Shanahan v. Pocahontas Fuel Co.

72 S.E.2d 639, 194 Va. 303, 1952 Va. LEXIS 232

Opinion

Miller, J.,

delivered the opinion of the court.

On November 20, 1949, John Shanahan filed a claim against Pocahontas Fuel Company, Incorporated, before the Industrial Commission of Virginia for compensation because of disability dué to silicosis allegedly contracted by him while in the employ of defendant.

Claimant’s application for compensation was first heard by Commissioner Robinson on February 18, 1950, and it was then shown that he had suffered a “30 per cent general partial” disability caused by silicosis. On November 1, 1950, an award by that Commissioner was made in his favor for $16.74 per week for 300 weeks beginning as of August 1, 1949. If he is entitled to recover, the amount is not now in controversy.

Upon application by the defendant for a review by the full Commission, the award of November 1, 1950, was set aside and additional evidence taken. After consideration of all the evidence, a majority opinion denying any recovery (in which Commissioner Robinson did not join) was rendered by the Commission. From a final award entered February 14, 1952, which put into effect that opinion, this appeal was granted.

In the majority opinion it is made clear that the Commission’s refusal to grant compensation was because it concluded that the provision of section 65-48, Code 1950, which requires that written notice be given a defendant employer by the claimant within thirty days after the employee first experiences a distinct manifestation of an occupational disease, bad not been complied with. In tbe opinion it is said:

“Tried by the test in tbe Salyer Case [Salyer v. Clinchfield Coal Corp., 191 Va. 331, 61 S. E. (2d) 16], it is our conclusion that claimant failed to give notice of occupational disease witbin thirty days after first experiencing a distinct manifestation of silicosis in accordance with tbe mandate of section 65-48 of tbe Act.”

That section follows:

“Witbin thirty days after claimant first experiences a distinct manifestation, or a diagnosis is made, whichever shall first occur, of an occupational disease, tbe employee, or someone on bis behalf, shall give written notice thereof to tbe employer in accordance with sections 65-82 and 65-83.”

It is conceded that claimant is suffering from silicosis, and the evidence conclusively proves that “be was last injuriously exposed to tbe hazards of tbe disease” while in tbe employ of Pocahontas Fuel Company, Inc. Thus, if be is entitled to recover, 'defendant is tbe sole employer responsible to him. Section 65-47, Code 1950.

Defendant contends that there was credible evidence to sustain tbe factual finding of tbe Commission that claimant failed to give notice witbin tbe time required. It relies upon Salyer v. Clinchfield Coal Corp., supra, wherein tbe phrase used in section 65-48, Code 1950, viz., “experiences a distinct manifestation * * * of an occupational disease,” was construed.

We there said at page 338:

“In our opinion tbe employee has experienced a distinct manifestation of tbe disease if his affliction has so far progressed that be undergoes, has or suffers a sufficiently clear or pronounced symptom or symptoms of tbe malady as would apprise a reasonably prudent man of the fact that be was probably in need of medical examination or assistance.”

Claimant contends that tbe evidence conclusively establishes that notice of claim was given by him and had by the defendant “witbin thirty days after be first experienced a distinct manifestation of tbe disease,” as that phrase was construed and applied in tbe Salyer Case. But be also reminds us that by Acts of 1952, ch. 205, p. 231, the language used in section 65-48, and its meaning as defined in tbe Salyer Case, was altered and liberalized in favor of employees. (It put into effect the view expressed by Mr. Justice Buchanan in bis dissenting opinion in that case.) then insists and argues that as this amending act, by its express terms, is made applicable to occupational diseases contracted before, as well as after, its effective date, i.e., June 28, 1952, (Acts of 1952, ch. 719, p. 1306), his claim is brought under its influence. The material part of that act reads as follows:

“Within thirty days after employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, or a diagnosis *of such disease is first communicated to him, whichever shall first occur, mhe or someone on his behalf, shall give written notice thereof to the employer in accordance with sections 65-82 and 65-83. The limitations imposed by this section as amended shall be applicable to occupational diseases contracted before and.after the effective date hereof.”

It is not denied that defendant was made aware, on July 29, 1949, that claimant was suffering from silicosis and that on August 10, 1950, written notice to that- effect was given by him. The company’s defense is that the evidence is sufficient to sustain the Commission’s finding that claimant first experienced, a distinct manifestation of the disease at some time more than thirty days prior to July 29, 1949. It also contends that Acts of 1952, ch. 205, p. 231, is not applicable to this claim.

Acts of 1952, ch. 205, p. 231, which amended section 65-48, Code 1950, is by clear and explicit language made applicable to occupational diseases contracted before its effective date, yet it impairs no vested rights or property interests. It merely liberalizes the provisions of section 65-48 by requiring that symptoms of the malady, reasonably sufficient to apprise the employee that he has contracted the disease, be experienced by him before the period within which notice must be given the employer shall begin to run, and thus more clearly establishes and points out the thirty day limitation period during which the notice shall be given.. By dealing only with circumstances that have to do with the time within which the notice must be given, it is clear that this amendment cannot and does not disturb any vested right or property interest of the defendant. It has to do solely with, the remedy, and as it expressly states that it shall apply to “occupational diseases contracted before,’-’ as well as after, its effective date, it is intended to operate retrospectively and prospectively, and it must be given that inclusive effect.

“That the legislation affecting matters of remedy may be retroactive in operation, if so expressed and intended, is unquestioned. If the intent so to do is made clear, retroactive effect is given.” Duffy v. Hartsock, 187 Va. 406, 417, 46 S. E. (2d) 570.

Though the final award of the Commission rendered on February 14, 1952, was made several months before the effective date of the amendment of 1952, yet as the amending act is now operative, it should be applied in this case. That is made certain by the recent decision of Bain v. Boykin, 180 Va. 259, 23 S. E. (2d) 127, where an act which did not become effective until after the trial court had rendered final judgment was nevertheless applied and given effect. There 3 Am. Jur., Appeal and Error, sec. 1157, p. 668, is quoted with approval as follows:

“ «* * # reason and the weight of authority point to the view that the case must be determined in the light of the law as it exists at the time of the decision by the appellate court, where the statute changing the law is intended to be retroactive in its effect; and this is true though it may result in the reversal of a judgment which was correct at the time it was rendered by the trial court. The general rule, is, of course, subject to limitation where rights have been acquired which may not be divested by legislative changes in the law. In other words, while as a general rule, the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not, if subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rules which govern, the law must be obeyed, unless it is unconstitutional. ’ ” (180 Va. 265).

Thus it is clear that the rights of the parties must be now determined under the liberalized provision of Acts of 1952, ch. 205, p. 231. "Whether or not the evidence was sufficient to sustain the Commission’s conclusions under section 65-48 as it read when the Commission rendered its opinion and made the award of February 14, 1952, appealed from, need not be and is not decided by ns, for the provisions of the amending act are controlling.'

The contentions of the respective litigants make it necessary to. consider all of the evidence tending to establish the time when claimant first experienced “a distinct manifestation of the disease in the form of symptoms reasonably sufficient to apprise him that he” had contracted the malady.

Summarized it is as follows:

Shanahan worked in the coal mines of defendant from 1925 until 1944, except for a period of about a year in 1936 and 1937 when he was employed by the Page Coal and Coke Company. In 1944 he accepted employment with the Portsmouth Navy Yard, Portsmouth, Virginia, but in 1946 he returned to his former employment with defendant. He worked in defendant’s mine at Boissevain, Va., from 1946 until the latter part of March, 1949, at which time he went to United States Coal and Coke Company, G-ary, West Virginia, where he was employed until he finally ceased work in the mines on August 1, 1949.

Claimant was not subjected to silica dust during the four months that he worked in Gary, West Virginia, but the evidence discloses that during the time he served in defendant’s mines prior to going to Portsmouth Navy Yard and after he returned to defendant’s employ in 1946, he was subjected to and came in contact with sand dust to such an extent as to cause him to contract silicosis.

Shanahan emphatically stated that he was not aware of the fact that he had contracted .the disease until August 1, 1949. Bearing upon this phase of the case, he testified that during March, 1949, while still working for defendant, he was operating a coal cutting machine “working in low coal, and my chest was hurting, and I thought that caused it. I went up there [meaning Gary, West Virginia] to get a job in higher coal. I was in a place that put me in a squeeze # ⅜ *. It was low coal and I thought that was what caused my chest to hurt, being down in low coal. ’ ’ Again in describing his working conditions with defendant just prior to his departure to Gary, he said:

“I was working down on the section down there that had a squeeze on it, and the coal was mashed down low and setting in that machine of a day, my chest was hurting too bad, and I thought that it was indigestion, and I went over there in order to get in high coal. * # * ”

Claimant’s condition did not improve so in June or July, 1949, he had an X-ray made of his chest by the State Health Department mobile unit, and as a result he received a letter from the Tazewell county Health Department under date of July 25, 1949, directing him to report to Dr. H. A. Porter, defendant’s physician, at Boissevain, Virginia. He immediately went to Dr. Porter and was by him referred to Dr. S\ G. Davidson, a roentgenologist of Bluefield Sanitarium, for X-ray, examination and diagnosis. Under date of July 29, 1949, the X-ray reading by Dr. Davidson was as follows:

The evidence further discloses that claimant had been some years previously, i.e., on February 12, 1945, X-rayed and the reading of that X-ray was:

“Slight diffuse increase in the lung markings throughout both sides of the chest. No tuberculosis.”

This X-ray of February 12,1945, was available to Dr. Davidson for study and interpretation when he made the X-ray of July 29, 1949, “suggestive of early silicosis,” and yet the evidence does not disclose that claimant ever saw or was informed of what the X-ray of 1945 disclosed. In fact, he states that he never knew or was informed of the result of that X-ray.

Sometime after claimant had given notice to defendant and filed his application for compensation with the Commission, he was thoroughly examined at Bluefield Sanitarium by Dr. Davidson and other physicians to determine “the presence or absence of silicosis, and if present, to what state it has advanced.” In Dr. Davidson’s report of February 15, 1950, which was made after this thorough examination was concluded, it is.stated:

“This man’s chief complaint is pain in the chest and dyspnea. He states he was in good health until May 1949 when he noted gradual onset of dyspnea on exertion'which has remained sta tionary to the present. About one year ago be began to note a cougb at nigbt and on exertion. Later be developed sticking pain about tbe lower cbest when he would use bis arms. He lost about four pounds in weight, but his appetite is good. Most of bis cougb occurs at nigbt. Sleeps on two pillows. Has spit up blood on a few occasions. He has no temperature, but occasional nigbt sweats.”

After some further observation relative to tbe length of time that claimant worked in tbe mines, bis weight,, blood pressure and other matter bearing upon bis physical condition, Dr. Davidson gives bis conclusion as follows:

“This man has a second stage silicosis with decreased capacity to do work. He has a 30% general disability due to tbe disease silicosis. He has bad sufficient exposure in tbe state of Yirginia to silicon dioxide dust to have produced tbe disease. It is my definite opinion that tbe disease silicosis was susceptible to diagnosis prior to July 1, 1944. ’ ’

It thus appears from tbe evidence that tbe only symptoms experienced by claimant that would tend to apprise him of tbe fact that be bad contracted silicosis was that be bad at some time during tbe early months of 1949 begun to cough at nigbt and after exertion, and bad some discomfort and pain about his cbest. This, however, be attributed to tbe fact that be was working in low coal and in a cramped position. With a view to alleviate this pain, which be did not attribute to any disease but to tbe work that be was doing, be secured employment in another mine at Gary, West Virginia. When be did not improve, be sought medical examination and advice within a reasonable time by securing an X-ray by tbe mobile unit in June or July, 1949. Tbe fact that bis condition may have been, or was, susceptible of diagnosis as silicosis at that time or even prior to July 1, 1944, by no means establishes tbe fact that be bad experienced “symptoms reasonably sufficient to apprise him that be bad contracted tbe disease. ”

In Pocahontas Corp. v. Richardson, 186 Va. 367, 371, 42 S. E. (2d) 260, Mr. Justice Hudgins, now Chief Justice, said:

“ * * * Tbe disease may have developed to such an extent that it is susceptible of diagnosis by an experienced doctor with tbe aid of x-ray and yet tbe” objective symptoms may be so slight that the victim may be entirely unconscious of having contracted the disease. * * *”

It is significant that the interpretation of the X-ray of February 12, 1945, did not mention silicosis, and the report of July 29, 1949, though reciting certain circumstances which pointed to the existence of the disease at that time, concluded by saying that the X-ray reading was “suggestive of early silicosis.”

The facts of this case are similar to those dealt with in Pocahontas Fuel Co. v. Godbey, 192 Va. 845, 855, 66 S. E. (2d) 859, and we there said:

“When appellee entered the corporation’s employ in 1946, he was examined and found to be apparently in good health. In the summer of 1948, when he was X-rayed by the mobile unit, though he was instructed to report to a physician and was then experiencing some weakness and shortness of breath, it does not appear that there were then found any pronounced symptoms of silicosis. On the contrary, he was during the fall of that year treated for tuberculosis, and though repeated examinations and X-rays were made, it is not shown that any physician concluded that he had silicosis until on or about January 5, 1949. Certainly, until about that time no diagnosis of silicosis had been made nor had appellee been informed that he was suffering from that disease. * ”

The evidence was fully developed at the two hearings had by the Commission. The cause is now before us for final decision upon all of that evidence which is to be weighed, and the rights of the parties determined under the provisions of section 65-48, as amended by the Acts of 1952. Upon application of the amending act, we find the evidence insufficient to prove that Shanahan failed to give notice to the defendant within the time required. On the contrary, it shows that he did not experience a distinct manifestation of the disease in the form of symptoms reasonably sufficient to apprise him that he had contracted the disease at any time before he was advised of the results of the X-ray of July 29, 1949, and on that date the company was made aware of his condition. He also gave written notice to the defendant on August 10, 1949, as required by sections 65-82 and 65-83, Codé 1950, and thus full compliance with the statutes requiring notice was had.

For the reasons, stated, the order of the Commission of February 14,1952, is reversed, and this cause is remanded to the Commission, which shall re-instate the award made by Commissioner Robinson on November 1, 1950, and allow to counsel for petitioner a reasonable fee for his services before the Commission and in this court.

Reversed and remanded.