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Fairfax County v. Espinola10/2/1990
KOONTZ, J.
Fairfax County (the County) appeals a decision of the Industrial Commission awarding benefits to Mario E. Espinola, claimant, for disability due to an occupational disease. On appeal, he County contends that the commission erred in finding that Espinola met his burden of proof under Code § 65.1-46.1 to establish hat his hepatitis was compensable. The County also asserts that he commission erred in finding that Espinola had filed his application for hearing within the time limits of Code § 65.1-52. We agree with the commission's decision and affirm.
Espinola worked as a senior medical technician for the Fairfax County Police Department for ten years, beginning in 1976. Throughout his employment, Espinola regularly administered blood tests and breathalyzer tests to persons arrested for driving while intoxicated. He conducted over 5,000 such tests and was exposed to blood approximately 200 times through needle punctures and breaking or seeping vials. On several occasions, he was exposed to blood from persons known to have hepatitis in their medical histories. His last recorded exposure to blood from a suspect who tested positively for hepatitis occurred on December 29, 1983.
Espinola did not have hepatitis when he was hired by the police department in 1976. In 1977, his liver function tests were normal. In 1982, his blood tests showed abnormal liver enzyme levels indicative of hepatitis. In a letter dated July 15, 1988, Dr. Vinod K. Rustgi stated that he saw Espinola in December, 1987 and performed a liver biopsy, which showed evidence of chronic persistent hepatitis. Dr. Rustgi diagnosed that Espinola had chronic non-A, non-B (NANB) viral hepatitis and referred him to the National Institutes of Health in February, 1988. Dr. Rustgi stated in a letter dated September 1, 1988, "Mr. Espinola's abnormal liver enzymes and his NANB hepatitis are most likely due to exposure to blood products during his job with the police department in the past." Dr. Frederic B. Walker, IV examined Espinola's medical records at the request of the County. He reported on October 30, 1988, that "it is virtually certain that Mr. Espinola acquired the disease as a consequence of his work, perhaps from exposure of 5/12/82."
Espinola's last day of work with the police department was May 17, 1986. He filed an application for hearing on July 1, 1988. A hearing was held before the deputy commissioner on November 22, 1988. The deputy commissioner found that Espinola had not met his burden of proof under Code § 65.1-46.1 because he admitted that he had not, to his knowledge, been exposed to NANB hepatitis and if the hepatitis was contracted as a result of his employment with the police department, he had been infected on or before May 12, 1982, thereby barring his claim under Code § 65.1-52. On review, the full commission reversed, finding that there was sufficient medical evidence to establish with reasonable medical certainty that Espinola contracted NANB hepatitis as a result of long periods of exposure to blood products in his employment and that there was no persuasive evidence of significant exposure outside of his employment. The commission also found that Espinola's application was filed within two years of a communication of diagnosis on December 16, 1987 and within five years of the last injurious exposure on the last day of employment, May 17, 1986.
The County argues that there was not sufficient evidence to show that Espinola had been exposed to NANB hepatitis while employed with the police department. Upon appellate review, the findings of fact of the Industrial Commission wi
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