COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee* and Kelsey
Argued at Salem, Virginia
CLINCHFIELD COAL COMPANY
OPINION BY
v. Record No. 1727-02-3 JUDGE D. ARTHUR KELSEY
MARCH 11, 2003
FARRELL D. REED
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Timothy W. Gresham (J. Jasen Eige;
Lisa Frisina Clement; Penn, Stuart &
Eskridge, on brief), for appellant.
Susan D. Oglebay for appellee.
The Virginia Workers' Compensation Commission awarded Farrell
D. Reed medical benefits for coal workers' pneumoconiosis (CWP)
pursuant to our decision in Jones v. E.I Dupont de Nemours & Co.,
24 Va. App. 36, 480 S.E.2d 129 (1997). The appellant, Clinchfield
Coal Company, appeals this award urging us to reverse Jones.
Short of that, Clinchfield argues that we should limit Jones to
cases involving asbestosis and not apply it to claimants with CWP.
Finally, Clinchfield asserts that the medical evidence fails as a
matter of law to demonstrate that Reed has CWP at this time.
We affirm the commission and hold that (i) we have no
authority to revisit Jones, (ii) both the rationale and the
____________________
* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
holding of Jones govern CWP as well as asbestosis, and (iii) the
commission did not err in finding that Reed has CWP.
I.
On appeal, "we view the evidence in the light most favorable
to the prevailing party" before the commission. Tomes v. James
City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315
(2002); Grayson County Sch. Bd. v. Cornett, 39 Va. App. 279, 281,
572 S.E.2d 505, 506 (2002).
Dr. Kathleen DePonte diagnosed Reed with CWP (sometimes known
as black lung disease) on April 6, 2001. "Coal worker's
pneumoconiosis is a disease of the lung that results from the
accumulation of coal dust in the lungs." Penley v. Island Creek
Coal Co., 8 Va. App. 310, 312, 381 S.E.2d 231, 233 (1989). On
April 13, 2001, Reed filed an occupational disease claim seeking
benefits for the disease.
Clinchfield conceded Dr. DePonte's communication of diagnosis
and stipulated that Reed was "last injuriously exposed to the
hazards of coal dust while working" for Clinchfield. Reed, in
turn, agreed to be bound by the diagnostic findings of The Medical
College of Virginia Occupational/Pulmonary Committee (the
"pulmonary committee"). See Va. Work. Comp. R. 10.2 & 10.3.
The deputy commissioner found "from the opinion expressed by
the pulmonary committee that claimant has less than a category one
level of the disease and is therefore not entitled to weekly
benefits." The deputy commissioner, however, noted "the pulmonary
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committee advised that claimant does have evidence of the disease
and that he has small opacities classified as qq in the four upper
lung zones with a profusion of 0/1." Since there was "no contrary
medical opinion of record," the deputy commissioner held, on the
basis of Jones, that Reed was entitled to a medical award.
Clinchfield requested review by the full commission, which
affirmed the deputy commissioner's award.
II.
Though we defer to the commission in its role as fact finder,
we "review questions of law de novo," Rusty's Welding Serv., Inc.
v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999), and
do not consider ourselves "bound by the legal determinations made
by the commission." Grayson County Sch. Bd., 39 Va. App. at 281,
572 S.E.2d at 506 (quoting Robinson v. Salvation Army, 20 Va. App.
570, 572, 459 S.E.2d 103, 104 (1995)); see also Sturtz v.
Chesapeake Corp., 38 Va. App. 672, 675, 568 S.E.2d 381, 383
(2002). Even so, with regard to the commission's interpretation
of its enabling statutes, "we follow the settled rule that the
construction accorded a statute by public officials charged with
its administration is entitled to be given weight by the courts."
Sturtz, 38 Va. App. at 675, 568 S.E.2d at 383.
The Virginia Workers' Compensation Act should be regarded as
"remedial legislation and should be liberally construed in favor
of the injured employee." E.I. du Pont de Nemours & Co. v.
Eggleston, 264 Va. 13, 17, 563 S.E.2d 685, 687 (2002) (citing Byrd
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v. Stonega Coke & Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729
(1944)). 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." American Furniture
Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).
III.
A.
Clinchfield first urges us to overrule Jones v. E.I Dupont de
Nemours & Co., 24 Va. App. 36, 480 S.E.2d 129 (1997). Under our
rule of interpanel accord, however, we lack the authority to
revisit Jones. See Commonwealth v. Burns, 240 Va. 171, 174, 395
S.E.2d 456, 457 (1990) (quoting Selected Risks Ins. Co. v. Dean,
233 Va. 260, 265, 355 S.E.2d 579, 581 (1987)). The decision of
one panel "becomes a predicate for application of the doctrine of
stare decisis" and cannot be overruled except by the Court of
Appeals sitting en banc or by the Virginia Supreme Court. Johnson
v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996).
This principle applies not merely to the literal holding of the
case, but also to its ratio decidendi —— the essential rationale
in the case that determines the judgment. For this reason, we
reject Clinchfield's request that Jones be overruled.
B.
Clinchfield next argues that Jones does not apply to cases
involving medical benefits for CWP. On this point, Clinchfield
appears to divide the fact-specific holding of Jones from its
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ratio decidendi —— urging that only the former, but not the
latter, has stare decisis weight. We do not accept this
segmentation of Jones, finding its rationale and result equally
applicable to this case.
Jones addressed the question whether an employee with
asbestosis was entitled to medical benefits even though the
disease had not risen to the level of a "permanent loss" under
Code § 65.2-503. The employer argued that an occupational disease
which "has not reached a ratable level under Code § 65.2-503 is
not a compensable occupational disease and renders the claimant
ineligible for any benefits under the Act." Jones, 24 Va. App. at
38, 480 S.E.2d at 130.
Jones rejected the employer's argument, ruling that "[s]imply
because the disease fails to rise to the level of a permanent loss
on the schedule of Code § 65.2-503 does not automatically preclude
an award of medical benefits." Id. Instead, "Code § 65.2-403
allows an award of medical benefits to employees who have an
occupational disease covered by the Act." Id. After reviewing
the "statutory language and the factual findings of the
commission," Jones found that the employee's condition fell
"within the definition of an occupational disease." Id. Under
this analysis, "whether a permanent loss compensable under Code
§ 65.2-503 accompanies the disease has no impact upon an award
under Code § 65.2-403." Id. The employee in Jones, therefore,
was "entitled to medical benefits under Code § 65.2-403." Id.
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Jones relies on the plain language of Code § 65.2-403(B),
which states that an "employee who has an occupational disease
that is covered by this title shall be entitled to the same
hospital, medical and miscellaneous benefits as an employee who
has a compensable injury by accident." Jones, 24 Va. App. at 38,
480 S.E.2d at 130. Nothing in Code § 65.2-403(B) requires that
the occupational disease qualify for permanent loss or disability
compensation before medical benefits may be awarded. Under Code
§ 65.2-403(B), the sole inquiry is whether the disease qualifies
as an "occupational disease that is covered by this title" —— if
so, medical benefits may be awarded. 1
Jones equates occupational diseases to injuries by accident
for purposes of medical benefits. By doing so, Jones recognizes
that both sets of conditions can give rise to two unique
1
Clinchfield cites dicta in Parris v. Appalachian Power
Co., 2 Va. App. 219, 343 S.E.2d 455 (1986), to support its
argument that "occupational diseases are not per se
compensable." This language was taken from a headnote in Long
v. W. Va. Pulp & Paper Co., 46 O.I.C. 140, 141 (1964), and was
unnecessary to our decision in Parris regarding whether the
statute of limitations had run on a workers' compensation claim.
Moreover, Long, the opinion underlying the Parris dicta, decided
only the issue whether the claimant was entitled to wage
compensation —— it made no rulings regarding medical benefits.
Clinchfield also cites Merrimac Anthracite Coal Corp. v.
Showalter, 158 Va. 227, 163 S.E. 73 (1932), for the proposition
that "in a case of injury by accident, a medical award cannot be
issued unless the claimant suffered a compensable injury by
accident." In Merrimac, however, the claimant was denied not
only medical benefits, but all benefits because the "injury was
the result of his wilful [sic] misconduct . . . ." The Act,
therefore, expressly barred the claimant from receiving any
compensation at all. Merrimac does not distinguish medical
benefits from wage and disability compensation.
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categories of benefits. See generally Arthur Larson & Lex K.
Larson, Larson's Workers' Compensation Law § 57.10 (1999). The
first category of benefits consists of "wage loss payments based
on the concept of disability." Id. The second category consists
of the "payment of hospital and medical expenses occasioned by any
work-connected injury, regardless of wage loss or disability."
Id. (emphasis added). 2
We disagree with Clinchfield that, for purposes of medical
benefits under Jones, CWP should be treated differently than
asbestosis. It is true that the Act often distinguishes between
the two. See, e.g., Code § 65.2-405 (notice provisions); Code
§ 65.2-406 (limitations); Code §§ 65.2-503 and 65.2-504 (permanent
loss and disability). But on the critical point —— medical
benefits —— Code § 65.2-403(B) makes no distinction between them.
2
Our application of Jones to occupational injuries tracks
similar rulings from other state courts. See, e.g., J.T. Thorp,
Inc. v. Worker's Comp. Appeals Bd., 153 Cal. App. 3d 327, 1984
Cal. App. LEXIS 1782 (1984) ("[A]n employee suffering from
asbestosis may obtain reimbursement for predisability medical
expenses."); Roberson v. Harford Accident & Indem. Co., 234 S.E.2d
145 (Ga. Ct. App. 1977) (there is "no inconsistency" in directing
the payment of medical expenses while denying other compensation
benefits); Shepherd v. The Gas Serv. Co., 352 P.2d 48 (Kan. 1960)
("An award providing for the payment of certain medical treatment
and care . . . is an award of compensation" and employees are
entitled to such benefit even if the injury does not warrant loss
of wage or disability compensation.); In re Ryciak, 186 N.E.2d 408
(N.Y. 1962) (holding that an employee may be awarded costs for
medical treatment arising from an occupational disease before any
loss of wages accrues); In re Finch, 761 P.2d 544 (Or. App. 1988)
(holding that diagnostic medical services are compensable even
though the occupational disease warrants no other compensation).
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Moreover, as the commission noted, "pneumoconiosis is a
generic term used to describe a chronic fibrous reaction in the
lungs related to the inhalation of dust, and includes asbestosis,
silicosis, byssiniosis, coal worker's pneumoconiosis and
siderosis." As the commission further noted, "Asbestosis is but
one of the several occupationally-induced pneumoconioses for which
workers' compensation benefits, including medical benefits, are
available." Like other pneumoconioses, the Act treats asbestosis
and CWP substantially alike when measuring the progressive
"stages" of the diseases. See Code §§ 65.2-503, 65.2-504; Va.
Work. Comp. R. 11. The rationale of Jones, therefore, applies
equally to CWP as well as to asbestosis.
C.
Clinchfield also argues that, even if Code § 65.2-403
authorizes medical benefits in the absence of a compensable
occupational disease, the claimant must still prove he has a
disease in the first place. As Clinchfield sees it, Reed's
condition cannot be treated as a "disease" because the pulmonary
committee rated his radiographs as category 0/1 as defined by the
Guidelines for the Use of ILO International Classification of
Radiographs of Pneumoconioses, ILO Occup. Safety and Health Ser.
No. 22 (rev. ed. 1980). That rating, Clinchfield asserts, means
that no recognizable CWP can exist as a matter of law.
Clinchfield bases its argument predominantly on a chart
contained in a law review article written by a physician. See N.
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LeRoy Lapp, A Lawyer's Medical Guide to Black Lung Litigation, 83
W. Va. L. Rev. 721, 729-31 (1981). The chart, reproduced below,
purports to divide the ILO categories into two diagnostic subsets:
"No Pneumoconiosis" and "Definite Pneumoconiosis."
0/- 0/0 0/1 1/0 1/1 1/2 2/1 2/2 2/3 3/2 3/3 3/4
Category 0 Category 1 Category 2 Category 3
No
Definite Pneumoconiosis
Pneumoconiosis
We published this chart in Penley, 8 Va. App. at 312, 381 S.E.2d
at 233, as a part of a general description of the "radiology of
coal worker's pneumoconiosis." Though we treated the chart as
informative, neither our holding in Penley nor its rationale
turned on the line drawn between the "No Pneumoconiosis" and the
"Definite Pneumoconiosis" subsets separating ILO category 0 from
categories 1, 2, and 3. 3 Whether such a categorical line exists,
therefore, merits closer scrutiny.
3
In Penley, the claimant appealed the commission's denial
of permanent partial disability benefits under Code § 65.1-56.1
(now Code § 65.2-504). Penley analyzed the issue whether the
disease qualified for disability benefits under Code
§ 65.2-504's precursor, which expressly required that the
disease be at least stage one, as opposed to § 65.2-403, which
contains no such requirement.
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Our analysis begins with Code § 65.2-403(B), which Jones held
authorizes medical benefits when the claimant's disease qualifies
as an "occupational disease that is covered by this title." 4 We
agree with Clinchfield that the 1980 ILO Guidelines play a
valuable role in determining whether the disease of CWP exists.
To be sure, the three statutory "stages" employed by Code
§§ 65.503(B) and 65.2-504(A) incorporate by reference the 1980 ILO
Guidelines. See also Va. Work. Comp. R. 11 (table converting
multiple ILO "categories" to one of three statutory "stages"). 5
The principal purpose of the 1980 ILO Guidelines, however, is to
provide "a means for recording systematically the radiographic
abnormalities in the chest provoked by the inhalation of dusts."
1980 ILO Guidelines at 1. The ILO Guidelines do not "define
pathological entities," id., or serve as an inflexible matrix for
pinpointing the moment a nascent condition develops into a
diagnosable lung disease.
We reject Clinchfield's argument that, under ILO
interpretative principles, Reed's 0/1 profusion rating
4
Code § 65.2-400 defines an "occupational disease"
generally, but provides no criteria for diagnosing specific
diseases.
5
Under the commission's rating table, the profusion level
of opacities for any pneumoconiosis must be at least an ILO
category 1/0 to qualify for any staging level under the Act.
None of the three statutory stages corresponds to an ILO
category 0/-, or 0/0, or 0/1. See Va. Work. Comp. R. 11
(conversion table).
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disqualifies him as a matter of law from receiving a CWP
diagnosis. 6 That rating does not, standing alone, disprove the
existence of CWP. Under the ILO Guidelines, if the pulmonary
committee had concluded that the appearances were "definitely not
pneumoconiosis," id. at 3, no profusion rating would have been
assigned at all and the committee would have relied only on the
Symbols and Comments sections of the ILO Form. Symbols denote
alternative diagnoses such as cancer, emphysema, fractured ribs,
tuberculosis, and the like. Id. at 9-10. "Comments must be
recorded about appearances which are definitely or probably not
pneumoconiosis." Id. at 12. In addition, the pulmonary committee
noted that the size and shape of Reed's small, rounded opacities
fit within the "q" level, denoting sizes between 1.5 and 3
millimeters. Id. at 6. For these reasons, we hold that the
commission had before it credible medical evidence that Reed
suffered from CWP.
IV.
In sum, we have no authority to revisit Jones. Both the
rationale and the holding of Jones apply to CWP just as much as
6
The 1980 ILO Guidelines set forth four major profusion
categories (0, 1, 2, and 3), each with three subcategories. They
thereby create twelve discrete subcategories each containing a
numerator indicating the actual or final classification and a
denominator indicating any other category, if any, seriously
considered by the individual reviewing the radiograph. A category
"0" profusion level (which includes 0/-, 0/0, and 0/1) can be used
to indicate that small opacities are "absent" or that small
opacities exist but are "less profuse than the lower limit of
category 1." ILO Guidelines at 4.
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they do to asbestosis. Under Jones, the commission had sufficient
evidence to conclude that Reed has CWP, an occupational disease
warranting medical benefits under Code § 65.2-403(B).
Affirmed.
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