recover the expenses

associated with reasonable medical testing and treatment."    699

A.2d at 54.

     In summary, because the scratches on Frey's hands were

exposed to the tongue and saliva of a feral cat that was subject

to rabies precautions by Frey's employer before it was destroyed

and that the veterinarian believed to be rabid, the evidence

proved Frey suffered actual exposure to a life threatening

virus.   Thus, the evidence proved a compensable injury by

accident for which she was entitled to recover the expenses

incurred for the rabies treatment.

     Accordingly, we reverse the commission's decision denying

the award.

                                                         Reversed.




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