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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
BRIAN S. LINDENFELD
OPINION BY
v.    Record No.  0790-97-2                                            JUDGE LARRY G. ELDER
NOVEMBER  4,  1997
CITY OF RICHMOND SHERIFF'S OFFICE
AND TRIGON ADMINISTRATORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Malcolm Parks, III  (Christopher A. Jones;
Maloney, Barr & Huennekens, on briefs), for
appellant.
William Joe Hoppe, Senior Assistant City
Attorney  (Office of the City Attorney, on
brief), for appellees.
Brian S. Lindenfeld  (claimant) appeals an order of the
Workers' Compensation Commission  (commission) denying his claim
for benefits.    He contends the commission erred when it found
(1) that his tuberculosis was an ordinary disease of life rather
than an occupational disease and  (2) that he failed to prove by
clear and convincing evidence that his tuberculosis was caused by
his employment at the Richmond City Jail.    For the reasons that
follow, we affirm.
I.
BACKGROUND
Claimant, a deputy sheriff, has worked at the Richmond City
Jail  (jail) since  1985.    In early  1992, claimant took a TB skin
test and tested "negative."    In early March,  1994, claimant took
another TB skin test and this time tested "positive."    A




subsequent biopsy of a lesion in his lung revealed that he had
active tuberculosis.
Believing he had contracted tuberculosis while working at
the jail, claimant filed a claim for medical benefits and
temporary total disability benefits.    A deputy commissioner held
a hearing.    Dr. Jack Freund, the chief physician at the jail,
testified during a de bene esse deposition about the methods by
which tuberculosis is transmitted and the course of the disease.
He testified that tuberculosis is generally transmitted only
through the inhalation of airborne droplets of saliva or sputum
from a person with an "active" case of the disease.    Unlike the
common cold, tuberculosis is generally not transmitted through
contact with the skin of a person suffering from active TB.    The
doctor testified that tuberculosis would not be transmitted "[i]f
someone who is active with TB coughed or sneezed into his or her
hand and then shook hands with" a non-infected person.
Dr. Freund testified that tuberculosis is a bacterial
disease with two stages:    an asymptomatic stage and an "active"
stage.    A person infected with the tuberculosis bacteria remains
asymptomatic as long as his or her immune system is healthy
enough to produce macrophages that destroy the bacteria.
Although a person with asymptomatic tuberculosis will test
positive for the disease when he or she undergoes a TB skin test,
these persons are incapable of transmitting the disease to
others.    A person infected with tuberculosis will develop an
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"active" case  -- and thus be able to transmit the disease  -- if
his or her immune system "breaks down" and no longer holds in
check the TB bacteria living in his or her body.
Dr. Freund testified that the incidence of tuberculosis is
greater among prison inmates than it is in the general
population.    He cited two articles from the Journal of the
American Medical Association  (JAMA) reporting on the increased
incidence of tuberculosis in certain prison populations.    See
M. Miles Braun, et al., Increasing Incidence of Tuberculosis in a
Prison Population,  261 JAMA  393,  394  (1989)  (stating that the
incidence of tuberculosis in New York prisons increased from less
than  25 cases per  100,000 inmates from  1976 through  1979 to  105.5
per  100,000 in  1986); Government Issues Guidelines to Stem Rising
Tuberculosis Rates in Prisons,  262 JAMA  3249,  3249  (1989)
(stating that the incidence of tuberculosis in prisons in
California and New Jersey in  1987 was, respectively, six times
and eleven times greater than the incidence of the disease in the
general populations of those states).    In the latter article,
John J. Seggerson, Jr., Chief of the Division of Tuberculosis
Control of the Centers for Disease Control, explained that
"[o]vercrowded and poorly ventilated prisons are ideal
environments for the spread of TB."    See Government Issues
Guidelines to Stem Rising Tuberculosis Rates in Prisons,  262 JAMA
at  2349.
Both Captain Michael Minion, the Director of Medical
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Services at the jail, and Dr. Freund testified about the physical
condition of the Richmond City Jail and the incidence of
tuberculosis exposure among inmates and staff.    Both agreed that
the Richmond City Jail is overcrowded and has an unsophisticated
ventilation system.    The facility was designed to house a maximum
of  750 to  800 inmates; in May,  1996, its inmate population was
between  1,100 and  1,300.    In addition, the section of the jail in
which the male inmates are housed does not have air-conditioning
and is ventilated only by air flowing through windows, which are
closed during cold weather, and hallways.
Captain Minion testified that he maintains statistics
regarding the incidence of tuberculosis at the jail among inmates
and employees.    He testified that, in  1993 and  1994, a total of
four inmates were diagnosed with active tuberculosis, two in each
year.    He also testified that twenty-six of the jail's employees
who took a TB skin test in  1994 "converted" from TB negative to
TB positive.    Fourteen more employees converted to TB positive in
1995.    Dr. Freund testified that the "conversion rate" of jail
employees from TB negative to TB positive was higher than in the
general population.    Claimant was the only employee to be
diagnosed with active tuberculosis.
Claimant testified about his duties at the jail and the
nature of his contact with inmates.    In between his "negative" TB
test in  1992 and October,  1994, claimant was assigned to
"shakedown" duty, which included examining the inside of inmates'
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mouths from a distance of two to three inches.    During these
examinations, inmates occasionally yelled or breathed heavily
upon claimant.    Since October  21,  1992, claimant worked as the
officer in charge of the property and supply section of the jail,
a job that had three components.    First, claimant issued supplies
to inmates who were escorted to the property and supply office
and worked side-by-side with inmates who had been "detailed" to
assist him with unloading delivery trucks.    Second, claimant
provided security in the mess hall five days per week from  11:00
a.m. until  12:30 or  1:00 p.m.    During this time, every inmate in
the jail except those held in isolation passed through the mess
hall for lunch.    Third, claimant continued to perform shakedowns
of inmates once or twice a week.    His shakedown duties included
the close inspection of inmates' mouths.
Claimant testified about his known exposure to tuberculosis
at work and in public.    Claimant testified that he was not aware
of ever having actual contact with an inmate suffering from
active tuberculosis during the time between his two TB tests.    He
testified that jail authorities did not disclose the identities
of inmates who had active TB.    Claimant also testified that he
was not aware of ever having interacted with a person infected
with active tuberculosis outside of his work at the jail.
Claimant testified that, although he had part-time jobs outside
of his employment during the relevant time period, these jobs
involved little contact with other people.    He testified that he
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did have contact with his family and intermittent visitors to his
house and occasionally frequented stores such as  7-Eleven and
Wal-Mart.    Finally, claimant testified that, when he learned that
he had active tuberculosis, he immediately told the people with
whom he had the most contact:    his four children, his girlfriend
and her children, his ex-wife, and the person who employed him to
drive the tow truck.    All of these people subsequently tested
negative for tuberculosis.
Both Captain Minion and Dr. Freund testified about the
procedures established at the jail to test and treat inmates for
tuberculosis.    Every inmate who enters the facility and stays
long enough is given a "TB Mantoux Skin Test" within twenty-four
to forty-eight hours after his or her arrival.    The results of
these tests are obtained when the inmate is reexamined
forty-eight to seventy-two hours later.    If the skin test is
positive, the inmate is subjected to an x-ray photograph of his
or her chest and a test of his or her liver function, which
diagnose the extent of the inmate's infection.    The "TB positive"
inmate is also given "prophylactic medications for TB."    Unless
the chest x-ray and the liver test indicate that an inmate has
active TB, the inmate remains housed in the general inmate
population.    If an inmate is discovered to have active TB, the
inmate is isolated in the medical tier of the jail and then
transferred as soon as possible to either the Department of
Corrections' Office of Health Service or to the Medical College
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of Virginia.    This transfer occurs quickly because the medical
facility in the jail does not have "respiratory isolation."
While an inmate with active tuberculosis is isolated in the
medical tier awaiting transfer, both the inmate and deputies
working nearby wear a "hepa-filter tuberculosis mask."
As a matter of practice, not every inmate entering the jail
is tested for tuberculosis.    The population of the jail is
transient, and Captain Minion estimated that as many as  20,000
inmates pass through the jail each year.    Inmates who are
released within twenty-four hours of entering the jail do not
receive a TB test because they leave before the test can be
administered.    In addition, the skin test is unlikely to detect
TB in inmates who are also HIV positive.    The jail houses an
unknown number of inmates who are HIV positive.    Any of these
inmates who also have TB are likely to produce a "false negative"
response to the TB skin test because their weakened immune
systems no longer produce the antibody upon which the skin test
relies to detect the presence of the tuberculosis in the body.
The record contains the opinions of three physicians
regarding the causation of claimant's TB infection, only one of
whom opined to a reasonable degree of medical certainty that
claimant contracted tuberculosis while working in the jail.    Dr.
C.F. Wingo of the Commonwealth's Department of Health opined in a
letter to claimant's attorney that "it is entirely possible that
[claimant's] tuberculosis infection resulted from his
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employment."    In support of his opinion, the doctor cited the
"excessive" conversion rate of employees at the jail from TB
negative to TB positive and the fact that claimant's family had
tested negative for the disease.    Dr. Yale H. Zimberg, who
performed the biopsy of claimant's lung and treated claimant's
tuberculosis, opined that he did "not know the source of
[claimant's] TB contact" and that it was possible that claimant
was exposed to the disease outside of the jail.    Dr. Freund
testified that he believed to a reasonable degree of medical
certainty that it was more likely than not that the exposure that
caused claimant's TB infection occurred while he was working at
the jail.    Dr. Freund based his opinion on:  (1) the articles in
the JAMA that stated that the incidence of tuberculosis in
prisons was greater than in the general population;  (2) the fact
that claimant's relatives tested negative for tuberculosis while
"there was active TB in the jail";  (3) the high "conversion rate"
of employees in the jail from TB negative to TB positive; and
(4) the hypothetical description of claimant's duties at the jail
given by claimant's attorney.    Dr. Freund testified that he
neither examined nor treated claimant and that he could not rule
out the possibility that claimant was infected outside of work.
Following the hearing, the deputy commissioner denied
claimant's claim.    The deputy commissioner reasoned that
claimant's tuberculosis was an ordinary disease of life and that
the evidence did not clearly and convincingly prove that claimant
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contracted tuberculosis at the jail.    The deputy commissioner
stated that
[i]t is certainly reasonable to suppose that
work in an area exposing a worker to a
greater chance of infection of a certain
disease in fact causes that disease.
Nevertheless,  .  .  . it is for the legislature
to act to create a presumption that prison
workers or other government employees coming
into close contact with the general public or
prisoners and who contract tuberculosis do so
as a result of their employment.
Claimant appealed, and the commission affirmed.    The
commission found that claimant's tuberculosis was an ordinary
disease of life and analyzed his claim under Code  §  65.2-401.
The commission then found that claimant had not proven by clear
and convincing evidence that his tuberculosis was caused by his
employment at the jail.
II.
CLASSIFICATION OF CLAIMANT'S TUBERCULOSIS
Claimant argues that the evidence was insufficient to
support the commission's finding that tuberculosis is an ordinary
disease of life rather than an occupational disease.    We
disagree.
An "occupational disease" is "a disease arising out of and
in the course of employment, but not an ordinary disease of life
to which the general public is exposed outside of the
employment."    Code  §  65.2-400(A).    Conversely, an "ordinary
disease of life" is a disease "to which the general public is
exposed outside of the employment."    See Code  §  65.2-401.
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Whether a particular condition or disease is an ordinary disease
of life is a question of fact.    See Knott v. Blue Bell, Inc.,  7
Va. App.  335,  338,  373 S.E.2d  481,  483  (1988).    The commission's
factual findings are binding on this Court and will be upheld on
appeal if supported by credible evidence.    See Wells v.
Commonwealth, Dept. of Transp.,  15 Va. App.  561,  563,  425 S.E.2d
536,  537  (1993)  (citation omitted); Code  §  65.2-706(A).
We hold that credible evidence supports the commission's
finding that claimant's tuberculosis was an ordinary disease of
life to which the public is exposed outside of claimant's
employment.    See Van Geuder v. Commonwealth,  192 Va.  548,  551,  65
S.E.2d  565,  567  (1951).    Two of the physicians who expressed
opinions about the nature and causation of claimant's
tuberculosis indicated that claimant could have been exposed to
the disease outside the jail environment.    Dr. Zimberg opined
that it was possible for claimant to have contracted tuberculosis
"regardless of his work environment."    Dr. Freund testified that
claimant could have been exposed to tuberculosis while walking in
any public place, such as a supermarket, in which a person with
active tuberculosis discharged saliva or sputum by sneezing.
Because credible evidence supports the commission's finding, it
is binding on appeal.
III.
CAUSATION OF CLAIMANT'S TUBERCULOSIS
Claimant next argues that the commission erred when it
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concluded that his tuberculosis was not compensable as an
ordinary disease of life under Code  §  65.2-401.    We disagree.
For an ordinary disease of life to be compensable under Code
§  65.2-401, a claimant must prove by "clear and convincing
evidence, to a reasonable degree of medical certainty" that the
disease  (1) arose out of and in the course of his employment,
(2) did not result from causes outside of the employment, and
(3) follows as an incident of an occupational disease, is an
infectious or contagious disease contracted in the course of the
employments listed in Code  §  65.2-401(2)(b), or is characteristic
of the employment and was caused by conditions peculiar to the
employment.    See Chanin v. Eastern Virginia Medical School,  20
Va. App.  587,  589,  459 S.E.2d  523,  524  (1995).
The commission concluded that claimant failed to prove the
first and third elements required to receive benefits under Code
§  65.2-401.    Specifically, the commission found that claimant did
not prove by clear and convincing evidence that his employment in
the jail caused his tuberculosis.    "Whether a disease is causally
related to the employment and not causally related to other
factors is  .  .  . a finding of fact."    Island Creek Coal Co. v.
Breeding,  6 Va. App.  1,  12,  365 S.E.2d  782,  788  (1988).
The medical evidence in the record established that
tuberculosis is only transmitted through the inhalation of
airborne droplets of sputum or saliva from a person with an
"active" case of the disease.    Thus, in order to prove that he
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contracted tuberculosis at the jail, claimant had to prove by
clear and convincing evidence that he inhaled oral droplets
containing the TB bacteria that were discharged from an inmate
with active tuberculosis.1    Although the record established that
claimant worked in an environment where the chances of
contracting tuberculosis were greater than in other employments
or in public, we hold that credible evidence supports the
commission's finding that claimant did not prove by clear and
convincing evidence that he contracted tuberculosis while working
at the jail.
First, no evidence in the record directly established that
claimant was exposed to an inmate with active tuberculosis.
Claimant testified that he did not know whether he ever
personally interacted with an inmate suffering from active
tuberculosis during the time between his TB tests in  1992 and
1994.
In addition, the circumstantial evidence regarding
claimant's potential exposure to inmates with active tuberculosis
supports the commission's refusal to infer that claimant inhaled
airborne droplets carrying the disease while working at the jail.
Claimant testified that his duties at the jail during the
relevant time period required him to interact regularly with
inmates and included the periodic examination of their mouths
1The record established that claimant was the only employee
of the jail to suffer from active tuberculosis during the
relevant time period.
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from a distance of two to three inches during "shakedown" duty.
He testified that inmates occasionally yelled or breathed heavily
upon him during these examinations.
However, the evidence of claimant's interaction with inmates
must be considered together with the evidence regarding the
jail's policies regarding tuberculosis and its records of
documented cases.    When this is done, the totality of the
evidence in the record does not provide clear and convincing
proof that claimant was in fact exposed to an inmate with active
tuberculosis.    Although some inmates carried active tuberculosis
during the time between claimant's TB tests, none of these
inmates remained in the general inmate population for an extended
period of time.    Active tuberculosis was detected in four inmates
during the relevant time period.    However, pursuant to jail
policies, these inmates were isolated from the general inmate
population as soon as their tuberculosis was diagnosed.    In
addition, due to small loopholes in the implementation of the
jail's policy of testing every inmate for tuberculosis, it is
possible that some inmates lived in the general inmate population
with undetected cases of active TB.    In practice, some inmates
are released from the jail before the TB skin test can be
administered to them, and Captain Minion testified that it was
possible that some of these inmates had active tuberculosis.
However, the possibility that claimant was exposed to these cases
of active tuberculosis was remote because these inmates occupied
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the jail for a short interval of time and did not frequent the
areas of the jail in which claimant performed his duties.
Although inmates who had both HIV and active tuberculosis may
have eluded detection when given the TB skin test, no evidence in
the record establishes how many HIV positive inmates were in the
general population during the relevant time period.
Finally, the medical evidence also supports the commission's
conclusion that claimant did not meet the high burden of proof
required by Code  §  65.2-401.    Dr. Zimberg stated that he did not
know the origin of claimant's tuberculosis and that claimant
could have been exposed outside of his employment.    Dr. C.F.
Wingo of the State Department of Health wrote that it was
"entirely possible" that claimant contracted tuberculosis from
his employment, but his letter did not indicate that he held this
opinion to a reasonable degree of medical certainty.    Although
Dr. Freund testified that he believed claimant contracted his
tuberculosis at the jail, the commission, as the trier of fact,
was entitled to assign his opinion little weight in light of the
other evidence in the case, including its conflict with the
opinions of Drs. Zimberg and Wingo.    See Penley v. Island Creek
Coal Co.,  8 Va. App.  310,  318,  381 S.E.2d  231,  236  (1989)
(stating that "questions raised by conflicting medical opinions
will be decided by the commission").
Claimant argues that four key facts establish as a matter of
law that he contracted his tuberculosis at the jail.    First, he
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cites the articles in the JAMA stating that the incidence of
tuberculosis among some prison populations in other states was
greater than the incidence of the disease in the general
population.    Second, he cites the fact that the conversion rate
of employees at the jail from "TB negative" to "TB positive" was
higher than the conversion rate in the general population in  1994
and  1995.    Third, he cites the fact that all of the people
closest to him outside of his employment tested negative for
tuberculosis after he contracted the disease.    Finally, he cites
the fact that he came into contact with virtually every inmate of
the jail, except those isolated from the general population,
during his lunch time security duty in the mess hall.
Although claimant established that his risk of TB infection
at the jail was greater than in the general public and he
eliminated some possible sources of infection from outside of his
employment  (which is the second element of a claim under Code
§  65.2-401), these facts alone do not compel the conclusion that
he inhaled the TB bacteria while working in the jail.    Instead,
these facts merely show through an incomplete process of
elimination that claimant may have contracted tuberculosis while
at work.    To hold that this method of proof constitutes clear and
convincing evidence as a matter of law of a causal link between
employment and a disease, such as tuberculosis, that is
transmitted through the general population would effectively
shift the burden to the employer to prove that claimant
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contracted his disease from a source outside of his employment.
The express provisions of Code  §  65.2-401 assigning the burden of
proof by clear and convincing evidence to the employee preclude
such a conclusion.    See Van Geuder,  192 Va. at  557,  65 S.E.2d at
570.
Moreover, claimant's reliance on his contact with inmates
while patrolling the mess hall overstates the extent of his
exposure to tuberculosis.    Although claimant was in close
proximity to most of the inmate population while performing this
duty, it is unlikely that he contracted tuberculosis from this
interaction.    Claimant could only contract tuberculosis by
inhaling airborne droplets of sputum or saliva from a person with
active tuberculosis.    Only four cases of active tuberculosis were
detected among the inmate population during the relevant time
period.    The inmates with active tuberculosis were isolated from
the general population and were prevented from eating in the mess
hall as soon as their cases were diagnosed.    Dr. Minion testified
that most of the inmates with "hypothetical" cases of active
tuberculosis would have been released from the jail before
lunching in the mess hall.    Claimant testified that he could not
say he ever encountered an inmate with an active case of
tuberculosis.    Based on this tenuous circumstantial evidence of
exposure to airborne droplets containing the TB bacteria at the
jail, we cannot say the commission erred when it declined to
infer that claimant contracted the disease at the jail.    Compare
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Fairfax County v. Espinola,  11 Va. App.  126,  130,  396 S.E.2d  856,
859  (1990)  (holding that circumstantial evidence of medical
technician's exposure to hepatitis supported the commission's
finding that disease was contracted at work).
For the foregoing reasons, we affirm the decision of the
commission denying claimant's claim for benefits.
Affirmed.
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