Anderson v. Clinchfield Coal Co.

• Decision Date: 22 April 1974
• Citation: Anderson v. Clinchfield Coal Co., 214 Va. 674, 204 S.E.2d 257 (1974)
• Parties: Frank ANDERSON v. CLINCHFIELD COAL COMPANY.
• Court: Virginia Supreme Court

Page 257

204 S.E.2d 257

214 Va. 674

Frank ANDERSON v. CLINCHFIELD COAL COMPANY.

Supreme Court of Virginia.

April 22, 1974.

S. Strother Smith, III, Abingdon (Smith, Robinson & Vinyard, Abingdon, on brief), for appellant.

J. Thomas Fowlkes, Abingdon (Penn, Stuart & Eskridge, Abingdon, on brief), for appellee.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, HARMAN and POFF, JJ.

PER CURIAM.

The question presented on this appeal is whether the Industrial Commission erred in holding that Frank Anderson's claim against Clinchfield Coal Company (Clinchfield) for workmen's compensation benefits was barred by Code § 65.1--52 ¹ by reason of his failure to timely file an application for a hearing with the Commission.

The evidence shows that on October 22, 1966, Anderson obtained a diagnosis from ihis family physician, Dr. Panos G. Gregoriou, revealing that he had occupational pneumoconiosis. Clinchfield, his employer, was promptly notified of the diagnosis. After subsequent examinations by several other physicians, Anderson was advised that he did not have the occupational disease. However, because Anderson continued to suffer from chest pains, he returned to Dr. Gregoriou, on a date not shown in the record, who again advised him that he had the occupational disease and that it would be in his best interest to cease working in underground coal mining.

After Anderson's return visit to Dr. Gregoriou, a legal representative of his union advised him of the procedure to be followed in filing his claim and the time limitation thereon. Nevertheless, Anderson failed to file a claim with the Commission at that time.

On March 20, 1972, ² Anderson first filed his claim with the Commission alleging that a diagnosis of occupational pneumoconiosis was communicated to him on September 14, 1971. This third diagnosis was also made by Dr. Gregoriou. Examinations by other physicians confirmed Dr. Gregoriou's diagnosis of September 14, 1971.

Commissioner Evans held that Anderson's claim had not been filed within one year from the date the diagnosis of the occupational disease was first communicated to him, as required by Code § 65.1--52 as it read prior to July 1, 1972, and the claim was dismissed for lack of jurisdiction. Commissioner Evans' opinion was affirmed by the full Commission.

On October 1966, when Anderson was first told by his physician that he had the occupational disease, Code § 65.1--52, ³ in pertinent part, provided that:

'The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial...