Dominion Coal Corp. v. Thomas Milton Roberts ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
DOMINION COAL CORPORATION
AND
JEWELL RESOURCES CORPORATION
v. Record No. 2063-95-3 MEMORANDUM OPINION *
PER CURIAM
THOMAS MILTON ROBERTS MARCH 5, 1996
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(S. T. Mullins; Street, Street, Street, Scott &
Bowman, on brief), for appellants.
(Thomas Milton Roberts, pro se, on brief).
Dominion Coal Corporation and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that the applicable
statute of limitations did not bar the commission from
considering Thomas Milton Roberts' claim. The claim was filed on
February 17, 1995, alleging an occupational disease of coal
workers' pneumoconiosis. Employer argues that claimant received
communications of an occupational disease when he signed waivers
in 1974 and 1979, which began the running of the applicable
limitations period. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Code § 65.2-406(A)(1) provides that a claim for compensation
for coal workers' pneumoconiosis is forever barred unless it is
filed within "three years after a diagnosis of the disease, as a
category 1/0 or greater as classified under . . ., is first
communicated to the employee or within five years from the date
of the last injurious exposure in employment, whichever occurs
first."
In rejecting employer's argument, the commission ruled that
claimant's testimony that he signed two previous waivers, in
itself, did not establish a communication, nor act as a time
bar. 1 In so ruling, the commission stated that, "[o]nly a waiver
for pneumoconiosis, approved by the Commission, would work to
begin the running of the statute of limitations."
If and when a diagnosis of an occupational disease is
communicated to a claimant it is a finding of fact. See
Roller v. Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323,
326 (1989). Upon appellate review, the findings of fact made by
the commission will be upheld when supported by credible
evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989).
No evidence proved that any qualified physician in 1974 or
1979 communicated a diagnosis of coal workers' pneumoconiosis of
a category 1/0 or greater to claimant. Although claimant
1
No evidence showed that any waivers had ever been filed
with the commission.
2
testified in general terms that he signed waivers, he denied that
he was ever told or knew that he suffered from pneumoconiosis
before May 1994. Rather, he stated that, in 1979, the doctor
told him he had lung cancer. However, no evidence showed that
claimant was ever told or knew that this disease arose out of and
in the course of his employment. The uncontradicted medical
evidence showed that claimant first received a communication of
coal workers' pneumoconiosis in May 1994, when his chest x-ray
was read as positive for category one coal workers'
pneumoconiosis. This evidence is credible, and it supports the
commission's finding.
Based upon this record, we cannot find as a matter of law
that the commission erred in holding that claimant's February 17,
1995 application was not barred by the applicable statute of
limitations.
Accordingly, we affirm the commission's decision.
Affirmed.
3