Paramont Coal Company Virginia, LLC & Summit Point Insurance Company v. Carson Vanover ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Malveaux
UNPUBLISHED
Argued at Salem, Virginia
PARAMONT COAL COMPANY
VIRGINIA, LLC AND
SUMMIT POINT INSURANCE COMPANY
MEMORANDUM OPINION BY
v. Record No. 1658-17-3 JUDGE ROSSIE D. ALSTON, JR.
APRIL 17, 2018
CARSON VANOVER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Timothy W. Gresham (Kendra R. Prince; Penn, Stuart & Eskridge,
on brief), for appellant.
Paul L. Phipps (Paul L. Phipps, P.C., on brief), for appellee.
Paramont Coal Company Virginia, LLC (appellant) argues that the Workers’
Compensation Commission (Commission) erred when it awarded permanent total disability
benefits to Carson Vanover (appellee). Appellant specifically contends that appellee failed to
provide sufficient evidence demonstrating that he suffered from sufficient pulmonary function
loss pursuant to Code § 65.2-504(A)(4). Ultimately, appellant’s argument amounts to an issue of
statutory interpretation. We disagree with appellant’s interpretation and affirm the
Commission’s award.
BACKGROUND
Appellee, currently employed by appellant, was notified that he was diagnosed with coal
workers’ pneumoconiosis on April 13, 2015. The diagnosis was based on Dr. Kathleen
DePonte’s examination of a March 20, 2015 x-ray. Prior to that notification, appellee

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“completed more than 90 shifts” and “was exposed to coal mine dust” while employed by
appellant. The uncontroverted evidence was that appellee had been a coal miner for fifty years.
Appellee filed a claim for benefits under the Workers’ Compensation Act (Act) on May 5, 2015
requesting staged benefits and lifetime benefits. The deputy commissioner designated to hear the
matter resolved the claim based on the stipulations submitted. The issue before the deputy
commissioner was whether appellee established that he has “the occupational disease of coal
workers’ pneumoconiosis and, if so, to what extent.” The deputy commissioner opined that
appellee “contracted a compensable occupational disease as a consequence of his exposure to
coal dust while working for [appellant.]” The deputy commissioner further found that appellee
qualified for stage three benefits pursuant to Code § 65.2-504(A)(3). This determination was
supported by the findings of the Pulmonary Committee and three other doctors. In this regard,
appellee’s “x-ray show[ed] the presence of abnormalities consistent with coal workers’
pneumoconiosis that has advanced” to the requisite extent; Category A large opacities were
discovered. The deputy commissioner noted the contrary findings of three other doctors. The
deputy commissioner explained that even though contrary opinions existed, the findings of the
Pulmonary Committee and the first set of three doctors satisfied the preponderance standard.
Thus, appellee was awarded stage three benefits commencing April 13, 2015 for 300 weeks and
medical benefits for as long as necessary to treat his coal workers’ pneumoconiosis.
Subsequently, appellee then filed a claim alleging a change in condition and sought
permanent total disability. Regarding this claim, Deputy Commissioner Wise requested written
statements from the parties on the interpretation of Code § 65.2-504(A)(4). In those statements,
appellee advanced a disjunctive reading of the statute pursuant to Flanary v. Moose Coal Co., 76
O.W.C. 119 (1997), and appellant advanced a conjunctive reading of the statute pursuant to
subsequent Commission opinions. Wise resolved the claim based on the stipulations and
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statements submitted. Wise noted the conflicting interpretations and opined that the statute was
to be read in the conjunctive. And according to the medical evidence, Wise found that appellee
established that “he has coal workers’ pneumoconiosis medically determined to be a Category A
large opacity under the I.L.O. classification, that he obtained a restriction from work in a mine or
dusty environment, and that he is in fact, not presently working.” The remaining element to be
established was whether appellee demonstrated “sufficient pulmonary function loss as shown by
approved medical tests and standards to render him unable to do manual labor in a dusty
environment.” After reviewing the medical evidence, Wise concluded that appellee did not
establish such loss and denied his claim.
Appellee filed a request for review by the full Commission. The Commission ordered
appellee to file a written statement and appellant to file a responsive statement. The parties
complied, setting forth the same arguments submitted to Wise. In its review opinion, the
Commission overruled their opinions post-dating Flanary and applied the interpretation
propounded in that opinion. The Commission indicated it must adhere to the plain language of
the statute. The Commission concluded that the statute states the elements in the disjunctive
with its use of “or,” and there was no indication the legislature intended “or” to be read
conjunctively. Appellee was also required to establish that he was “instructed by competent
medical authority not to attempt to do work in any mine or dusty environment and [that] he is in
fact not working” due to the placement of the conjunctive “and” prior to that text. Therefore,
according to the Commission, to qualify for lifetime benefits under Code § 65.2-504(A)(4),
appellee must prove one of the following:
(1) he suffers from coal workers’ pneumoconiosis medically
determined to be A, B, or C under the I.L.O. classifications, and he
has been instructed not to work in a mine or dusty environment by
competent medical authority, and he is not working,
or (2) he suffers from coal workers’ pneumoconiosis involving
progressive massive fibrosis, and he has been instructed not to
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work in a mine or dusty environment by competent medical
authority, and he is not working,
or (3) there is sufficient pulmonary function loss as shown by
approved medical tests and standards to render him unable to
perform manual labor in a dusty environment, and he has been
instructed not to work in a mine or dusty environment by
competent medical authority, and he is not working.
(Emphasis added).
Considering the plain language of the statute and the unchallenged findings, the
Commission found that appellee “satisfied the requirements of [] Code § 65.2-504(A)(4).”
Accordingly, the Commission reversed the finding of Deputy Commissioner Wise and awarded
appellee permanent total disability benefits.
Now comes this appeal.
ANALYSIS
“On review on appeal, we must defer to the [C]ommission’s findings of fact if supported
by credible evidence in the record.” Diaz v. Wilderness Resort Ass’n & Liberty Mutual Ins. Co.,
56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010). “When a challenge is made to the
[C]ommission’s construction of its rules, [our] review is limited to a determination of whether
the [C]ommission’s interpretation was reasonable. The [C]ommission’s interpretation will be
accorded great deference and will not be set aside unless arbitrary or capricious.” Gallahan v.
Free Lance Star Publ’g Co., 41 Va. App. 694, 700, 589 S.E.2d 12, 15 (2003) (quoting Estate of
Kiser v. Pulaski Furniture Co., 41 Va. App. 293, 299, 584 S.E.2d 464, 467 (2003)). Regarding
issues of statutory interpretation,
“[a]lthough ‘the practical construction given to a statute by public
officials charged with its enforcement is entitled to great weight by
th[is] [C]ourt[] and in doubtful cases will be regarded as decisive,”
[S.] Spring Bed Co. v. State Corp. Comm’n, 205 Va. 272, 275, 136
S.E.2d 900, 902 (1964), “when an issue involves a pure question of
statutory interpretation, that issue does not invoke the agency’s
specialized competence but is a question of law to be decided by
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the courts.” All. to Save the Mattaponi v. Commonwealth, 270 Va.
423, 442, 621 S.E.2d 78, 88 (2005).
Diaz, 56 Va. App. at 114, 691 S.E.2d at 522.
“[T]his Court is ‘not bound by the [C]ommission’s legal analysis in this or prior cases.’”
Ragland v. Muguruza, 59 Va. App. 250, 255, 717 S.E.2d 842, 845 (2011) (quoting Peacock v.
Browning Ferris, Inc., 38 Va. App. 241, 248, 463 S.E.2d 368, 371 (2002)). “As with any
question of statutory interpretation, our primary objective is ‘to ascertain and give effect to
legislative intent,’ as expressed by the language used in the statute.” Prophet v. Bullock Corp.,
59 Va. App. 313, 316, 718 S.E.2d 477, 479 (2011) (quoting Ruby v. Cashnet, Inc., 281 Va. 604,
609, 708 S.E.2d 871, 873-74 (2011)). “When the language of a statute is unambiguous, we are
bound by the plain meaning of that language. Furthermore, we must give effect to the
legislature’s intention as expressed by the language used unless a literal interpretation would
result in a manifest absurdity.” Hammer v. D.S., 67 Va. App. 388, 399, 796 S.E.2d 454, 459
(2017) (quoting Va. Dep’t of Corr. v. Surovell, 290 Va. 255, 268, 776 S.E.2d 579, 586 (2015)).
“Language is ambiguous when it may be understood in more than one way, or simultaneously
refers to two or more things.” Halifax Corp. v. Wachovia Bank, 268 Va. 641, 653, 604 S.E.2d
403, 408 (2004) (quoting Lee-Warren v. Sch. Bd., 241 Va. 442, 445, 403 S.E.2d 691, 692
(1991)). We are “not free to add language, nor to ignore language, contained in statutes.” Id.
(quoting Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003)).
When interpreting the Act, it “is to be liberally construed for the benefit of employees.”
Gallahan, 41 Va. App. at 698, 589 S.E.2d at 14 (quoting City of Waynesboro v. Harter, 1
Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)). “That liberality, however, has its limits. We
cannot ‘permit a liberal construction to change the meaning of the statutory language or the
purpose of the Act.’” Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540
(2003) (quoting Am. Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985)).
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At issue is the interpretation of Code § 65.2-504(A)(4), a provision of the Act.
Accordingly, while we assign great weight to the Commission’s interpretation, our review is de
novo. Diaz, 56 Va. App. at 114, 691 S.E.2d at 522. Turning to the text of the statute, Code
§ 65.2-504(A)(4) states in pertinent part
An employee eligible for an award for coal worker’s
pneumoconiosis benefits shall be compensated according to the
following schedule.
....
For coal worker’s pneumoconiosis medically determined to
be A, B or C under the I.L.O. classifications or which involves
progressive massive fibrosis, or for any stage of coal worker’s
pneumoconiosis when it is accompanied by sufficient
pulmonary function loss as shown by approved medical tests
and standards to render an employee totally unable to do
manual labor in a dusty environment and the employee is
instructed by competent medical authority not to attempt to do
work in any mine or dusty environment and if he is in fact not
working, it shall be deemed that he has a permanent disability
and he shall receive 66 2/3 percent of his average weekly wage
as defined in § 65.2-101 during the three years prior to the date
of filing of the claim, up to 100 percent of the average weekly
wage of the Commonwealth as defined in § 65.2-500 for his
lifetime without limit as to the total amount.
(Emphasis added).
A plain reading of the statute justifies a disjunctive reading of the text of the statute.
“[T]he use of the disjunctive word ‘or,’ rather than the conjunctive ‘and,’ signifies the
availability of alternative choices.” Rose v. Commonwealth, 53 Va. App. 505, 514, 673 S.E.2d
489, 493 (2009) (quoting Lewis v. Commonwealth, 267 Va. 302, 314-15, 593 S.E.2d 220, 227
(2004)). Here, the legislature’s use of “or” separates the ways in which an individual may satisfy
the requirements of the statute. Our unpublished opinion in Four “O” Mining Corp. v. Deel,
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No. 0083-17-3, 2017 Va. App. LEXIS 158 (Va. Ct. App. June 27, 2017) provides additional
support:1
The absence of class A, B or C opacities and progressive massive
fibrosis, however, does not render [the claimant] ineligible for
lifetime wage benefits. A worker is still entitled to lifetime wage
benefits if he is not working and his pneumoconiosis results in
“sufficient pulmonary function loss as shown by approved medical
tests and standards to render an employee totally unable to do
manual labor in a dusty environment and the employee is
instructed by competent medical authority not to attempt to do
work in any mine or dusty environment . . . .”
Id. at *18-19 (quoting Code § 65.2-504(A)(4) and demonstrating a disjunctive reading of the
statute).
The following factual findings stand unchallenged: appellee established that he had “coal
workers’ pneumoconiosis medically determined to be a Category A large opacity under the
I.L.O. classification, he obtained the restriction from work in a mine or dusty environment . . . ,
and he was, in fact, not working.” Accordingly, appellee met his burden and is entitled to an
award of permanent total disability.
Considering the Commission’s interpretation, in its review opinion, the Commission
advanced a disjunctive interpretation of the statute, approved the interpretation set forth in
Flanary, and overruled subsequent conflicting case law. 76 O.W.C. 119 (1997). Flanary is also
instructive:
the various elements of [Code] § 65.1-56.1(A)(4) are stated in the
disjunctive and that compensation may be awarded for permanent
total disability if any one of the requirements are met. The
claimant’s evidence satisfies the requirement of showing
pneumoconiosis medically determined to be Category A, and we
affirm the finding of permanent total disability on this basis. We
also note for the record that two physicians have reported that he is
unable to perform manual labor in a dusty environment, but this
1
“Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257
n.3 (2012) (citing Rule 5A:1(f)).
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conclusion is not based on a “sufficient pulmonary function loss”
. . . and we, therefore, do not rely on it in affirming the award.
Id. at *3-4, aff’d, 27 Va. App. 201, 497 S.E.2d 912 (1998), and 257 Va. 237, 514 S.E.2d 147
(1999) (referring to a prior version of Code § 65.2-504(A)(4)).
Appellant, on the other hand, would have us read the statute conjunctively. This amounts
to appellant asking that we change the word “or” to “and.” We recognize that “[whenever] it is
necessary to effectuate the obvious intention of the legislature, disjunctive words may be
construed as conjunctive, and vice versa.” Indus. Dev. Auth. v. La France Cleaners & Laundry
Corp., 216 Va. 277, 280, 271 S.E.2d 879, 882 (1975) (quoting S. E. Pub. Serv. Corp. v.
Commonwealth, 165 Va. 116, 112, 181 S.E. 448, 450 (1935)). There is nothing to suggest that
the legislature’s “obvious intention” was for this Court to read the statute conjunctively.
Accordingly, because the language of the statute is unambiguous, we are bound by its plain
meaning. Hammer, 67 Va. App. at 399, 796 S.E.2d at 459.
CONCLUSION
In light of our de novo review and recognizing the great weight placed on the
Commission’s interpretation of Code § 65.2-504(A)(4), we find that based upon the plain
language of the statute, the correct interpretation of Code § 65.2-504(A)(4) is in the disjunctive.
Accordingly, appellee sustained his evidentiary burden. Thus, we affirm the Commission’s
award of permanent total disability.
Affirmed.
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