Har-Lee Coal Company v. Paul Evans Mullins ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and McClanahan
Argued at Salem, Virginia
HAR-LEE COAL COMPANY AND
AMERICAN INTERNATIONAL SOUTH
INSURANCE COMPANY MEMORANDUM OPINION∗ BY
JUDGE ELIZABETH A. McCLANAHAN
v. Record No. 0959-04-3 NOVEMBER 9, 2004
PAUL EVANS MULLINS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Sarah Y. M. Kirby; Sands Anderson Marks &
Miller, on briefs), for appellants.
Kerry S. Hay (Paul L. Phipps; Lee & Phipps, P.C., on brief), for
appellee.
Har-Lee Coal Company appeals a decision by the Workers’ Compensation Commission
finding that Paul Mullins (claimant) suffered from compensable first-stage pneumoconiosis.
Har-Lee complains that the commission erred by: (1) holding claimant met his burden of
proving he suffers from first-stage pneumoconiosis; (2) concluding that the physicians who
found that claimant had abnormalities consistent with pneumoconiosis were qualified to read
claimant’s x-ray; (3) giving greater weight to the x-ray interpretations of the doctors who found
that claimant had abnormalities consistent with pneumoconiosis; (4) failing to hold that the
evidence was in equipoise and that claimant was bound by the pulmonary committee’s decision;
(5) denying Har-Lee’s motion to vacate the review opinion and remand for further proceedings;
(6) violating Har-Lee’s right to due process by retroactively applying reasoning from a case
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
issued after the decision of the deputy commissioner; and (7) working an imposition upon
Har-Lee. For the reasons below, we affirm the commission’s decision.
I. Background
On appeal from a decision from the commission, “we view the evidence in the light most
favorable to the party prevailing below” and grant that party the benefit of all reasonable
inferences. Tomes v. James City (County of) Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312,
315 (2002) (citing R.G. Moore Building Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990)); Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002);
Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997). On February 6,
2003, Paul E. Mullins filed a claim for benefits with the Virginia Workers’ Compensation
Commission. Along with his claim for benefits, Mullins filed three “B” pneumoconiosis
readings of his chest x-ray, which were performed by Drs. Radebaugh, Foreman, and
Ramakrishman.
Drs. Radebaugh and Foreman determined that the x-ray had a category 1 quality and that
it revealed abnormalities consistent with pneumoconiosis.1 Dr. Ramakrishman determined that
the x-ray had a category 2 quality and that it revealed abnormalities consistent with
pneumoconiosis. Mullins received a letter from Dr. Edward Petsonk, a team leader with the
National Institute for Occupational Safety and Health (NIOSH) Division of Respiratory Disease
Studies, explaining that the physicians who read Mullins’ x-ray had taken classes and/or exams
on how to recognize and classify pneumoconiosis on chest x-rays.
1
According to the NIOSH roentgenographic interpretation form, the quality of an x-ray
film is classified according to its readability: a category 1 x-ray signifies the film is original; a
category 2 x-ray indicates the film is a copy; a category 3 x-ray denotes the film is an
under/overexposed copy or has other imperfections. The film may also be categorized as “U/R,”
or unreadable.
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Following Mullins’ disability claim, Har-Lee Coal Company hired three “B” readers to
review a copy of Mullins’ x-ray. Drs. Wheeler, Scott, and Scatarige identified the x-ray as
having a category 3 quality and concluded that it revealed no abnormalities consistent with
pneumoconiosis.
While the claim was before the deputy commissioner, a copy of Mullins’ x-ray was sent
to the pulmonary committee. The pulmonary committee declined to interpret the film, noting
that it was a copy and, therefore, unreadable. The deputy commissioner denied Mullins’ claims
on the basis that he failed to prove by a preponderance of the evidence that he had a compensable
level of pneumoconiosis. Mullins requested a review of the deputy commissioner’s opinion.
The commission reversed the deputy commissioner’s decision and awarded benefits.
II. Analysis
Har-Lee argues that Mullins produced no credible evidence to show that the three doctors
who read his x-ray and found abnormalities consistent with pneumoconiosis were qualified to
render such opinions. “Factual findings by the commission that are supported by credible
evidence are conclusive and binding upon this Court on appeal.” So. Iron Works, Inc. v.
Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). Mullins’ evidence that the three
doctors interpreting his x-ray were qualified included a letter written by Dr. Edward Petsonk, a
team leader with the NIOSH Division of Respiratory Disease Studies. The letter from
Dr. Petsonk was sent to Mullins, and noted that “[e]ach chest x-ray is evaluated by doctors who
have taken a special course on how to recognize and classify pneumoconiosis on chest x-rays (A
reader) and/or who have passed a test showing that he or she can accurately classify chest x-rays
with pneumoconiosis (B reader).” In addition, each of the doctors’ roentgenographic
interpretation (x-ray reading) reports specified that a “B” reading was made, which was indicated
by an “x” marked over the “B” box under “type of reading.” The commission can draw a
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reasonable inference from such evidence that a “B” reader made the reading. Based on this
evidence, the commission concluded, “these doctors were qualified to render opinions as
physicians evaluating the claimant’s x-ray for the National Institute for Occupational Safety and
Health.” The commission’s findings, if supported by credible evidence or reasonable inferences
drawn from the evidence, will not be disturbed upon review, even though the record may contain
evidence to support a contrary finding. Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App.
276, 279, 348 S.E.2d 876, 877 (1986).
Har-Lee next argues that the commission erred in giving greater weight to the two
doctors who observed a quality 1 x-ray over the three physicians hired by appellant who
observed quality 3 x-rays.
We do not retry the facts before the commission, nor do we review
the weight, preponderance of the evidence, or the credibility of
witnesses. If there is evidence or a reasonable inference that can
be drawn from the evidence to support the [c]ommission’s finding,
they will not be disturbed by this court on appeal.
Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334 S.E.2d 592, 595 (1985) (citation
omitted); see also Kim v. Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990).
The commission considered the x-ray interpretations of six physicians. It gave greater
weight to the two doctors who interpreted an original, category 1, x-ray, stating, “[w]e conclude
that these doctors were qualified to render opinions as physicians evaluating the claimant’s
x-ray . . . [m]oreover, we are more persuaded by their opinions than by the opinions of the other
doctors who offered opinions in this case – who reviewed a copy of the claimant’s x-ray.” See
Riley v. Consolidation Coal Co., VWC File No. 196-94-41 (November 16, 2000) (“[T]he
Commission does not consider copies of x-rays as worthy of interpretation for evidentiary
purposes in pneumoconiosis cases, and we generally give little weight to the interpretations of
such technically inferior radiographs.”). Medical evidence is subject to the commission’s
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consideration and weighing. Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Therefore, the commission has the authority to give greater weight to
interpretations based on higher quality x-rays. The commission’s findings, if supported by
credible evidence or reasonable inferences drawn from the evidence, will not be disturbed upon
review, even though the record may contain evidence to support a contrary finding. Morris, 3
Va. App. at 279, 348 S.E.2d at 877.
Har-Lee next argues that the commission erred by failing to find that claimant was bound
by the pulmonary committee’s decision. Har-Lee argues that the claimant stipulated that he
would be bound by the decision of the pulmonary committee and that, because the pulmonary
committee found claimant’s x-ray unreadable and refused to interpret the x-ray, claimant was
ultimately left without any evidence to prove his burden showing that he had pneumoconiosis.
Har-Lee’s only evidence of the purported agreement consists of a written statement it submitted
to the commission. In that statement, and on appeal, Har-Lee contends that, because claimant
did not object to or correct an assertion Har-Lee made in a letter to the commission stating that
claimant so agreed to be bound, claimant admits that he was bound. However, “[a]n appellate
court must dispose of the case upon the record and cannot base its decision upon appellant’s
petition or brief, or statements of counsel in open court. We may act only upon facts contained
in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (citing
Riddick v. Commonwealth, 135 Va. 724, 726, 115 S.E. 523, 524 (1923)). There is no evidence
in the record that shows that claimant agreed to be bound to the pulmonary committee’s
interpretation.
Har-Lee also argues that the commission violated its due process rights by retroactively
applying reasoning from Clark v. El Paso Coal, VWC File No. 212-63-00 (December 31, 2003),
to this case. This argument is without merit. Even if the practice of denying a claimant’s claim
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in the face of competing x-ray interpretations and a refusal by the pulmonary committee to read
the x-ray is a long-standing practice, the concept that the commission may give greater weight to
interpretations based on original x-rays than to interpretations based on copies of x-rays did not
originate with the Clark decision. Clark cites the Riley decision, VWC File No. 196-94-41
(November 16, 2000), for that very proposition. See also Stoots v. Great Barrier Insulation Co.,
71 O.W.C. 178 (1992) (holding that a fact finder may consider the quality of the material
reviewed when weighing the credibility of the evidence). The commission in Riley noted that it
“does not consider copies of x-rays as worthy of interpretation for evidentiary purposes in
pneumoconiosis cases, and we generally give little weight to the interpretations of such
technically inferior radiographs.” Riley was decided in November 2000. Thus, the reasoning in
Clark is not novel. Har-Lee was on notice that the commission could assign less weight to
interpretations based on copies of x-rays than interpretations based on original x-rays.
Finally, Har-Lee argues that by applying the novel reasoning in Clark to this case, the
commission has retroactively altered a long-standing practice, which appellant relied upon to its
detriment, and that the doctrine of imposition should apply to the case at bar. As we stated
above, the reasoning used in Clark was not novel, and certainly not a basis for applying the
doctrine of imposition.
III. Conclusion
The commission’s finding that claimant met his burden of proof is supported by credible
evidence and reasonable inferences drawn from the evidence and, therefore, will not be disturbed
upon review. Har-Lee’s due process rights were not violated, and, thus, the commission did not
err in denying the motion to vacate the review opinion and remand the case for further
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proceedings. The doctrine of imposition does not apply. Accordingly, we affirm the decision of
the commission.
Affirmed.
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