Tomes v. James City (County Of) Fire

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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