North branch Coal Co. v. Gerald W. Cordle ( 1997 )

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."
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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.
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