Andrea Marie Frey v Gunston Animal Hospital, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
ANDREA MARIE FREY
OPINION BY
v. 	Record No. 0492-02-4 	JUDGE JAMES W. BENTON, JR.
DECEMBER 10, 2002
GUNSTON ANIMAL HOSPITAL AND
CINCINNATI INDEMNITY CO.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark S. Levinstein (Williams & Connolly, LLP,
on brief), for appellant.
Calvin W. Fowler (Williams Mullen, on brief),
for appellees.
Andrea Marie Frey appeals from a decision of the Workers'
Compensation Commission denying her claim for reimbursement for
the cost of injections, which she alleged were required as a
result of exposure to the rabies virus in her employment. 	She
contends the commission erred in finding that the feral cat she
medicated did not have rabies and that the evidence failed to
prove an injury by accident. 	For the following reasons, we
reverse the commission's decision.
I.
The evidence is essentially undisputed. 	Gunston Animal
Hospital employed nineteen-year-old Andrea Marie Frey as a
veterinary assistant. 	Although Frey had not been vaccinated for

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rabies, Dr. Allison Mayo, the veterinarian-owner who was
treating a feral cat for upper respiratory and head cold
symptoms, directed Frey to medicate the cat. 	Frey put
medication into the cat's mouth using her hands, which had
pre-existing scratches from handling other animals. 	Frey
testified that when she put her hand inside the cat's mouth to
insert the medication, she probably touched the cat's tongue and
that there was "a good chance that . . . saliva came in contact
with [her] hands." 	The day after Frey medicated the cat, the
cat's condition worsened.
Before the cat came to the hospital for treatment, the cat
had been in a colony of feral cats. 	These feral cats were
living less than three miles from a park where three feral cats
were discovered to be rabid. 	The veterinarian who treated the
cat was unaware of these circumstances and had not directed Frey
to take precautions with the cat. 	After the cat developed
progressive neurologic symptoms, however, another veterinarian
instituted rabies precautions to assure that none of the
employees would have further exposure to the cat. 	The
veterinarian then "euthanized" the cat but failed to test the
cat for rabies.
After the hospital "erroneously" delivered the cat's body
to be buried, the veterinarian-owner who had treated the cat
obtained a booster shot for herself to prevent a rabies
infection. 	When the veterinarian-owner learned of Frey's

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exposure to the cat, she contacted several experts in rabies
epidemiology because of her concern for Frey, who was
unvaccinated. 	After those experts recommended rabies treatment
for Frey, Frey received injections to prevent rabies infection.
The hospital's workers' compensation insurer concluded, however,
that Frey's condition did not result from an accidental injury
or occupational disease and declined to pay for the treatment.
The deputy commissioner denied Frey's claim for
reimbursement of the $1,765 cost for the injections. 	The deputy
commissioner ruled that Frey did not have an occupational
disease because she was never diagnosed with rabies. 	In
addition, the deputy commissioner ruled that Frey did not
sustain an injury by accident and that Frey was seeking benefits
for prophylactic treatments.
Rendering three opinions on review, the commission upheld
the deputy commissioner's decision. 	The majority opinion found
that Frey only proved a possible exposure to rabies and has
never been diagnosed with rabies. 	Thus, it denied Frey's claim
on the ground that Frey failed to carry her burden of proving
she has suffered either an occupational disease or an injury by
accident. 	In a concurring opinion, a commissioner agreed that
Frey's claim was not compensable, stating, however, that "[i]f
the cat had tested positive for rabies, [he] would have found
that the risk of being stricken with rabies was sufficient to
render the claim compensable." 	In a dissenting opinion, the

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third commissioner indicated the evidence warranted an award
because "an employee who during the course of her employment
becomes exposed to a potentially fatal substance has sustained
an injury by accident" and is entitled to be reimbursed for
treatment rendered for that exposure.
II.
This record presents no conflicts in any material fact. 	As
such, the sufficiency of the evidence to support the
commission's decision is purely an issue of law. 	Eccon Const.
Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981). 	In
other words, the commission's decision, unlike one based on
conflicting facts, is not conclusive; rather, it is subject to
our determination whether "'the correct legal conclusion has
been reached.'" 	Id. (quoting City of Norfolk v. Bennett, 205
Va. 877, 880, 140 S.E.2d 655, 657 (1965)). 	On the evidence in
the record, we must determine whether Frey has "'prove[d] by a
preponderance of the evidence . . . an "injury by accident."'"
Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d
756, 758 (2000) (citations omitted).
(A)
The commission found that Frey failed to prove the feral
cat had rabies and that "[t]he most [Frey] has demonstrated is a
possible exposure to a rabid animal." 	No credible evidence
supports that finding.

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"Having in mind that the purpose of the Compensation Act is
to protect the employee, and that it should be construed
liberally and favorably as to the workman, we [take] a common
sense practical view of the facts and [the universally] accepted
. . . medical theory" proved on this record. 	Ellis v.
Commonwealth, 182 Va. 293, 303, 28 S.E.2d 730, 734 (1944). 	The
only fact that supports the commission's finding is the lack of
a positive rabies test. 	The absence of a test, however, is not
alone sufficient to find that the evidence did not prove by a
preponderance the cat had rabies.
The undisputed evidence established that the feral cat had
lived outdoors within three miles of other rabid, feral cats.
Although the treating veterinarian initially had not been aware
of the cat's living environment, when the cat's symptoms of
upper respiratory illness quickly developed into signs of
neurological dysfunction consistent with rabies, another
veterinarian responded. 	Her conduct demonstrates her
significant concern about the existence of rabies in the cat.
She first instituted rabies precautions and, after the cat
developed progressively worsening neurological symptoms, she
"euthanized" the cat. 	The record clearly indicates the concern
about rabies was not just an academic one. 	Although the
treating veterinarian had been vaccinated against the rabies
virus, she obtained a booster injection to protect against
rabies. 	Furthermore, when the veterinarian-owner contacted

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"experts in rabies epidemiology" and explained the events, those
experts recommended Frey be treated for rabies and developed a
treatment plan. 	The veterinarian-owner reported she could not
say conclusively that the cat had rabies because "the
veterinarian on duty erroneously permitted the cat's body to be
taken and . . . buried without rabies testing." 	She opined,
however, "very strongly that this cat probably had rabies."
Frey is not required to conclusively prove the cat had
rabies. 	As the Supreme Court long ago noted, although the
employee has the burden of establishing her claim, she need not
do so beyond all reasonable doubt. 	Byrd v. Stonega Coke & Coal
Company, 182 Va. 212, 221, 28 S.E.2d 725, 729 (1944). 	Unless a
statute designates differently, "[t]he burden of persuasion
. . . is proof by a preponderance of the evidence." 	Craddock
Moving & Storage Co. v. Settles, 16 Va. App. 1, 3, 427 S.E.2d
428, 430 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994).
When, as here, the evidence raises a "strong natural
inference" about the fact to be proved, Byrd, 182 Va. at 221, 28
S.E.2d at 729, the conclusion is inescapable that the feral cat
had rabies. 	Indeed, the record contains no testimony or
evidence to the contrary. 	Absent any conflicting evidence,
there is only one "logical conclusion to be drawn from the facts
and circumstances" proved on this record, id., -- the evidence
proved by a preponderance that the feral cat was rabid. 	All of
the circumstances, especially the events that occurred after the

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feral cat developed progressive neurologic symptoms, contributed
to the veterinarian's expert conclusion that the feral cat had
rabies. 	Accordingly, we hold that the commission's ruling that
the evidence failed to prove the cat had rabies is not supported
by credible evidence.
(B)
"[T]o establish an 'injury by accident,' [an employee] must
prove (1) that the injury appeared suddenly at a particular time
and place and upon a particular occasion, (2) that it was caused
by an identifiable incident or sudden precipitating event, and
(3) that it resulted in an obvious mechanical or structural
change in the human body." 	Southern Express v. Green, 257 Va.
181, 187, 509 S.E.2d 836, 839 (1999). 	As a guiding principle in
applying the Act, we are required to liberally construe the
provisions of the Act to carry out its humane and remedial
purposes of affording compensation to employees who suffer
accidental injuries resulting from hazards in the work
environment. 	Baggett Transp. Co. v. Dillon, 219 Va. 633, 637,
248 S.E.2d 819, 822 (1978); Feitig v. Chalkley, 185 Va. 96, 98,
38 S.E.2d 73, 73-74 (1946).
The evidence proved that Frey was required to give the cat
medicine by placing her "hand inside of the cat's mouth."
Frey's hands had "scratches . . . at the time she treated the
cat" and were exposed to the cat's tongue and saliva. 	Thus,
Frey's exposure to rabies was an identifiable incident occurring

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when she put her hands in the cat's mouth. 	Frey's exposure to
the virus occurred suddenly upon the contact of her scratched
hands with the cat's tongue and saliva. 	See Derby v. Swift Co.,
188 Va. 336, 341, 49 S.E.2d 417, 420 (1948). 	Exposure of broken
skin to the rabies virus is a means by which infection occurs in
the body, resulting in bodily change. 	See e.g. Burlington Mills
Corp. v. Hagood, 177 Va. 204, 209, 13 S.E.2d 291, 293 (1941)
(noting that injury includes whatever change in one's system
produces a lessened facility of a bodily capability). 	Of
course, for purposes of determining whether Frey suffered an
injury by accident, "it is not essential that the scratch [on
her hand] be itself received in the course of employment, for
the significance of the scratch lies in the abnormality and
definiteness of the entry of the germs." 	3 Arthur Larson and
Lex K. Larson, Larson's Workers' Compensation Law § 51.02
(2002).
Recognizing the serious risk to which Frey was exposed, the
veterinarian-owner sought advice from persons experienced with
rabies epidemiology. 	Those experts advised her to get treatment
for Frey. 	The veterinarian-owner informed the commission that
her "decision to pursue treatment [for Frey] was based on
published recommendations from national experts." 	The evidence
also proved that the clinic personnel advised Frey that she
needed to take a series of injections to prevent rabies. 	The
record contains the report from the director of this clinic that

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"[r]abies is a fatal disease if not treated with vaccine and
immune globulin." 	The report further indicates that "when a
documented or likely exposure has occurred, post exposure
prophylaxis is indicated regardless of the length of the delay,
provided the clinical signs of rabies are not present." 	To
prove an injury by accident "[i]t is not necessary to show an
immediate onset of the symptoms of an injury." 	Turcios v.
Holiday Inn Fair Oaks, 24 Va. App. 509, 515 n.1, 483 S.E.2d 502,
504 n.1 (1997).
The evidence in this record establishes that a medically
recognized treatment, which can be administered before the fatal
rabies virus is manifested, can effectively cure the
consequences of exposure to the virus. 	This evidence was
sufficient to prove that Frey suffered an injury by accident
when her hands, which had "numerous cuts . . . from previous
animal encounters," were exposed to the saliva and the tongue of
an ill, feral cat, which the veterinarians subjected to "rabies
precautions . . . the next morning as the cat continued to
worsen."
Furthermore, the record is undisputed that if a person who
contracts the rabies virus is untreated, the result is generally
fatal. 	See also Andrulonis v. United States, 724 F.Supp. 1421,
1438 (N.D.N.Y. 1989) (noting that the "neurologic effects of the
rabies virus on an infected individual are so severe that the
disease of rabies is almost always fatal"), aff'd in part and

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rev'd in part, 952 F.2d 652 (2nd Cir. 1991). 	The seriousness of
Frey's exposure is attested by the hospital's actions following
the discovery of the feral cat's neurologic symptoms. 	Under
these circumstances, the injections, which were rendered after
this exposure and given as medically recommended to prevent the
fatal illness, were not preventative medicine but, rather,
treatment for exposure to the rabies virus. 	In a similar vein,
the commission has ruled that after an employee has infectious
exposure to a person who has hepatitis B, "medical treatment
rendered . . . to prevent the employee from contracting the
disease . . . [is not] preventive medicine." 	Cross v. Neurology
Specialists, Ltd., 67 Va. W.C. 45 (1988).
Other courts have "h[e]ld that persons exposed to a serious
risk of contracting a disease which is commonly known to be
highly contagious/infectious and potentially deadly, have been
'injured' for the purpose of receiving compensation under the
Act." 	Jackson Township Volunteer Fire Department Company v.
Workmen's Compensation Appeal Board, 594 A.2d 826, 828 (Pa.
Commw. Ct. 1991). 	See also Arkansas Dep't of Corrections v.
Holybee, 878 S.W.2d 420 (Ark. App. 1994). 	We are persuaded, as
was the court in Doe v. City of Stamford, 699 A.2d 52 (Conn.
1997), that "[i]ndeed, it would be contrary to the humanitarian
and remedial purpose of the act to infer that the legislature
intended that an employee who sustains actual exposure to a
potentially fatal infectious disease must await the onset of the

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disease before he can recover expenses associated with
necessary, and possibly lifesaving, medical intervention." 	Id.
at 55. 	Thus, as the Doe court held, when an employee "has
sustained actual exposures to life threatening infectious
diseases in incidents that arose out of and occurred in the
course of his employment, the [employee] has suffered
compensable injuries under the act and may recover the expenses
associated with reasonable medical testing and treatment." 	699
A.2d at 54.
In summary, because the scratches on Frey's hands were
exposed to the tongue and saliva of a feral cat that was subject
to rabies precautions by Frey's employer before it was destroyed
and that the veterinarian believed to be rabid, the evidence
proved Frey suffered actual exposure to a life threatening
virus. 	Thus, the evidence proved a compensable injury by
accident for which she was entitled to recover the expenses
incurred for the rabies treatment.
Accordingly, we reverse the commission's decision denying
the award.
Reversed.