COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

KATHRYNE SMITH 

 MEMORANDUM OPINION*

v. Record No. 1681-98-4 PER CURIAM 

 DECEMBER 8, 1998 

FAIRFAX HOSPITAL AND INOVA 

 HEALTH SYSTEM FOUNDATION, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Matthew H. Swyers; Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellant. 

 (Eric J. Berghold; McCandlish & Lillard, on 

brief), for appellees. 

 Kathryne Smith ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that her 

claim seeking an award of compensation for an occupational 

disease was not timely filed. Specifically, claimant argues that 

she did not receive a positive diagnosis of contact dermatitis 

until January 22, 1997, and, therefore, the statute of 

limitations contained in Code § 65.2-406(A)(5) did not begin to 

run until that date. Upon reviewing the record and the briefs of 

the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27. 

 In denying claimant's application and holding that her claim 

was time-barred, the commission found as follows: 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

 [T]he claimant reasonably knew from the 

communications given to her that her 

condition was in part from the gloves she 

wore at work. She acknowledged that as soon 

as Dr. [Martin S.] Horn told her [in October 

1990] one of the possibilities was from 

exposure to latex, she immediately started 

using cotton liners under the latex gloves 

while at work. . . . 

 In a recorded interview, upon being 

asked whether she remembered the date of the 

incident "or the date of the diagnosis," she 

expressed "the date of . . . diagnosis was 

the whole problem has been over four 

years. . . ." In her Claim for Benefits, for 

the date of communication, she wrote "had 

been previously told by former doctors also." 

 This is not a situation in which there was 

no known nexus between her contact dermatitis 

and her employment. Although the medical 

records, prior to her meeting with Dr. 

[Ellen] Kessler, do not directly reflect that 

there was a communication of latex causation, 

her testimony, her actions, and other 

documentation persuade us that she was aware 

that latex, which was not used by her in any 

other activity except her employment, was a 

substantial causative reason for her 

condition. 

 Code § 65.2-406(A)(5) requires that a claimant file for 

compensation for an occupational disease within "two years after 

a diagnosis . . . is first communicated to the 

employee . . . ."The statute "does not require that an employee 

receive from a physician a communication that his disease is work 

related." It requires only that he "learn that the condition is 

an occupational disease for which compensation may be awarded." 

 "Whether a diagnosis of an occupational 

disease was communicated and when the 

communication occurred are factual 

determinations." 
- 3 - 

City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 131-32, 

493 S.E.2d 661, 666 (1997) (citations omitted). 

 The medical records, claimant's testimony, and her recorded 

statement amply support the commission's factual findings. That 

credible evidence established that as early as October 1990, 

claimant knew that her contact dermatitis was a disease that 

might be caused by her wearing latex gloves at work. In fact, at 

that time, she took immediate precautions to avoid exposure to 

latex gloves at work. She did not file her claim until 1997. 

Thus, based upon this record, we cannot hold as a matter of law 

that claimant's evidence proved that her application was timely 

filed. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.