COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Russell, AtLee and Senior Judge Haley
DICKENSON-RUSSELL COAL COMPANY, LLC AND BRICKSTREET MUTUAL INS. CO. MEMORANDUM OPINION* v. Record No. 0328-21-3 PER CURIAM AUGUST 31, 2021 LARRY KISER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Timothy W. Gresham; Kendra R. Prince; Penn, Stuart & Eskridge, on brief), for appellants.
(Paul L. Phipps, on brief), for appellee.
Dickenson-Russell Coal Company, LLC and Brickstreet Mutual Ins. Co. (collectively
“employer”) appeal a decision of the Workers’ Compensation Commission awarding total
disability benefits to Larry Kiser (claimant). On appeal, employer contends that the Commission
relied on insufficient evidence in finding that claimant was permanently and totally disabled
under Code § 65.2-504(A)(4) and that the Commission improperly discredited the opinion of
employer’s medical expert. Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily affirm the decision of the
Commission. See Rule 5A:27.
BACKGROUND
This Court views the evidence in the light most favorable to the party who prevailed before
the Commission. Paramont Coal Co. Virginia, LLC v. McCoy, 69 Va. App. 343, 349 (2018).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Therefore, the appellant here must show that the Commission committed reversible error. Jones v.
Crothall Laundry, 69 Va. App. 767, 774 (2019).
This appeal arises out of claimant’s underlying workers’ compensation claim for
pneumoconiosis. On September 14, 2017, Dr. M.R. Ramakrishnan diagnosed claimant with
pneumoconiosis. Claimant then filed a claim with the Workers’ Compensation Commission
asserting that he developed pneumoconiosis and lost pulmonary function as the result of his
exposure to coal dust while working for employer. On January 27, 2020, the Commission
determined claimant contracted first stage pneumoconiosis and awarded him benefits for fifty
weeks.
Claimant subsequently filed a claim seeking permanent disability benefits due to the
pneumoconiosis. On March 12, 2020, Dr. Emory Robinette completed a questionnaire in relation to
claimant’s claim in which he (1) instructed claimant not to attempt to do any work in a mine or
dusty environment and (2) confirmed that claimant had a “sufficient pulmonary function loss as
shown by approved medical tests and standards to render him totally unable to do manual labor in a
dusty environment.” Dr. Robinette commented in the questionnaire: “progressive xray changes
consistent with complicated CWP [coal workers’ pneumoconiosis]/PMF [progressive massive
fibrosis].” In a June 3, 2020 deposition, Dr. Robinette testified that claimant’s CT scans,
spirometry, and diffusion capacity demonstrated that claimant was unable to perform manual labor
in a dusty environment and that his review of all of the data caused him to conclude that claimant
had suffered a fifteen percent loss of lung function.
Claimant was also examined by Dr. Gregory J. Fino. In his March 13, 2018 report, Dr. Fino
concluded that claimant did not suffer from pneumoconiosis. On July 30, 2020, Dr. Fino issued
another report with respect to claimant’s total disability claim, which found that claimant’s blood
gases and pulmonary function studies were normal and there was “no objective evidence of any
-2- disability.” Dr. Fino found no evidence that claimant had stage one pneumoconiosis or “sufficient
pulmonary function loss to prevent him from doing heavy manual labor in a coal mine or any other
dusty environment.”
On November 19, 2020, a deputy commissioner denied claimant permanent disability
benefits. Claimant requested review by the Commission, and on March 4, 2021, the Commission
reversed the decision of the deputy commissioner and awarded permanent disability benefits. This
appeal followed.
ANALYSIS
Employer argues that the Commission erred in awarding total disability benefits to claimant
because Dr. Robinette did not use “approved medical tests and standards” to prove that claimant
was rendered “totally unable to do manual labor in a dusty environment” as required by
Code § 65.2-504(A)(4). Additionally, employer argues that the Commission erred in discrediting
Dr. Fino’s medical opinion and relying on Dr. Robinette’s opinion.
Under Code § 65.2-504(A)(4), an employee with pneumoconiosis qualifies for permanent
disability if the employee demonstrates that the disease is “accompanied by sufficient pulmonary
function loss as shown by approved medical tests and standards to render an employee totally
unable to do manual labor in a dusty environment.” In addition, the employee must also be
“instructed by competent medical authority not to attempt to do work in any mine or dusty
environment,” and the employee must “in fact not [be] working.” Code § 65.2-504(A)(4).
I.
Employer argues that Code § 65.2-504(A)(4) requires “approved medical tests and
standards” to demonstrate that claimant was unable to perform manual labor in a mine or dusty
environment. Employer further contends that “any medical report or opinion submitted by the
claimant must show the claimant’s pulmonary function loss is sufficient to render him unable to do
-3- manual labor in a dusty environment.” Specifically, employer argues that the Commission erred in
awarding permanent disability benefits to claimant because Dr. Robinette did not rely on the
pulmonary function tests to determine that claimant was totally unable to perform manual labor in a
dusty environment, but rather considered other tests, including radiographic ones. Additionally,
employer asserts that Dr. Robinette’s conclusion that claimant could not work in a dusty
environment was erroneously based on his diagnosis that claimant had complicated pneumoconiosis
as opposed to simple pneumoconiosis.
This Court recently determined what evidence was sufficient to demonstrate that an
employee is unable to perform manual labor in a mine or dusty environment under the statute. See
McCoy, 69 Va. App. 343. In McCoy, the Court rejected the employer’s argument that the medical
opinion supporting the employee’s inability to work must be based on particular “medical tests and
standards. Id. at 355-56. The Court found that “approved medical tests and standards” were
required to prove pulmonary function loss and that “[t]he remainder of the relevant subsection, ‘to
render an employee totally unable to do manual labor in a dusty environment,’ simply describes the
degree of pulmonary function loss necessary to qualify as a permanent disability.” Id. (quoting
Code § 65.2-504(A)(4)). Thus, a physician may use information gained from sources other than
“approved medical tests” to determine that an employee is unable to work in a dusty environment.
Id. at 355.
Contrary to employer’s assertion, Dr. Robinette was not confined to the pulmonary function
tests to conclude that claimant was unable to work. He was permitted to rely on CT scans,
spirometry, diffusion capacity, and other information in forming his conclusion. Therefore, viewing
the evidence as a whole and in the light most favorable to claimant, the record supports both the
conclusion that claimant had suffered a fifteen percent loss of lung function and that he was totally
unable to perform manual labor in a dusty environment.
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Russell, AtLee and Senior Judge Haley
DICKENSON-RUSSELL COAL COMPANY, LLC AND BRICKSTREET MUTUAL INS. CO. MEMORANDUM OPINION* v. Record No. 0328-21-3 PER CURIAM AUGUST 31, 2021 LARRY KISER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Timothy W. Gresham; Kendra R. Prince; Penn, Stuart & Eskridge, on brief), for appellants.
(Paul L. Phipps, on brief), for appellee.
Dickenson-Russell Coal Company, LLC and Brickstreet Mutual Ins. Co. (collectively
“employer”) appeal a decision of the Workers’ Compensation Commission awarding total
disability benefits to Larry Kiser (claimant). On appeal, employer contends that the Commission
relied on insufficient evidence in finding that claimant was permanently and totally disabled
under Code § 65.2-504(A)(4) and that the Commission improperly discredited the opinion of
employer’s medical expert. Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily affirm the decision of the
Commission. See Rule 5A:27.
BACKGROUND
This Court views the evidence in the light most favorable to the party who prevailed before
the Commission. Paramont Coal Co. Virginia, LLC v. McCoy, 69 Va. App. 343, 349 (2018).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Therefore, the appellant here must show that the Commission committed reversible error. Jones v.
Crothall Laundry, 69 Va. App. 767, 774 (2019).
This appeal arises out of claimant’s underlying workers’ compensation claim for
pneumoconiosis. On September 14, 2017, Dr. M.R. Ramakrishnan diagnosed claimant with
pneumoconiosis. Claimant then filed a claim with the Workers’ Compensation Commission
asserting that he developed pneumoconiosis and lost pulmonary function as the result of his
exposure to coal dust while working for employer. On January 27, 2020, the Commission
determined claimant contracted first stage pneumoconiosis and awarded him benefits for fifty
weeks.
Claimant subsequently filed a claim seeking permanent disability benefits due to the
pneumoconiosis. On March 12, 2020, Dr. Emory Robinette completed a questionnaire in relation to
claimant’s claim in which he (1) instructed claimant not to attempt to do any work in a mine or
dusty environment and (2) confirmed that claimant had a “sufficient pulmonary function loss as
shown by approved medical tests and standards to render him totally unable to do manual labor in a
dusty environment.” Dr. Robinette commented in the questionnaire: “progressive xray changes
consistent with complicated CWP [coal workers’ pneumoconiosis]/PMF [progressive massive
fibrosis].” In a June 3, 2020 deposition, Dr. Robinette testified that claimant’s CT scans,
spirometry, and diffusion capacity demonstrated that claimant was unable to perform manual labor
in a dusty environment and that his review of all of the data caused him to conclude that claimant
had suffered a fifteen percent loss of lung function.
Claimant was also examined by Dr. Gregory J. Fino. In his March 13, 2018 report, Dr. Fino
concluded that claimant did not suffer from pneumoconiosis. On July 30, 2020, Dr. Fino issued
another report with respect to claimant’s total disability claim, which found that claimant’s blood
gases and pulmonary function studies were normal and there was “no objective evidence of any
-2- disability.” Dr. Fino found no evidence that claimant had stage one pneumoconiosis or “sufficient
pulmonary function loss to prevent him from doing heavy manual labor in a coal mine or any other
dusty environment.”
On November 19, 2020, a deputy commissioner denied claimant permanent disability
benefits. Claimant requested review by the Commission, and on March 4, 2021, the Commission
reversed the decision of the deputy commissioner and awarded permanent disability benefits. This
appeal followed.
ANALYSIS
Employer argues that the Commission erred in awarding total disability benefits to claimant
because Dr. Robinette did not use “approved medical tests and standards” to prove that claimant
was rendered “totally unable to do manual labor in a dusty environment” as required by
Code § 65.2-504(A)(4). Additionally, employer argues that the Commission erred in discrediting
Dr. Fino’s medical opinion and relying on Dr. Robinette’s opinion.
Under Code § 65.2-504(A)(4), an employee with pneumoconiosis qualifies for permanent
disability if the employee demonstrates that the disease is “accompanied by sufficient pulmonary
function loss as shown by approved medical tests and standards to render an employee totally
unable to do manual labor in a dusty environment.” In addition, the employee must also be
“instructed by competent medical authority not to attempt to do work in any mine or dusty
environment,” and the employee must “in fact not [be] working.” Code § 65.2-504(A)(4).
I.
Employer argues that Code § 65.2-504(A)(4) requires “approved medical tests and
standards” to demonstrate that claimant was unable to perform manual labor in a mine or dusty
environment. Employer further contends that “any medical report or opinion submitted by the
claimant must show the claimant’s pulmonary function loss is sufficient to render him unable to do
-3- manual labor in a dusty environment.” Specifically, employer argues that the Commission erred in
awarding permanent disability benefits to claimant because Dr. Robinette did not rely on the
pulmonary function tests to determine that claimant was totally unable to perform manual labor in a
dusty environment, but rather considered other tests, including radiographic ones. Additionally,
employer asserts that Dr. Robinette’s conclusion that claimant could not work in a dusty
environment was erroneously based on his diagnosis that claimant had complicated pneumoconiosis
as opposed to simple pneumoconiosis.
This Court recently determined what evidence was sufficient to demonstrate that an
employee is unable to perform manual labor in a mine or dusty environment under the statute. See
McCoy, 69 Va. App. 343. In McCoy, the Court rejected the employer’s argument that the medical
opinion supporting the employee’s inability to work must be based on particular “medical tests and
standards. Id. at 355-56. The Court found that “approved medical tests and standards” were
required to prove pulmonary function loss and that “[t]he remainder of the relevant subsection, ‘to
render an employee totally unable to do manual labor in a dusty environment,’ simply describes the
degree of pulmonary function loss necessary to qualify as a permanent disability.” Id. (quoting
Code § 65.2-504(A)(4)). Thus, a physician may use information gained from sources other than
“approved medical tests” to determine that an employee is unable to work in a dusty environment.
Id. at 355.
Contrary to employer’s assertion, Dr. Robinette was not confined to the pulmonary function
tests to conclude that claimant was unable to work. He was permitted to rely on CT scans,
spirometry, diffusion capacity, and other information in forming his conclusion. Therefore, viewing
the evidence as a whole and in the light most favorable to claimant, the record supports both the
conclusion that claimant had suffered a fifteen percent loss of lung function and that he was totally
unable to perform manual labor in a dusty environment.
-4- Employer also argues that Dr. Robinette’s opinion regarding claimant’s ability to work rests
on the allegedly flawed premise that claimant had complicated pneumoconiosis. Because the
Commission previously had decided that claimant suffered from stage one pneumoconiosis, the
Commission only analyzed whether any stage of pneumoconiosis rendered claimant totally unable
to perform manual labor in a dusty environment. Based on credible evidence from Dr. Robinette,
the Commission determined that claimant’s pneumoconiosis did render him unable to work.
II.
Employer argues that the Commission erred in discrediting the opinion of Dr. Fino while
relying on the opinion of Dr. Robinette. Employer notes the Commission gave less weight to
Dr. Fino’s opinion because he opined that claimant did not suffer from pneumoconiosis despite the
Commission’s prior ruling that claimant suffered from stage one pneumoconiosis. Nevertheless,
employer contests the Commission’s reliance on Dr. Robinette’s medical opinion because
Dr. Robinette concluded that claimant suffered from complicated, as opposed to simple,
pneumoconiosis.
Conflicting expert medical opinions are questions of fact to be determined by the
Commission and are binding on this Court. Advance Auto & Indem. Ins. Co. of N. Am. v. Craft, 63
Va. App. 502, 522 (2014). When experts disagree, the Commission is responsible for determining
the probative weight to be accorded to each expert. Id. If credible evidence supports the
Commission’s determination, the determination is binding on this Court. Id.
The Commission is responsible for weighing and considering conflicting expert medical
opinions. The Commission rejected Dr. Fino’s opinion because it conflicted with the previously
determined diagnosis that the claimant suffered from pneumoconiosis. Considering the totality of
the record, the Commission did not err in rejecting Dr. Fino’s opinion and accepting Dr. Robinette’s
opinion.
-5- CONCLUSION
For these reasons, we summarily affirm the Commission’s decision. See Rule 5A:27.
Affirmed.
-6-