Blue Diamond Coal Co. v. Pannell

Decision Date27 November 1961
Docket NumberNo. 5309,5309
Citation203 Va. 49,122 S.E.2d 666
PartiesBLUE DIAMOND COAL COMPANY v. HASSIE HEAD PANNELL, WIDOW, ETC. Record
CourtVirginia Supreme Court

W. T. Bowen (Greear, Bowen, Mullins & Winston, on brief), for the appellant.

Jay G. Kauffman (Guy A. Kauffman, on brief), for the appellee.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This appeal presents for review an award of the Industrial Commission against Blue Diamond Coal Company, hereinafter called Blue Diamond, wherein the Commission awarded the statutory benefits. The award carried into effect the majority opinion of the Commission -- one commissioner dissenting.

The assignments of error present four questions, the first being: Was the claim filed within the statutory period? This is jurisdictional, the burden resting with the claimant to prove that the claim was timely filed. Railway Express Agency v. Harrington, 119 Ind.App. 593, 88 N.E.2d 175, 915; Winston v. City of Richmond, 196 Va. 403, 83 S.E.2d 728.

Prior to the 1960 amendment § 65-49, Code of Virginia, 1950 (Acts of Assembly, 1952, ch. 205, p. 231) provided:

'LIMITATION UPON CLAIM. -- The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission within one year after the 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, which ever shall first occur; and, if death results from the occupational disease within said one year period, unless a claim therefor be filed with the Commission within one year after such death. The limitations imposed by this section as amended shall be applicable to occupational diseases contracted before and after June 28, 1952.'

The record discloses that Hubert F. Pannell had been employed as a miner for approximately 25 years prior to his death on December 19, 1958. He last worked for Blue Diamond on July 13, 1951. On that date he voluntarily terminated his employment to accept employment with Head Coal Company where he worked on the coal tipple for six or eight months. He then became a partner in the business and worked on the tipple from January, 1952 to March, 1955, when he and his partner sold the mine. Pannell then obtained employment as a carpenter and followed that trade for a period of approximately eight months. Thereafter he became disabled for work in October, 1956.

On January 22, 1958, Pannell's counsel wrote Blue Diamond that they had been employed by claimant to prosecute his claim for Workmen's Compensation 'which we allege to have arisen out of and in the course of his employment while in the employ of your company at Monarch. We wish, therefore, to give your company notice pursuant to Sections 65-82-83, Code of Virginia, 1950, of said injury. Mr. Pannell has just recently -- Within about three weeks -- been advised that he in all probability has the typical coal miner's occupational disease known as pneumoconiosis. Mr. Pannell was last employed by Blue Diamond in July, 1951.'

On December 18, 1958, Pannell filed his claim with the Industrial Commission wherein he alleged he had contracted occupational pneumoconiosis as a result of exposure to the hazards of the disease while employed by Blue Diamond which had caused him to become disabled for work.

As aforesaid, Pannell died on December 19, 1958, and a claim for death benefits was filed with the Commission by his widow on September 28, 1959.

Pannell began to show symptoms of a chest condition as early as October, 1956, and was not engaged in a gainful occupation after that date. He was treated for the chest condition by Dr. Thomas S. Ely, a general practitioner of Jonesville. Dr. Ely was not of the opinion that Pannell had pneumoconiosis and did not advise him that he was suffering from an occupational disease.

Blue Diamond relies on a report filed by Dr. Daniel Gabriel, dated May 10, 1960, wherein he stated:

'(In) November or December, 1957, I voiced an opinion to Hubert Pannell, after giving him a percussary chest examination, that he may have pneumoconiosis and should therefore be x-rayed. I was not able to make a confirming diagnosis of pneumoconiosis without the benefit of x-rays and strongly urged him to have them taken. * * *' (Italics supplied)

Bule Diamond contends that this report was sufficient under the statute (§ 65-49) to inform claimant that he had 'a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease [pneumoconiosis].'

The Commission held to the contrary. The word 'may' employed in the report would indicate that claimant might or might not have had pneumoconiosis and was not sufficiently definite to apprise him that he had contracted the disease. The Commission found 'that the oral opinion expressed by Dr. Gabriel to the decedent constituted the communication of a tentative diagnosis of occupational disease, which charged the claimant with the duty of obtaining x-rays, as directed, within a reasonable period of time in order that a definite diagnosis could be made.'

In November, 1958, Pannell underwent chest surgery in Dayton, Ohio. The surgery was performed by Dr. Walter Meeker who advised Pannell by letter that he had 'anthracosis', a form of pneumoconiosis. This was the first definite information received by Pannell that he was afflicted with the disease. Later, in November and December, 1959, Dr. Meeker's diagnosis of pneumoconiosis was confirmed by Doctors William F. Schmidt and E. C. Culbertson who examined the 'slides' theretofore made and presented to them.

We agree with the Commission's finding that 'Insofar as the record discloses no definite diagnosis of the workman's incapacitating lung condition was made until November, 1958, subsequent to chest surgery by ...

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  • Ball v. Joy Mfg. Co., Civ. A. No. 1:87-0268
    • United States
    • U.S. District Court — Southern District of West Virginia
    • November 8, 1990
    ...at the time of the injury which applies. See Roller v. Basic Const. Co., 238 Va. 321, 384 S.E.2d 323 (1989); Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 122 S.E.2d 666 (1961). Va. Code § 65.1-46 was amended in 1986. Therefore any exposure which occurred after such amendment took effect wo......
  • Paramont Coal Co. Virginia, LLC v. McCoy
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    ...compensation. See Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981) ; see also Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 53, 122 S.E.2d 666, 669 (1961) (holding that a claimant suffering from pneumoconiosis must prove by a preponderance of the evidence "in whose empl......
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    • Virginia Court of Appeals
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    ...Co., 215 Va. 599, 212 S.E.2d 263 (1975); Anderson v. Clinchfield Coal Co., 214 Va. 674, 204 S.E.2d 257 (1974); Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 122 S.E.2d 666 (1961). Until there has been a diagnosis of occupational disease the claimant has no claim for benefits and the employe......
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    ...as jurisdictional. See, e.g., Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 193 (1973); Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 50, 122 S.E.2d 666, 667 (1961); Winston v. City of Richmond, 196 Va. 403, 410, 83 S.E.2d 728, 732 (1954); Massey Builders Supply Corp. v. ......
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