Hawks v. Henrico County School Bd.

• Decision Date: 06 December 1988
• Docket Number: No. 1153-87-2,1153-87-2
• Parties: , 50 Ed. Law Rep. 1263 Curtis E. HAWKS v. HENRICO COUNTY SCHOOL BOARD. Record
• Court: Virginia Court of Appeals

Page 695

374 S.E.2d 695

7 Va.App. 398, 50 Ed. Law Rep. 1263

Curtis E. HAWKS v. HENRICO COUNTY SCHOOL BOARD.

Record No. 1153-87-2.

Court of Appeals of Virginia.

Dec. 6, 1988.

Lucy H. Allen (Bruce M. Marshall, McCarthy & Durrette, P.C., Richmond, on brief), for appellant.

James F. Stutts (McGuire, Woods, Battle & Booth, Richmond, on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and MOON, JJ.

BENTON, Judge.

We are asked to consider whether the Industrial Commission erred in finding that a March 23, 1984 treating physician's letter to Curtis E. Hawks contained a positive diagnosis of occupational disease and in concluding that Hawks' failure to file until January 12, 1987, bars his claim under Code § 65.1-52. We conclude that the commission's finding that Hawks received a first communication of an occupational disease on March 23, 1984, is supported by credible evidence, and we affirm the decision of the commission.

On March 16, 1984, Hawks visited Dr. Scott Radow with complaints of sinus problems and abnormal breathing. Dr. Radow examined Hawks and reviewed chest x-rays which showed some old nodular and reticular fibrosis. Dr. Radow diagnosed interstitial infiltrates, most likely related to Hawks' inhalation of metal fumes for 40 years, and noted that Hawks utilized lead, steel, iron, tin and aluminum in his welding job, all metals known to produce interstitial infiltrates. Dr. Radow sent the following letter to Hawks on March 23, 1984:

Your x-ray has been reviewed by the radiologist. As we discussed in the office, there is evidence of scarring in the lungs most likely caused by the different metals you are exposed to on your welding job. As we discussed in the office, your lung function remains good and there is no treatment necessary for this scarring at the current time. (emphasis added).

Hawks did not file a claim for compensation. On August 12, 1986, complaining of a cough accompanied by small traces of blood, Hawks consulted Dr. Olan Evans. Dr. Evans' records indicate that he believed Hawks' condition to be consistent with mild interstitial scarring associated with his welding job. On a return visit to Dr. Radow on August 22, 1986, Hawks was diagnosed as having "mild chronic bronchitis throughout" with "mild acute bronchitis in the upper left lobe" of the lung. Dr. Radow's report of September 30, 1986 states that Hawks suffered from "? interstitial disease secondary to metal fume inhalation." His notes further state that "Hawks had rather intense bronchitis [; however,] [t]he etiology is not clear." Dr. Radow observed that Hawks' symptoms suggested "perhaps reactive airways disease."

After further testing, Dr. Radow made the following observations in his November 14, 1986, reports:

Impression: 1. Paroxysmal cough. This is clearly work-related historically. The probability is that the patient has interstitial fibrosis secondary to metal fume inhalation....

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Chronic cough, most likely diagnosis is industrial bronchitis. The contribution of interstitial disease is uncertain.

Radow then wrote to the school board employee recommending a one month rest period for diagnostic and therapeutic purposes. In this letter he stated:

Mr. Hawks has a paroxysmal cough which is work related historically. There are signs of interstitial lung disease suggestive of disease cause[d] by inhalation of metal fumes. This has resulted in pulmonary disability manifested by paroxysmal cough.

After discontinuing work for one month, Hawks' cough was less frequent and severe, but still unresolved. On January 12, 1987, he applied for a hearing, alleging industrial bronchitis and interstitial fibrosis. At the hearing, counsel for both parties stipulated that Dr. Radow had communicated his diagnosis to Hawks on November 14, 1986. The school board's sole ground of defense was that claimant's condition was a noncompensable ordinary disease of life. The deputy commissioner concluded that Dr. Radow had diagnosed employment-related industrial bronchitis and awarded benefits.

In its request for a review by the full commission, the school board did not challenge the finding that Hawks suffered from an occupational disease, but instead asserted that the award was barred by the statute of limitations. Finding that Dr. Radow's March 23, 1984 letter to Hawks, together with his medical history, established the first communication of occupational disease on that date, the commission held that Hawks was barred from any benefits "resulting from his occupational lung disease or from symptomatic manifestations of such lung disease including bronchitis which may follow as incidents of occupational disease."

Code § 65.1-52 provides that the right to compensation for occupational diseases (other than coal miner's pneumoconiosis, byssinosis or asbestosis) shall be forever barred unless a claim is filed within two years after a diagnosis of the disease is first communicated to the employee. The filing requirement is jurisdictional, Musick v. Codell Construction Co., 4 Va.App 471, 473, 358 S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co, 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)), and cannot be satisfied by mere consent or stipulation of the parties. Stuart Circle Hospital v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 447 (1982). Moreover, the burden is upon the claimant to prove compliance with the statute. Anderson, 214 Va. at 675, 204 S.E.2d at 258. It follows, therefore, that the parties' stipulation at the evidentiary hearing that diagnosis and communication of occupational disease first occurred in November, 1986 is not determinative of when the limitation period began to run.

We must therefore consider whether the full commission erred in finding that Dr. Radow's March 23, 1984, letter contained a positive diagnosis of occupational disease. The school board correctly points out that Kiser v. Clinchfield Coal Co., 225 Va. 357, 302 S.E.2d 44 (1983), which contained a communication similar to the one at issue here, controls the disposition of this case. In Kiser, the claimant testified that "nine or maybe ten years ago" his doctor informed him "you've got a little [black lung]," but "you don't have the first stage yet." Id. at 359, 302 S.E.2d at 45. The claimant was also told at that time that "[t]here is no use in filing now ... but keep taking x-rays and keep a check at it." Id. The Supreme Court held that according to the plain language of the statute, the limitation period began to run upon communication that a work related disease existed, regardless of its severity or compensability. Id. at 360, 302 S.E.2d at 46. The claimant was required to file even if the claim would have been dismissed as not yet compensable. Id. at 360, 302 S.E.2d at 45; see also Anderson v. Clinchfield Coal Co., 214 Va. at 675, 204 S.E.2d at 258 (claimant who received conflicting diagnoses was obligated to file even if his claim would have been dismissed due to conflicting medical testimony); Parris v. Appalachian Power...