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Samartino v. Fairfax County Fire & Rescue

Court of Appeals of Virginia

March 24, 2015

GEORGE H. SAMARTINO
v.
FAIRFAX COUNTY FIRE AND RESCUE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

Affirmed.

Michael A. Kernbach (Law Office of Michael A. Kernbach, P.C., on brief), for appellant.

Jamie M Greenzweig, Assistant County Attorney (David P. Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy County Attorney; Karen L. Gibbons, Senior Assistant County Attorney; Office of the County Attorney, on brief), for appellee.

Present: Judges Humphreys, Petty and Decker.

OPINION

Page 693

[64 Va.App. 502] ROBERT J. HUMPHREYS, JUDGE

George H. Samartino (" Samartino" ) appeals the decision of the Virginia Workers' Compensation Commission finding that he did not prove total or partial disability resulting from leukemia entitling him to benefits

Page 694

pursuant to Code § 65.2-402(C). In this case, the parties do not disagree that Samartino was a firefighter who had been diagnosed with an occupational disease. The only dispute was whether he was disabled as a result of his disease.

I. Background

This Court must view the evidence in the light most favorable to the prevailing party before the commission. See [64 Va.App. 503] Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). As such, the evidence viewed in the light most favorable to Fairfax County Fire and Rescue (" the employer" ) is as follows.

On August 28, 2013, Samartino filed a claim for benefits alleging an occupational disease, leukemia, that arose out of and in the course of his employment. Pursuant to Code § 65.2-402(C) he sought temporary total disability benefits for September 11, 2012, September 13, 2012, September 15-19, 2012, October 3, 2012, October 18, 2012, October 19, 2012, October 30, 2012, December 10, 2012, and March 3, 2013, as well as a lifetime award for medical expenses.

During the November 21, 2013 hearing before the deputy commissioner, the parties stipulated that at the time of the hearing Samartino was employed as a firefighter for more than twelve years by Fairfax County Fire and Rescue and his weekly salary was $1,404.97. They also stipulated that ...


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