By Ryan Ortiz,2014-06-26 21:45
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VIRGINIA: 05/08/2001



    Opinion by TARR

    v. VWC File No. 200-87-19 Commissioner



Charlotte E. Vaughn, Esquire

    Glasser and Glasser, P.L.C.

    Crown Center Suite 600

    580 E. Main Street

    Norfolk, VA 23510

    For the Claimant.

Gerard E. W. Voyer, Esquire

    Taylor & Walker, P.C.

    P.O. Box 3490

    Norfolk, VA 23514

    For the Defendants.

     REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Deputy

    Commissioner C.E. Mercer at Richmond, Virginia.

     The claimant requests Review of the Deputy Commissioner’s October 31, 2000, Opinion

    finding that the evidence failed to establish that he suffered from asbestosis as the result of injurious exposure. We AFFIRM.

     The 59 year old claimant began working for the employer in August 1977 as a brick mason. This work included removing and replacing refractory in schools, ships, hospitals, power plants and paper mills. Pneumatic tools were used to remove the refractory, and brick mason tools were used to replace it. The claimant also worked for other employers for two or three week periods when work

    VWC File No. 200-87-19

    was slow. Before beginning work with this employer, the claimant worked for other employers and was exposed to asbestos without being provided any protection.

     The refractory material, the plastics, the castables, brick and insulating block and cement that he installs did not obtain asbestos. When they run into material that possibly contained asbestos, the brick masons leave the area and the employer seals it off to take tests. Before sometime around 1983 or 1985, the brick mason’s would remove any asbestos. They would wear tyveck suits and 8210 dusk masks. After this time, the Insulation Department was responsible for the removal of any asbestos. The claimant estimated that between 1977 and 1985, he was exposed to asbestos two to ten times per year. Since the change in the procedure in 1985, the pneumatic tools may come in contact with asbestos two or three times a year or sometimes less. Brick masons are furnished with protective gear that includes coveralls, booties, gloves, and hooded shields with air.

     The claimant testified that he recalled last being exposed to asbestos while working at the Union Camp Facility in Franklin, Virginia, in December 1999, while working on a No.4 Recovery Boiler. Asbestos had already been removed from the area and it was sealed. However, he and a co-worker while removing refractory material happened on an area that was not sealed.

     The claimant also testified to other recent exposure to asbestos at Moon Engineering Metro Shipyard and Norfolk Naval Yard. However, because the claimant conceded that he had not provided this information in his deposition, this testimony was limited.

     The claimant has smoked for 45 years two packs of Pall Mall cigarettes per day. He stopped work on August 31, 2000, after being diagnosed with chronic obstructive pulmonary disease. The only physician to diagnose the claimant with asbestosis was Dr. Richard Bernstein in December - 2

    VWC File No. 200-87-19

    1999. Dr. Bernstein evaluated the claimant at a hotel, at the direction of his attorneys, in

    anticipation of a third party claim.

     John Artis, Superintendent, testified that the only tests for asbestos at the International Paper

    Company (Union Carbide) in 1999 was bulk testing performed at the beginning of the project. Mr.

    Compton at some point requested a testing in the front area of the boiler adjacent to the mud drum.

    This test indicated the presence of asbestos. The area was sealed and it was removed. Mr. Artis

    testified that on the date that Mr. Compton discovered the asbestos, the claimant was not working

    with him and was assigned to a different area. There were no other reports of asbestos during the

    course of the work at this job site. Mr. Artis was overseeing three job sites at the same time and was

    not present all day. Mark Parker supervised the claimant’s work.

     The medical records reveal that on February 7, 1991, the claimant was admitted to Norfolk

    General Hospital with a history of pneumonia in 1970 and 1975. The claimant had a three-day

    history of chills, cough productive of yellow sputum and white axillary pain that was pleuritic in

    nature. He was also weak with shortness of breath on exertion. A history of the claimant smoking

    one to one-half packs per day for the past 30 years was noted. A chest x-ray revealed a white upper

    lobe infiltrate. The claimant was diagnosed and treated for upper lobe pneumonia and dyspnea. He

    was encouraged to stop smoking. It was noted that pulmonary functions were obtained on an

    annual basis at his place of employment because of his exposure to dust and asbestos.

     On April 9, 1992, Dr. Frank Gruber noted that the claimant’s pulmonary functions showed mild airway obstruction. By March 25, 1993, Dr. Steward was noting that the claimant’s chest x-

    ray showed no significant changes since March 30, 1992. His B reading was normal but there was

    moderate advanced COPD. Dr. E. H. Derring, in his spirometry exam, noted that this showed

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    VWC File No. 200-87-19

    moderate airway obstruction. Dr. Dominic Gaziano, in his July 25, 1994, report, noted that the

    claimant’s July 4, 1994, x-ray was a profusion of 0/1. The primary and secondary shapes and sizes were noted to be “s.”

     Dr. John Shaughnessy noted on February 1, 1999, during his examination, that the claimant

    had a chest x-ray and B reading done in February 1997 that showed bilateral granulomas but no

    evidence of pneumoconiosis. The claimant’s spirometry showed a normal FVC with a moderate

    reduction in the FEV1 and FEV1/FVC ratio, indicating mild obstructive lung disease that would be

    consistent with history of smoking.

     Dr. David Foreman, a pulmonary specialist and certified B reader, on June 20, 1999, noted

    that the claimant’s x-ray of June 14, 1999, was completely negative.

     Dr. Charles J. Donlan, Jr., also a B reader, read the same June 14, 1999 x-ray to show

    profusion of 0/1 with a small/size primary being “s” and secondary being “t.” No pleural

    thickening or calcifications were noted.

     The claimant testified and the record establishes that until the December 4, 1999,

    examination by Dr. Richard C. Bernstein, a certified B reader, that was done and paid for by his

    attorney, he did not receive a diagnosis of asbestosis. Dr. Bernstein, in his report of that date, noted

    that the claimant had a history of exposure to asbestos. This exposure was described as being

    around pipe fitters, insulators, and boilermakers. The claimant also worked in areas that had pipes

    covered with asbestos insulation. He handled asbestos insulation himself. A history of the claimant

    smoking 1.5 packs of cigarettes per day was noted. Reading the June 14, 1999, x-ray, the doctor

    concluded that the claimant had small opacities in the lower and mid lung zones of the s/t type. He

    had a profusion of 1/0. The pleural surfaces were normal and there was no parenchymal infiltrates.

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    VWC File No. 200-87-19

    He noted that there was significant parenchymal disease that with the proper exposure history and

    latency period was consistent with mild asbestosis. The doctor noted that “with possible showing

    early X-ray signs of asbestos related lung disease, this patient maybe at increased risk for further

    deterioration of his pulmonary functions.” Because of the risk of mesothelioma and bronchogenic carinoma, the doctor recommended that the claimant have annual pulmonary evaluations and avoid

    tobacco products.

     Dr. Shaughnessy in a January 20, 2000 medical summary, noted that the claimant’s x-ray

    was normal. In addition, the B reader and spirometry were normal. The claimant was found fit for

    duty. An x-ray of the same date was read by Dr. Denton Woodward as showing mild COPD.

     On January 25, 2000, Dr. E. H. Derring, read a January 21 2000, x-ray to show a profusion

    of 0/1 with primary shape/size of “t” and secondary as ”q.” No pleural thickenings or calcifications

    were noted. The doctor noted that there was no change from a September 29, 1995, x-ray.

     Subsequent medical reports merely refer to the diagnosis from Dr. Bernstein but do not

    make any independent diagnosis. For example, the September 9, 2000, report from Dr. Carlos A.

    Silva, notes reviewing the x-ray evaluation dated June 14, 1999, and that the B reading physician

    found it was consistent with mild asbestosis. The doctor indicated that the claimant had COPD, and

    the pulmonary function test done in December 1999, by Dr. Bernstein supported a diagnosis of

    emphysema. The flow volume loop was suggestive of upper airway obstruction of the extra-

    thoracic variable type. It was also noted that the claimant had the criteria for clinical diagnosis of

    chronic bronchitis. He noted that a B reader diagnosed the asbestosis. Likewise, the opinion stated

    by Dr. Alan Kunkel the claimant’s family physician, on April 26, 2000, indicates that the diagnosis of asbestosis was based on Dr. Bernstein’s reading as oppose to any independent determination.

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    VWC File No. 200-87-19

     After careful review of the evidence, we cannot find that the claimant has established that he, at this time, has asbestosis. The only physician to make an independent diagnosis that the claimant has asbestosis is Dr. Bernstein. He has, at most, diagnosed that there is a possible showing on x-rays of early signs of asbestos related lung disease. His reading of a July 14, 1999, x-ray was a profusion of 1/0. The same x-ray has been read by other pulmonary specialists and B readers, including Dr. Foreman and Dr. Donlan, who found that it did not establish any asbestos related disease. Likewise, Dr. Derring read a January 21, 2000 x-ray to not establish asbestosis. Based on this evidence, we find that the claimant has not established that he, at this time, has asbestosis.

     For these reasons, the Opinion of the Deputy Commissioner is AFFIRMED.


     This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty (30) days from the receipt of this Opinion

c: Lawrence Albert Gabbert, Sr.

     1886 Arrowood Street

     Norfolk, VA 23518

     C E Thurston & Sons, Inc.

     P.O. Box 2411

     Norfolk, VA 23501

     Liberty Mutual Fire Insurance Company

     P.O. Box 25333

     Charlotte, NC 28229

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