Dan River, Inc. v. Adkins

• Decision Date: 21 October 1986
• Docket Number: No. 0827-85,0827-85
• Citation: 3 Va.App. 320,349 S.E.2d 667
• Court: Virginia Court of Appeals
• Parties: DAN RIVER, INC. v. Anne M. ADKINS. Record

Page 667

349 S.E.2d 667

3 Va.App. 320

DAN RIVER, INC. v. Anne M. ADKINS.

Record No. 0827-85.

Court of Appeals of Virginia.

Oct. 21, 1986.

James A. Harper, Jr., Richmond, Michael P. Regan, Danville, (Michael H. Corley; Hunton & Williams, Richmond, on briefs), for appellant.

Leonard T. Jernigan, Jr. (Phillip Sasser, Jr.; Jarrell, Hicks & Sasser, Spotsylvania, on brief), for appellee.

Present BENTON, COLE and KEENAN, JJ.

KEENAN, Judge.

Dan River, Inc. appeals from a decision of the Industrial Commission finding that Anne M. Adkins is permanently disabled by irreversible, third-stage byssinosis. Dan River contends: (1) that Adkins' claim is time-barred; (2) that the Commission's appointment of an independent expert under Code § 65.1-90 violated the Commission's own rules and deprived Dan River of due process; and (3) that no credible evidence supports the finding of byssinosis. We hold that Adkins' claim is time-barred and reverse the Commission's decision.

I.

Adkins worked in Dan River's textile manufacturing establishment, with several interruptions in time, from the late 1920's to 1976. She retired on May 28, 1976. Adkins filed a claim with the Commission on May 24, 1983. At the time of Adkins' retirement, the worker's compensation statute provided in pertinent part:

The right to compensation [for occupational disease] shall be forever barred unless a claim be filed with the Industrial Commission within three years for coal worker's pneumoconiosis and two years for all other occupational diseases after a diagnosis of an occupational disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.

Code § 65.1-52 (1980 Repl.vol.). In 1982, the General Assembly amended this provision to read in pertinent part as follows:

The right to compensation [for occupational disease] shall be forever barred unless a claim be filed with the Industrial Commission within one of the following time periods:

* * *

* * *

2. For byssinosis, two years after a diagnosis of the disease is first communicated to the employee or within seven years from the date of the last injurious exposure in employment, whichever first occurs[.]

1982 Va.Acts c. 82 (codified at Code § 65.1-52 (1980 Repl.vol. & Cum.Supp.1986)).

The deputy commissioner adversely decided the merits of Adkins' claim. In addition, the deputy commissioner concluded that although Adkins filed her claim within two years after a diagnosis was communicated to her, the claim was untimely because the five-year period in former Code § 65.1-52 expired on May 28, 1981, before the legislature extended the period to seven years.

A majority of the Commission found, as did the deputy commissioner, that Adkins received a diagnosis of byssinosis on May 17, 1983. ¹ Using the date of her retirement as the date of her "last injurious exposure" as provided by the statute, Owens v. Buchanan County Coal Co., 54 O.I.C. 299 (1972), the Commission found that Adkins had filed her claim within the seven-year period of the amended Code § 65.1-52. In holding that the seven-year period applied, the Commission stated:

[T]he law in effect at the time of the accident is controlling in this case, and ... under § 65.1-49, the date of communication of occupational disease to the employee is the date of "happening of an injury by accident." The Commission has so held in prior cases including Crenshaw v. Newport News Shipbuilding & Drydock Co., 57 OIC 83 (1977).

Thus, the Commission concluded that Adkins filed her claim within the time allowed from the date of her "accident," seven years.

Chairman James, in a dissenting opinion, concluded that Adkins' claim was barred when the five-year period in former Code § 65.1-52 expired. He stated that Dan River then acquired a "vested right" in the limitations bar and the General Assembly subsequently could not revive Adkins' "dead claim." As authority for this position, Chairman James cited, inter alia, Parris v. Appalachian Power Company, (I.C. Claim No. 637-202). Dan River reiterates the "vested right" position of Chairman James' dissenting opinion and urges us to find Parris dispositive of the issue.

II.

In order to determine whether Adkins' claim was timely filed, we must decide whether to apply the limitation period of Code § 65.1-52 as it existed five years after the date of her last injurious exposure, or the limitation period in effect on the date that she first received communication of the diagnosis.

In deciding to apply the limitation period in effect on the date Adkins first received communication of a diagnosis of byssinosis, the Commission did not address the issue whether Dan River acquired a vested right in the five-year limitation period of former Code § 65.1-52. That limitations period was in effect on May 28, 1976, the date of Adkins' last injurious exposure in employment. It remained in effect on May 28, 1981, five years later.

Former Code § 65.1-52 established a two-prong limitation covering byssinosis claims. Worded in the disjunctive, it provided that upon the occurrence of either event (two years after first communication of a diagnosis or five years from the date of last injurious exposure in employment), the employee's right to compensation for an occupational disease was forever barred. Each prong described a distinct event, measured from a different point in time. The occurrence of one event immediately triggered the statutory bar. Once a claim was barred, the employer acquired a vested right. In Kesterson v. Hill, 101 Va. 739, 45 S.E. 288 (1903), the Supreme Court stated:

[I]t has been held that the right to set up the bar of a statute of limitations as a defense to a cause of action after the statute has run is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause, or by an affirmative act; and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the recovery of damages for a tort.

Id. at 743-44, 45 S.E. at 289. See also Hupman v. Cook, 640 F.2d 497 (4th Cir.1981); Nicholas v. Lynchburg Training School and Hospital, 44 O.I.C. 198, 200 (1962).

After the oral argument in Adkins' case, this Court affirmed the Commission's decision in Parris v. Appalachian Power Company, 2 Va.App. 219, 343 S.E.2d 455 (1986), concluding that an employee who had not filed a claim within the five-year limitation period of former Code § 65.1-52 could not receive the benefit of the later amendment. ² The court held that the employer acquired a vested right in the running of the five-year limitation period. Id. at 228, 343 S.E.2d at 460.

In Parris, the date of the employee's last injurious occupational exposure was October 22, 1975. In June 1981, he received a diagnosis of asbestosis. He filed his first claim in August 1981. In holding that the statute of limitations expired before Parris filed his claim, the court stated: "The running of the statute, standing alone, is a bar to subsequent claims. This is true even though the limitations period was subsequently amended." 2 Va. App. at 229, 343 S.E.2d at 460.

The court in Parris also acknowledged: "We note, however, that an amendment to a period of limitation that enlarges the period is generally applicable to existing causes of action provided that an action already barred is not revived." 2 Va.App. at 229, 343 S.E.2d at 461.

We find the holding in Parris to be persuasive authority in the determination of Adkins' claim. In applying the Kesterson analysis to a workers' compensation claim, Parris recognized that once a single prong of the limitation period is fulfilled, the employee's claim expires and the employer acquires a vested right in its expiration.

In Buenson Division Aeronca, Inc. v. McCauley, 221 Va. 430, 270 S.E.2d 734 (1980), the Supreme Court emphasized the significance of a vested right in determining what limitations period is applicable to a given claim. In Buenson, the employee sustained an injury in January 1977. At that time, Code § 65.1-99 placed a twelve month limitation period on the filing of an application for review based upon a change in condition. This twelve-month period was measured from the last day for which compensation was paid pursuant to an award. Code § 65.1-99 was amended, effective July 1977. The amendment enlarged the limitations period to twenty-four months. The employee filed an application for a change in condition nineteen months after the last day for which compensation was paid. The Commission held that amended Code § 65.1-99 applied and allowed the claim. The Supreme Court affirmed the Commission's decision and stated: "Persuasive here is the fact that the new limitation period became effective before the old limitation would have barred McCauley's claim." 221 Va. at 434, 270 S.E.2d at 736. The Court then distinguished that situation from a petition for appeal it refused in Biller v. ARA-Va. Skyline Co., 219 Va.L.C. (1978). In Biller, the employee was last paid compensation for June 28, 1976. On December 6, 1977, he filed an application for review based upon a change of condition. The Commission denied the application based on timeliness. ³ The Supreme Court contrasted the facts of Biller with the facts before it in Buenson:

"Unlike the situation here, however, Biller's claim was barred by the old limitation before the enlarged restriction became effective. To have given retroactive effect to the amendment there would have resulted in the revival of a dead claim."

Buenson, 221 Va. at 434 n. 2, 270 S.E.2d at 736 n. 2. Applying this principle, we find that to allow Adkins' claim based on amended Code § 65.1-52 would result in the revival of a dead claim.

In finding that Adkins' claim had not expired, the Commission relied on Code § 65.1-49 and its holding in Crenshaw v. Newport News Shipbuilding & Drydock ...