Town of Bluefield v. Jack W. Asbury ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
TOWN OF BLUEFIELD
AND
VML INSURANCE PROGRAMS MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0755-96-3 AUGUST 27, 1996
JACK W. ASBURY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John P. Grove; Elizabeth K. Dillon; Woods,
Rogers & Hazlegrove, on briefs), for
appellants.
(Frederick W. Harman; Jack S. Hurley, Jr.;
Dudley, Galumbeck & Simmons, on brief), for
appellee.
Town of Bluefield 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 Jack W.
Asbury's ("claimant") claim for compensation related to an
occupational disease. Claimant filed his claim on July 25, 1995,
alleging an occupational disease of coronary artery disease and
seeking compensation benefits beginning May 25, 1994 and medical
benefits. Employer argues that claimant received communication
of an occupational disease in 1992 when Dr. Seif Martini, a
cardiologist, advised claimant that he suffered from coronary
artery disease. Upon reviewing the record and the briefs of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
Code § 65.2-406(A)(5) required claimant to file his claim
within two years after he received a diagnosis of his disease.
This code section
does not require that an employee receive
from a physician a communication that his
disease is work-related; rather, the statute
only requires that the employee,
simultaneously with or sometime after the
diagnosis of his condition, learn that the
condition is an occupational disease for
which compensation may be awarded.
City of Alexandria v. Cronin, 20 Va. App. 503, 508-09, 458 S.E.2d
314, 317 (1995), aff'd, ___ Va. ___, 471 S.E.2d 184 (1996).
In rejecting employer's argument, the commission found:
The claimant was informed in 1992 by his
doctor that he had heart disease. However,
the doctor did not tell him at that time that
the condition was work-related despite the
claimant's question in that regard. Nor did
the employer advise the claimant that he had
a compensable condition. The only evidence
suggesting a 1992 diagnosis was the doctor's
officer manager's letter to the Commission
stating that the claimant did not have a
compensable condition. Under these
circumstances, we do not find that the
claimant was informed prior to 1994 that his
heart disease is work-related.
If and when a diagnosis of an occupational disease is
communicated to a claimant is a finding of fact. See Roller v.
Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989).
On appeal, findings of fact made by the commission will be
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upheld when supported by credible evidence. James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
Here, evidence showed that claimant received a diagnosis of
coronary artery disease in 1992 from Dr. Martini; however, no
evidence showed that claimant knew that his disease was
work-related before May 25, 1994. While claimant may have
suspected in 1992 that his employment may have caused his
condition and he questioned Dr. Martini regarding this matter,
Dr. Martini specifically denied that claimant's condition was
work-related. A July 1992 letter from Dr. Martini's officer
manager to the commission contained a statement that claimant's
disease was not compensable. In light of this undisputed
evidence, claimant's suspicions, if they existed in 1992, that
his disease was work-related, were not sufficient to constitute a
communication of an occupational disease. Unlike the facts in
Cronin, no evidence in this case proved that any physician ever
told claimant he suffered from a work-related disease or that he
knew that his disease arose out of and in the course of his
employment before May 25, 1994. See Cronin, 20 Va. App. at
509-10, 458 S.E.2d at 317. Thus, based upon this record, we
cannot find as a matter of law that the commission erred in
holding that claimant's July 25, 1995 application was not barred
by the applicable statute of limitations.
Accordingly, we affirm the commission's decision.
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Affirmed.
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