COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
MELVIN H. TOMES, JR.
OPINION BY
v. Record No. 2450-01-4 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 17, 2002
JAMES CITY (COUNTY OF) FIRE AND
VIRGINIA MUTUAL 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. (Whitt & Associates, on
brief), for appellees.
Melvin H. Tomes, Jr., (claimant) appeals a decision of the
Workers' Compensation Commission (commission) denying his
October 7, 1997 and June 7, 2000 claims for benefits under Code
§ 65.2-402(A). The commission ruled both claims were for the
same lung condition, which claimant, because he was not entitled
to the benefit of the presumption in Code § 65.2-402, failed to
prove was a compensable occupational disease. We hold the
commission did not err in denying claimant's October 7, 1997
claim but did err in denying his June 7, 2000 claim.
Accordingly, we affirm the commission's decision in part and
reverse it in part.
I. BACKGROUND
The relevant facts in this case are not in dispute. On
October 30, 1995, Dr. Thomas L. Munzel diagnosed claimant, who
had worked as a firefighter with the James City County Fire
Department since June of 1976, as having "virtually reversible
obstruction," which, according to Dr. Munzel, was essentially a
mild asthma variant of "adult onset reversible obstructive
airways disease."
Based on that diagnosis, claimant filed a claim for
benefits with the commission on November 14, 1995, for
"virtually reversible obstruction" disease with a date of
communication of October 30, 1995. Although he sought no
specific benefits, claimant filed the claim to "have [it] on the
record for [the] future." Claimant withdrew the claim on May 2,
1996, but timely refiled it on October 7, 1997. In refiling the
claim, claimant specifically indicated he had "not missed any
work at [that] time." Rather, he simply wanted to have his
claim "on [the] record for [the] future." On June 7, 2000,
claimant notified the commission that he sought payment of his
medical bills related to the virtually reversible obstructive
disease communicated to him by Dr. Munzel on October 30, 1995.
Claimant received treatment from Dr. Munzel for his asthma
from 1995 to 1999 but did not miss work or have any work
restrictions imposed on him during that period. However, in
early 2000, after working at a fire in December of 1999,
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claimant's progressively worsening lung condition became
disabling. On February 7, 2000, Dr. Munzel, having diagnosed
claimant's pulmonary condition as irreversible chronic
obstructive pulmonary disease and acute exacerbation of his
asthma, directed that claimant not return to work as an active
firefighter for at least two months. Dr. Munzel explained that
claimant was disabled from working as an active firefighter at
the time "due to his asthma," which was "clearly exacerbated by
the fire fighting." From that point on, claimant never returned
to work in an unrestricted capacity. In December of 2000,
Dr. Munzel testified claimant had "continued to be disabled due
to his asthma" and would never be able to actively fight fires
again.
On June 7, 2000, claimant filed a claim for benefits
alleging "Chronic obstructive pulmonary disease (COPD)/small
airways disease/asthma" with a date of communication of February
7, 2000. In filing that claim, claimant sought disability and
medical benefits for the period beginning February 7, 2000.
On January 16, 2001, the deputy commissioner conducted a
hearing on claimant's October 7, 1997 and June 7, 2000 claims.
As the deputy commissioner noted, claimant was seeking "payment
of medical bills from Dr. Munzel and related diagnostic studies
commencing 1995 through the present" on the October 7, 1997
claim and temporary total and partial disability benefits on the
June 7, 2000 claim. James City County Fire and its insurer
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Virginia Municipal Group Self-Insurance Association
(collectively, employer) defended those claims, in part, on the
grounds that they were barred by the applicable two-year statute
of limitations because both claims were for the same disease,
which was first communicated on October 30, 1995, and claimant
sustained no disability until February 7, 2000. Employer
stipulated, however, that, if the commission found the claim
based on the October 30, 1995 date of communication and the
claim based on the February 7, 2000 date of communication were
separate claims based on separate diseases, it could not
overcome the presumption in Code § 65.2-402 as to the June 7,
2000 claim.
The deputy commissioner denied claimant's October 7, 1997
claim, ruling the presumption in Code § 65.2-402 was not
applicable to that claim because claimant suffered no partial or
total disability "as a result of [the] October 30, 1995 date of
communication." Without benefit of that presumption, the deputy
commissioner continued, claimant was unable to prove he had
sustained a compensable occupational disease. 1
However, the deputy commissioner granted claimant's June 7,
2000 claim, ruling it was a separate claim, distinct from the
October 7, 1997 claim. Applying employer's stipulation that it
did not have sufficient evidence to overcome the presumption in
1
Claimant does not challenge this finding on appeal.
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Code § 65.2-402 with regard to the June 7, 2000 claim, the
deputy commissioner concluded claimant had proven a compensable
occupational respiratory disease first communicated to claimant
on February 7, 2000.
Upon review, a majority of the full commission affirmed the
deputy commissioner's denial of the October 7, 1997 claim and
reversed the deputy commissioner's decision with respect to the
June 7, 2000 claim. 2 The commission agreed with the deputy
commissioner that, as to the respiratory disease first
communicated to claimant on October 30, 1995, claimant did not
qualify for the presumption of Code § 65.2-402 and that,
"[w]ithout the benefit of the presumption, the evidence . . .
[did] not establish a compensable occupational disease." With
regard to claimant's latter claim, the commission stated:
The [June 7, 2000] claim . . . is
dismissed. That claim was for a lung
condition initially diagnosed on October 30,
1995, which had worsened. This is not a
separate claim for a separate disease.
Rather, in the second claim, the claimant
seeks disability benefits beyond the running
of the statute of limitations for his lung
condition, which we find is not compensable.
II. ANALYSIS
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
2
One commissioner dissented, stating simply: "In my view,
the lung condition diagnosed in 1995 is distinct from the
chronic obstruction pulmonary disease diagnosed in 2000. The
claim for disability benefits is therefore not untimely."
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Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). If
supported by credible evidence, the factual findings of the
commission are binding on appeal. Code § 65.2-706(A); Fairfax
Hospital v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722
(1980). However, "we review questions of law de novo," Rusty's
Welding Serv. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255,
259 (1999) (en banc), ever mindful that, "[w]hile the provisions
of the Virginia [Workers' Compensation] Act are to be liberally
construed to see that its benefits are awarded to injured
employees, that principle [neither] authorize[s] the courts to
amend, alter or extend its provisions, nor . . . require[s] that
every claim asserted be allowed," Bowden v. Newport News
Shipbuilding & Dry Dock Co., 11 Va. App. 683, 688, 401 S.E.2d
884, 887 (1991). While we generally give great weight and
deference, on appeal, to the commission's construction of the
Workers' Compensation Act, we are "'not bound by the
commission's legal analysis in this or prior cases.'" Peacock
v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368,
372 (2002) (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184,
189 n.1, 497 S.E.2d 904, 906 n.1 (1998)), appeal filed, No.
021766 (July 29, 2002).
As relevant to the facts of this case, Code
§ 65.2-406(A)(5) provides that the right to compensation for
occupational diseases shall be forever barred unless a claim is
filed within two years after a diagnosis of the disease is first
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communicated to the employee. Hence, "once an employee receives
a communication of an occupational disease, it is incumbent upon
him to file a claim" within two years of that communication.
Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343
S.E.2d 455, 458-59 (1986) (footnote omitted). "[I]f an employee
receives a communication of a diagnosis of an occupational
disease, and does not act on that communication prior to the
running of the statute of limitations, then he is barred from
filing a later claim based on a later diagnosis." Id. at 225,
343 S.E.2d at 458 (citing Anderson v. Clinchfield Coal Co., 214
Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "Once a claim is
filed, it is the duty of the Commission to determine: (1)
whether the disease is in fact an 'occupational disease' as
defined in Code § 65.1-46 [now Code § 65.2-400], and if so, (2)
whether that occupational disease is compensable." Id. at 226,
343 S.E.2d at 459 (footnote omitted).
In this case, claimant acted appropriately upon receiving a
communication of a possible occupational disease from
Dr. Munzel. Once Dr. Munzel diagnosed him with virtually
reversible obstruction on October 30, 1995, claimant, after
withdrawing an earlier claim, filed a timely claim for virtually
reversible obstruction with the commission on October 7, 1997.
Hence, it then became the commission's duty to determine whether
the claimant's disease was an occupational disease, and if so,
whether that occupational disease was compensable.
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In fulfillment of that duty, the deputy commissioner, after
conducting a hearing on claimant's October 7, 1997 claim on
January 16, 2001, denied the claim, concluding that claimant had
failed to prove the disease upon which that claim was based was
a compensable occupational disease. In reaching that
conclusion, the deputy commissioner held the presumption in Code
§ 65.2-402 was inapplicable to claimant's October 7, 1997 claim
because claimant sustained no disability as a result of the
disease communicated to him on October 30, 1995, and thus sought
only payment of medical bills in his claim. On review, the
commission affirmed the deputy commissioner's denial of
claimant's October 7, 1997 claim.
Code § 65.2-402(A) provides, in pertinent part:
Respiratory diseases that cause . . .
any health condition or impairment of
[volunteer or salaried] firefighters . . .
resulting in total or partial disability
shall be presumed to be occupational
diseases, 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.
Thus, in order to establish the relevant prima facie case
necessary to secure the benefit of the presumption in Code
§ 65.2-402(A), a claimant must prove his occupation as a
firefighter and his disability from a respiratory disease. See
City of Norfolk v. Lillard, 15 Va. App. 424, 427, 424 S.E.2d
243, 245 (1992). "Disability from a disease has been defined as
the stage when the disease prevents the employee from performing
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his work efficiently." Salyer v. Clinchfield Coal Corp., 191
Va. 331, 338, 61 S.E.2d 16, 20 (1950).
Here, claimant failed to establish that the respiratory
disease referenced in his October 7, 1997 claim rendered him
totally or partially disabled. Indeed, he sought no lost
earnings from work in his claim and concedes on appeal that "he
did not miss any time from work until February 7, 2000," when
Dr. Munzel diagnosed him with irreversible chronic obstructive
pulmonary disease and acute exacerbation of his asthma and
instructed him not to return to work as an active firefighter.
Claimant further concedes on appeal (1) that "[t]he medical
records . . . disclose that [he] did not incur the required
disability for invoking the benefits of the presumption pursuant
to [Code] § 65.2-402(A), until February 7, 2000," (2) that,
prior to February 7, 2000, he "was never either partially or
totally disabled from work as a firefighter due to lung
disease," and (3) that "the time for wage indemnity had long
since lapsed" by the time he suffered any disability.
Accordingly, the deputy commissioner and the commission did not
err in holding the presumption in Code § 65.2-402 had no
application to claimant's October 7, 1997 claim and in
concluding claimant failed to prove that virtually reversible
obstruction was a compensable occupational disease.
However, as noted, Dr. Munzel diagnosed claimant, on
February 7, 2000, as having irreversible chronic obstructive
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pulmonary disease and acute exacerbation of his asthma and told
him he could not return to work as an active firefighter. Based
on that diagnosis, claimant filed a claim for benefits on June
7, 2000, for "Chronic obstructive pulmonary disease (COPD)/small
airways disease/asthma," with a date of communication of
February 7, 2000. In that claim, claimant sought disability
benefits commencing February 7, 2000.
The deputy commissioner found that claimant's June 7, 2000
claim was a new, different claim and, applying employer's
stipulation that it could not overcome the presumption in Code
§ 65.2-402, held that claimant had proven a compensable
occupational disease first communicated to claimant on February
7, 2000. The commission, however, reversed the decision of the
deputy commissioner, ruling that claimant's June 7, 2000 claim
was not a separate claim and that the claimant sought
"disability benefits beyond the running of the statute of
limitations for his lung condition, which [was] not
compensable."
In Parris, after examining four prior cases involving
multiple diagnoses of the "same" occupational disease, we set
out the "rule of law" discerned from those cases, stating as
follows:
If the Commission determines that the
claimant does not have an occupational
disease, or that his occupational disease is
not compensable, then the statute of
limitations in regard to the first
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communication of the diagnosis forming the
basis of that claim has no bearing on a
subsequent diagnosis and a claim filed as a
result of the communication of that
diagnosis.
2 Va. App. at 226, 343 S.E.2d at 459.
One of the cases we reviewed in Parris was Hale v.
Clinchfield Coal Co., 59 O.I.C. 112 (1981), the holding of
which, we observed, was noted with approval by the Supreme
Court. Parris, 2 Va. App. at 225, 343 S.E.2d at 458. As we
noted in Parris, the Hale case
centered on the question of compensability
of a claim based on a diagnosis of an
occupational disease. Hale received a
diagnosis of employment-related hearing loss
on May 10, 1975, and timely filed a claim on
that basis. The Commission, applying a
table for rating hearing loss, concluded
that Hale's hearing loss was so minor at
that point that it was not included on the
table to the extent that it would be
compensable. In 1980, Hale received a
second diagnosis of occupational hearing
loss which had become more severe at that
time. The Commission entered an award for
Hale, finding that his 1980 claim was not
barred because the evidence relating to the
1975 claim did not show a compensable
hearing loss at that time. The Commission
held "that the Statute of Limitations did
not commence to run against [the 1980] claim
until the date of diagnosis and
communication of a compensable occupational
disease, on April 7, 1980."
Id. at 224, 343 S.E.2d at 457-58 (first emphasis added) (quoting
Hale, 59 O.I.C. at 113). Another of the cases we reviewed in
Parris was Cook v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d
263 (1975), about which we wrote:
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Cook first received a diagnosis of
occupational pneumoconiosis in 1968. He
timely filed a claim based on that
diagnosis. This 1968 claim was dismissed
"because the medical evidence did not prove
the existence of an occupational disease."
[Cook, 215 Va.] at 600, 212 S.E.2d at 264.
In 1973, Cook received another diagnosis of
occupational pneumoconiosis, and timely
filed a claim. The Supreme Court, in
reversing the Commission, held that Cook was
not barred from filing his 1973 claim. The
Court stated that:
The record shows that claimant's
1968 application was dismissed by
the deputy commissioner because
the medical evidence at the
hearing before him failed to
disclose the existence of any
occupational disease. Since
claimant could not prove his 1968
claim by medical evidence before
the deputy commissioner, he was
not barred from filing his second
claim when he obtained a positive
diagnosis on June 13, 1973, that
he had pneumoconiosis.
Id.
Parris, 2 Va. App. at 223-24, 343 S.E.2d at 457.
Here, as in Hale and Cook, claimant, after failing to prove
he had a compensable occupational disease based on his first
diagnosis and claim, received a second diagnosis and filed a
timely second claim pertaining to the same condition, which had
since worsened and become compensable. Thus, applying the same
rationale utilized in Hale and Cook, and set forth in Parris, to
the instant case, we conclude the commission erred in denying
and dismissing claimant's June 7, 2000 claim and, in light of
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employer's stipulation that it could not overcome the
presumption in Code § 65.2-402 as to that claim, in holding that
the disease upon which the June 7, 2000 claim was based was not
compensable. It matters not, under Hale, Cook, and Parris, that
claimant's June 7, 2000 claim was based, as the commission
found, upon the same condition upon which claimant's initial,
denied claim was based. Once the commission determined that
claimant had failed to prove he had a compensable occupational
disease, with respect to his first claim, the claimant was not
barred from receiving an award on his June 7, 2000 claim based
on the diagnosis communicated to him on February 7, 2000.
Accordingly, we affirm the commission's decision affirming
the deputy commissioner's denial of claimant's October 7, 1997
claim, reverse the commission's decision denying and dismissing
claimant's June 7, 2000 claim, and remand this case to the
commission for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part
and remanded.
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