Kenneth R. Owens v. York Co. Fire & Rescue

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

KENNETH R. OWENS
OPINION BY
v. Record No. 1898-01-4 JUDGE ROBERT P. FRANK
MAY 28, 2002
YORK (COUNTY OF) FIRE AND RESCUE AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael A. Kernbach (Burgess, Locklin,
Kernbach & Perigard, on brief), for
appellant.

Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Whitt & Associates, on brief), for appellees.

Kenneth R. Owens (claimant) appeals a decision of the

Workers' Compensation Commission (commission) denying him

benefits under Code § 65.2-402(B). Claimant contends the

commission erred when it found his claim did not meet the

requirements of Code § 65.2-406 because he filed the claim more

than two years after he received a diagnosis of an occupational

disease. For the reasons stated, we affirm the decision of the

commission.

BACKGROUND

Claimant began working for the York County Fire and Rescue

Department in 1973. Claimant remained employed with the Fire

and Rescue Department until 1999. He filed a claim for benefits
on October 21, 1999, alleging he had contracted an occupational

disease, hypertension.

As part of his employment, claimant was required to have a

medical examination once a year. Dr. John D. Hollingsworth

conducted the 1995 examination. At that time, claimant had a

blood pressure reading of 190/100. He was diagnosed with

"hypertension, stage II." Dr. Hollingsworth placed claimant on

hypertension medicine, indicating he would discuss treadmill

tests with the fire chief "before this patient can be cleared

for the Fire Department."

On January 23, 1996, Dr. Bryant examined claimant.

Dr. Bryant confirmed Dr. Hollingsworth's diagnosis of

"hypertension" and again prescribed hypertension medication.

Claimant's blood pressure was 221/110.

Claimant saw Dr. Bryant again on January 25, 1996, and

reported he had stopped taking his blood pressure medication

because he was "feeling wonderful." At that appointment, his

blood pressure was 200/112. Dr. Bryant recommended the same

hypertension medication, but at an increased dosage, and advised

claimant "he would not be able to work if the [blood pressure]

was not well controlled." Dr. Bryant listed claimant's primary

problem as "severe hypertension with poor compliance."

Claimant received follow up treatments for hypertension and

related illnesses with Dr. Bryant on February 2, 1996, February

8, 1996, March 5, 1996, May 29, 1996, and February 25, 1997.

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 Claimant returned to Dr. Bryant on January 13, 1998. At

that appointment, his blood pressure readings were 240/136,

226/122 and 210/118. He indicated he had not taken his

hypertension medication for months. Again, the doctor diagnosed

severe hypertension. Dr. Bryant also had a "[l]engthy

discussion with [claimant] on the importance of compliance with

[medications], diet and exercise."

Claimant testified that prior to his January 13, 1998

appointment with Dr. Bryant, he never received a diagnosis or

information from any source, including Dr. Bryant, that he was

suffering from hypertension. When questioned regarding

Dr. Bryant's report that he advised claimant in 1996 and 1997

that he had hypertension, claimant denied he was ever told about

this disease during that period. Claimant testified he did not

understand he was suffering from hypertension until January

1998, when Dr. Bryant allegedly told him that his hypertension

was caused by his work at the fire department and that claimant

needed to retire. 1

During his employment with the fire department, claimant

had been president of his local union. He worked with the

International Association of Firefighters and the Virginia

Professional Firefighters developing legislation on presumptive

1
The parties agree that Dr. Bryant never causally related
claimant's hypertension to his work before January 1998.

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occupational disease claims. Claimant testified he was aware,

prior to January 1998, that he was afforded special workers'

compensation coverage for the disease of hypertension. Claimant

acknowledged he had known for at least fifteen years that

hypertension "is a condition that's covered under the

presumption under Workers' [Compensation Act] that you as a

firefighter would be entitled to."

Claimant further testified he would have filed a claim

prior to January of 1998 for hypertension "had [he] been told

[he] had it." Claimant also admitted he knew "hypertension was

high blood pressure" and acknowledged he had taken medication

for the disease for approximately five years.

Dr. Bryant testified he informed claimant that he had

hypertension in early 1996. Dr. Bryant indicated that he may

have used the phrase "high blood pressure" to describe

hypertension, but this phrasing would not have suddenly changed

in 1998 when claimant alleges he first learned he had

hypertension. The phraseology Dr. Bryant used in discussing his

diagnosis with claimant in 1996 would have been the same in

1998.

Dr. Bryant further testified he believed claimant was aware

he had hypertension or high blood pressure in January 1996. The

doctor also stated claimant told him in 1996 that he checked his

blood pressure himself periodically.

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 The deputy commissioner, noting the medical records

indicated claimant was diagnosed with hypertension as early as

January 11, 1995, ruled the claim barred by the statute of

limitations. The full commission affirmed the deputy

commissioner's ruling.

ANALYSIS

Claimant argues the filing of his claim fell within the

statutory two-year period established by Code § 65.2-406. Code

§ 65.2-406(A) states, in part:

The right to compensation under this chapter
shall be forever barred unless a claim is
filed with the commission within one of the
following time periods:

* * * * * * *
5. For all other occupational diseases
[including hypertension], two years after a
diagnosis of the disease is first
communicated to the employee or within five
years from the date of the last injurious
exposure in employment, whichever first
occurs.

This filing requirement is jurisdictional. Hawks v. Henrico

County Sch. Bd., 7 Va. App. 398, 401, 374 S.E.2d 695, 696

(1988); Musick v. Codell Constr. Co., 4 Va. App. 471, 473, 358

S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co.,

214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "Moreover, the

burden is upon the claimant to prove compliance with the

statute." Hawks, 7 Va. App. at 401, 374 S.E.2d at 697.

"Whether a diagnosis of an occupational disease was

communicated and when the communication occurred are factual

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determinations to be made by the commission upon the evidence.

Upon appellate review, the findings of fact made by the

commission will be upheld when supported by credible evidence."

Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484

S.E.2d 140, 144 (1997) (citations omitted), aff'd on other

grounds, 255 Va. 254, 497 S.E.2d 464 (1998). See also A. G. Van

Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198,

203 (1988). The commission's factual findings will not be

overturned unless plainly wrong or without evidence to support

them. Dan River, Inc. v. Giggetts, 34 Va. App. 297, 302, 541

S.E.2d 294, 296 (2001).

A. Communication of Hypertension Diagnosis

The commission found claimant was diagnosed with

hypertension more than two years prior to the filing of his

claim, explaining:

As found by the Deputy Commissioner, the
claimant's testimony regarding his diagnosis
of hypertension . . . lacks credibility.

* * * * * * *

The claimant testified that he was entirely
unaware that he suffered from
"hypertension," until January 1998. He even
testified that he did not know he had "high
blood pressure" until 1998. The medical
records strongly suggest to [sic] the
contrary. He also appears to suggest,
however, that Dr. Bryant's use of the term
"high blood pressure," rather than
"hypertension," may have confused or misled
him into believing that he did not have
compensable "hypertension." However, he
acknowledged in later testimony that he was

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 aware that the terms "hypertension" and
"high blood pressure" were synonymous.

Therefore, the claimant's testimony to the
contrary notwithstanding, we find that he
was diagnosed as suffering from
"hypertension" in January 1995, and received
a communication of diagnosis of this
condition on multiple occasions in 1996 and
1997.

Claimant contends a diagnosis of "high blood pressure" is

not a diagnosis of "hypertension" under Code § 65.2-402(B).

Therefore, he argues, the diagnosis of an occupational disease

was not "first communicated" to him until 1998, at which point

the statute of limitations should have started running. See

Code § 65.2-406(A)(5). However, credible evidence supports the

commission's finding that claimant was diagnosed with

hypertension as early as 1995. See Dan River, Inc., 34 Va. App.

at 302, 541 S.E.2d at 296.

Claimant's own testimony proved he knew "hypertension was

high blood pressure." Even if he did not, "a physician is not

required to utilize precise medical terminology to communicate

the existence of occupational disease in order to trigger the

obligation to file a claim." Hawks, 7 Va. App. at 403, 374

S.E.2d at 697 (finding an employee received communication of the

occupational disease interstital fibrosis when a doctor informed

the employee that he had "scarring" of the lungs).

Dr. Hollingsworth's report diagnosed claimant with

"hypertension, stage II" in January 1995. He prescribed

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medication to control the condition and recommended treadmill

tests before allowing claimant to resume his duties at the fire

department. Claimant admits he began taking the medication

around that time. This evidence supports the commission's

finding that claimant knew in 1995 he had hypertension and

should have filed his claim with the commission earlier. 2 See

Uninsured Employer's Fund, 24 Va. App. at 558, 484 S.E.2d at

144.

Additionally, Dr. Bryant testified, and his records show,

he talked to claimant about high blood pressure several times in

1996. Claimant's medical records indicate Dr. Bryant repeatedly

diagnosed hypertension, prescribing medications and behavioral

changes to bring the condition under control. This evidence

supports the commission's finding that a diagnosis of the

occupational disease, hypertension, was communicated to claimant

more than two years before he filed his claim on October 21,

1999. See Dan River, Inc., 34 Va. App. at 302, 541 S.E.2d at

296.

2
Whether the claim was compensable in 1995 is irrelevant.
See Kiser v. Clinchfield Coal Co., 225 Va. 357, 359-60, 302
S.E.2d 44, 45-46 (1983) (finding a claim must be filed when a
diagnosis of an occupational disease is communicated to an
employee, whether or not he believes at that time that the claim
will result in any award of benefits).

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 B. Communication of Workplace Relationship

Claimant also argues the causal connection between his

hypertension and his workplace was not communicated to him until

January 1998. Therefore, he maintains, the two-year statute of

limitations did not begin to run until that time.

Claimant is correct in claiming Code § 65.2-406(A)(5)

requires communication of two distinct facts: (1) a diagnosis

of the disease; and (2) the disease is an "occupational

disease." Code § 65.2-400 defines an "occupational disease" as

"a disease arising out of and in the course of employment, but

not an ordinary disease of life to which the general public is

exposed outside of the employment."

A diagnosis of an occupational disease is not completely

communicated to an employee until he receives information

indicating the disease is "one 'arising out of and in the course

of the employment.'" Garrison v. Prince William County Bd. of

Supervisors, 220 Va. 913, 917, 265 S.E.2d 687, 689 (1980)

(citing Code § 65.1-46, a previous version of Code § 65.2-400)

(holding the statute of limitations did not bar a claim filed in

1978, where the employee was told he had hypertension in 1975,

but he was not told hypertension arose out of and in the course

of his employment). The determinative issue here, therefore, is

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whether the diagnosis of hypertension 3 as an "occupational

disease" was communicated to claimant prior to October 21, 1997,

two years before the filing of his claim.

It is undisputed that no physician communicated to claimant

that a nexus existed between his hypertension and his job prior

to the appointment with Dr. Bryant in January 1998. 4 However,

this fact does not end our inquiry. We must determine when

claimant was informed that hypertension is an occupational

disease.

We have previously held communication of an occupational

disease need not come from a medical doctor. In Ratliff v.

Dominion Coal Co., 3 Va. App. 175, 179, 349 S.E.2d 147, 149

(1986), this Court held a letter from the United States

Department of Labor, informing a miner that he was disabled

under the Black Lung Benefits Act, constituted "a medical

determination of total disability due to pneumoconiosis" and

3
Code § 65.2-402(B), in part, states:

Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of (i) salaried or volunteer
firefighters . . . shall be presumed to be
occupational diseases [sic], suffered in the
line of duty, that are covered by this title
unless such presumption is overcome by a
preponderance of competent evidence to the
contrary.
4
In fact, Dr. Bryant denies ever informing claimant that
his hypertension was caused by his employment as a firefighter.

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triggered the running of the Virginia statute of limitations for

workers' compensation benefits. This Court rejected Ratliff's

argument "that the Department of Labor letter was an

administrative or legal determination, but not a 'medical

determination.'" Id. This Court further explained that Ratliff

knew or should have known after receiving the letter that,

although the letter referred to federal standards, "it was,

nevertheless, incumbent upon Ratliff to file a Virginia claim"

of disability due to pneumoconiosis within three years of

receiving the letter. 5 Id. at 180, 349 S.E.2d at 149-50.

Claimant contends the commission misconstrued our decision

in City of Alexandria v. Cronin, 20 Va. App. 503, 458 S.E.2d 314

(1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996). However, the

5
At the time Ratliff was decided, the statute of
limitations for filing a claim was controlled by former Code
§ 65.1-52, which read:

The right to compensation under this chapter
shall be forever barred unless a claim be
filed with the Industrial Commission within
one of the following time periods:

1. For coal miners' pneumoconiosis, three
years after a diagnosis of the disease is
first communicated to the employee or within
five years from the date of the last
injurious exposure in employment, whichever
first occurs.

(Emphasis added.)

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commission correctly applied Cronin. In fact, we find Cronin is

dispositive of this case.

In Cronin, Cronin received a formal diagnosis of coronary

heart disease in October 1989 and soon thereafter filed with the

city for service-connected disability retirement from his job as

a firefighter. Id. at 505, 458 S.E.2d at 315. Cronin died on

February 22, 1992, and his estate filed a claim for benefits

with the commission. Id. at 506, 458 S.E.2d at 315. The

commission concluded Cronin's estate was not barred by the

limitation period because Cronin was "not 'medically advised

that his condition was causally related to his work.'" Id. at

507, 458 S.E.2d at 316 (citing the commission's decision).

In overturning the commission, this Court held:

By interpreting the statute as requiring
proof of a communication by a physician of
the employee's occupational disease, the
commission ignores the fact that, while many
employees may receive a diagnosis of his or
her disease from a physician, the claimants
may receive the communication that such a
disease is a compensable occupational
disease from someone other than a physician,
often an attorney or someone in charge of
personnel or administering benefits. The
commission's ruling overlooks practical
experience under the Act and the fact that
the compensability of an occupational
disease is a creation of the legislature. A
physician's diagnosis of an employee's
condition is not dispositive on the issue of
compensability and physicians often reach
different conclusions about a condition's
origin.

* * * * * * *

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 Neither this Court nor the Supreme Court of
Virginia has interpreted Code
§ 65.2-406(A)(5) as requiring a
communication from a physician to trigger
the running of the limitations period. We
hold that Code § 65.2-406(A)(5) 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. See Ratliff v. Dominion
Coal Co., 3 Va. App. 175, 349 S.E.2d 147
(1986).

Id. at 508-09, 458 S.E.2d at 316-17. The Court concluded,

"Cronin received a medical diagnosis of his heart condition and

acted upon such diagnosis to receive service-connected

disability benefits. This action proved that Cronin was

informed for purposes of the statute." Id. at 510, 458 S.E.2d

at 317.

As in Cronin, claimant here was not informed by a doctor

that his hypertension was work-related. 6 However, claimant had

known for ten to fifteen years that hypertension is an

occupational disease which is presumptively compensable under

Code § 65.2-402(B). He had lobbied for legislation to enact

that presumption. He was aware, prior to his diagnosis, that

his work as a firefighter afforded him special workers'

6
In fact, Dr. Bryant testified he did not believe
claimant's hypertension was causally related to his work, and
the deputy commissioner found the presumption in Code
§ 65.2-402(B) was rebutted.

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compensation coverage for hypertension. Most significantly,

claimant testified that if a doctor had diagnosed him with

hypertension prior to January 1998, he would have filed his

claim earlier, suggesting he knew such a diagnosis was an

occupational disease. This testimony also belies claimant's

contention that he only had a "general knowledge" of the

compensability of hypertension.

The commission found claimant's testimony that he did not

know his hypertension was presumptively an occupational disease

"lacked credibility." The evidence supports this conclusion.

See Uninsured Employer's Fund, 24 Va. App. at 558, 484 S.E.2d at

144. Overall, claimant's testimony actually underscored the

fact that he did know hypertension was a presumptively

compensable occupational disease. 7

As in Cronin, claimant "receive[d] the communication that

such a disease is a compensable occupational disease from

someone other than a physician." 20 Va. App. at 508, 458 S.E.2d

at 316. He had this knowledge when the diagnosis was

communicated to him, as he had known hypertension was an

7
Claimant further contends that, since Code § 65.2-402(B)
requires "total or partial disability" as a condition for the
presumption to arise, he could not have filed his claim until
February 5, 1998, when he became disabled. We will not consider
this issue because it was not before the deputy commissioner or
the full commission.

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occupational disease for at least fifteen years prior to the

diagnosis.

The evidence supports the commission's findings that a

diagnosis of an occupational disease was communicated to

claimant as of January 1995. Therefore, his October 1999 filing

falls far outside the two-year statute of limitations set forth

in Code § 65.2-406(A)(5). We conclude that the source of the

communication of occupational disease is immaterial as long as

claimant learned "that the condition is an occupational disease

for which compensation may be awarded." Id. at 509, 458 S.E.2d

at 317.

For the reasons stated above, we affirm the decision of the

commission.

Affirmed.

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