North branch Coal Co. v. Gerald W. Cordle

• Court: Court of Appeals of Virginia
• Decided: June 10, 1997
• Docket: 0191973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

NORTH BRANCH COAL COMPANY, INC. AND LIBERTY MUTUAL INSURANCE COMPANY MEMORANDUM OPINION * v. Record No. 0191-97-3 PER CURIAM JUNE 10, 1997 GERALD W. CORDLE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (John C. Johnson; Monica L. Taylor; Gentry, Locke, Rakes & Moore, on briefs), for appellants.

(Daniel Sachs, on brief), for appellee.

North Branch Coal Company, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that Gerald W. Cordle

did not receive a diagnosis of pneumoconiosis in 1983 sufficient

to trigger the running of the applicable statute of limitations.

Upon reviewing the record and the briefs of the parties, we

conclude that this appeal is without merit. Accordingly, we

summarily affirm the commission's decision. Rule 5A:27.

"Whether a diagnosis of an occupational disease was

communicated and when the communication occurred are factual

determinations to be made by the commission upon the evidence."

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

S.E.2d 140, 144 (1997). The commission's factual findings will * Pursuant to Code § 17-116.010 this opinion is not designated for publication. be upheld on appeal if supported by credible evidence. See James

v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d

487, 488 (1989). On appeal, we view the evidence in the light

most favorable to the prevailing party below. See R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).

So viewed, the evidence established that Cordle began

working for employer in 1982. In 1983, Dr. J.P. Sutherland, Sr.

x-rayed Cordle's chest. According to Cordle, Dr. Sutherland told

him "you've got a little bit of something." Dr. Sutherland then

told Cordle that he would "not . . . put nothing down because if

you do you'll have to sign a waiver." Cordle could not remember

what Dr. Sutherland called the condition. When asked if the

doctor used the term "coal worker's pneumoconiosis," Cordle

testified that "[i]t could have been that . . . . I don't know

exactly what it was." The commission held that Cordle did not receive a

communication of an occupational disease in 1983, finding that

"Dr. Sutherland's statement to [Cordle] is too vague to qualify

as a communication of an occupational disease." Based upon this

finding, the commission held that Cordle's claim was not barred

by the applicable statute of limitations.

This case is controlled by Mounts, in which we ruled that an

employee did not receive a communication of an occupational

disease when his x-rays revealed "possible pneumoconiosis."

2 Mounts, 24 Va. App. at 559, 484 S.E.2d at 144. See also Blue

Diamond Coal Co. v. Pannell, 203 Va. 49, 51-52, 122 S.E.2d 666,

668-69 (1961). In this case, the commission could reasonably

infer from Cordle's testimony that his 1983 conversation with Dr.

Sutherland did not provide a diagnosis that was sufficiently

definite to inform Cordle that he had contracted a disease caused

by his employment, and thus, it did not trigger the running of

the limitation period. Cordle's testimony constitutes credible

evidence to support the commission's decision. For these reasons, we affirm the commission's decision.

Affirmed.