COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

DEPARTMENT OF HEALTH/ 

 COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION*

v. Record No. 1732-96-1 PER CURIAM 

 JANUARY 7, 1997 

JOANNE BUTLER KEENE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James S. Gilmore, III, Attorney General; 

Gregory E. Lucyk, Senior Assistant Attorney 

General; Lee Melchor Turlington, Assistant 

Attorney General, on brief), for appellant. 

 (Jonathan A. Smith-George; Patten, Wornom & 

Watkins, on brief), for appellee. 

 Virginia Department of Health/Commonwealth of Virginia 

("employer") contends that the Workers' Compensation Commission 

("commission") erred in (1) finding that Joanne B. Keene 

("claimant") proved she was injuriously exposed to asbestos while 

working as a nurse epidemiologist for employer in the James 

Madison Building; (2) finding that claimant's mesothelioma 

constituted a compensable occupational disease or ordinary 

disease of life as defined by Code §§ 65.2-400 and 65.2-401, 

respectively; and (3) admitting into evidence certain documents 

related to asbestos contained in the James Madison Building. 

Upon reviewing the record and the briefs of the parties, we 

conclude that this appeal is without merit. Accordingly, we 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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summarily affirm the commission's decision. Rule 5A:27. 

I. and II. 

 On appeal, the commission's findings must be viewed in the 

light most favorable to the prevailing party below. R.G. Moore 

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). "'Whether a disease is causally related to the 

employment and not causally related to other factors is . . . a 

finding of fact.' When there is credible evidence to support it, 

such a finding of fact is 'conclusive and binding' on this 

Court." Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 

412 S.E.2d 205, 208 (1991) (citation omitted). "In determining 

whether credible evidence exists, the appellate court does not 

retry the facts, reweigh the preponderance of the evidence, or 

make its own determination of the credibility of the witnesses." 

Wagner Enters, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 

32, 35 (1991). 

 Code § 65.2-400 defines an occupational disease as one 

"arising out of and in the course of employment." The statute 

provides that "[a] disease shall be deemed to arise out of the 

employment" when the evidence establishes six elements. Element 

(1) requires that there be "[a] direct causal connection between 

the conditions under which work is performed and the occupational 

disease." Element (3) requires that the disease "can be fairly 

traced to the employment as the proximate cause." Employer 

contends that the commission erred in finding that claimant's 
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evidence proved the requisite causal connection between her 

mesothelioma and her employment.1

 

 Claimant's testimony regarding the white dust she frequently 

encountered in her work environment, the testimony and opinions 

of Dr. Joseph Guth, an industrial hygienist, the opinions of 

claimant's physicians, Drs. Legier and Schepers, and the 

documents reflecting that friable asbestos was located above the 

acoustical ceiling tiles on every floor of the James Madison 

Building and in the building's air handling system, constitute 

ample credible evidence to support the commission's finding that 

claimant acquired mesothelioma as a direct result of her exposure 

to asbestos during her thirteen years of working for employer in 

the James Madison Building. Because the commission's factual 

findings are supported by credible evidence, they are binding and 

conclusive upon this Court on appeal. Accordingly, we cannot say 

as a matter of law that the commission erred in finding that 

claimant proved she sustained a compensable occupational disease 

pursuant to Code § 65.2-400. 

 1The commission did not err in treating claimant's 

mesothelioma as a compensable occupational disease in accordance 

with the six requirements of Code § 65.2-400 rather than as an 

ordinary disease of life pursuant to Code § 65.2-401. If a 

claimant's occupational disease resulted from substantial 

exposure outside of the employment, the claimant must meet the 

more rigorous standard of proof contained in Code § 65.2-401. 

Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 38-39, 422 

S.E.2d 165, 170 (1992). Here, credible evidence supports the 

commission's findings that claimant encountered no substantial 

exposure to the causes of mesothelioma outside of her employment. 

 There was no evidence that claimant was exposed to asbestos 

outside of her employment which might have led to her disease. 
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 III. 

 "[R]igid or technical rules of pleading, evidence, or 

practice in the conduct of hearings shall not apply so long as 

the procedures adopted protect the substantial rights of the 

parties." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339 

S.E.2d 204, 207 (1986). See also Rule 2.2, Rules of the Virginia 

Workers' Compensation Commission. The commission is entitled to 

accept hearsay evidence without corroboration. Franklin Mortgage 

Corp. v. Walker, 5 Va. App. 95, 99, 360 S.E.2d 861, 864 (1987), 

aff'd on reh'g en banc, 6 Va. App. 108, 367 S.E.2d 191 (1988). 

 In light of the rules according the commission wide 

discretion in determining the evidence it will receive and 

consider, we cannot say that the commission abused its discretion 

in allowing the documents, some of which were employer's own 

records, into evidence. These documents, which related largely 

to the removal of asbestos from the James Madison Building, were 

relevant and material to the issues of exposure and causation. 

Furthermore, we find nothing to indicate that the commission 

violated employer's due process rights. The documents admitted 

into evidence were either prepared by the Commonwealth's 

employees or were studies of the James Madison Building that were 

commissioned or requested by employer.2

 

 2We note that claimant's exhibits E-1 and E-14 were not 

admitted into evidence or considered by the deputy commissioner. 

 Therefore, we find no merit in employer's argument with respect 

to these two documents. 
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 For the reasons stated, we affirm the commission's decision. 

 Affirmed.