McPeek v. P. W. & W. Coal Co.

• Decision Date: 05 September 1969
• Citation: 210 Va. 185,169 S.E.2d 443
• Court: Virginia Supreme Court
• Parties: Emmett McPEEK v. P. W. & W. COAL COMPANY, Inc., et al.

Page 443

169 S.E.2d 443

210 Va. 185

Emmett McPEEK v. P. W. & W. COAL COMPANY, Inc., et al.

Supreme Court of Appeals of Virginia.

Sept. 5, 1969.

George C. Sutherland, Clintwood, for appellant.

Henry C. Johnson, Roanoke, Eugene K. Street, Grundy (H. A. Street, Street, Street & McGlothlin, Grundy, on brief), for appellees.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON CARRICO, GORDON and HARRISON, JJ.

CARRICO, Justice.

On April 21, 1966, Emmett McPeek, the claimant, filed with the Industrial Commission of Virginia an application for compensation alleging that he was totally disabled by reason of 'silicosis in second or third stage' contracted while in the employ of P. W. & W. Coal Company, Inc., the employer. On November 23, 1966, the Commission, following a hearing, awarded the claimant compensation of $39.00 per week for 26 weeks from November 30, 1965, 'on account of silicosis medically determined to be in the first stage.' The award was paid as ordered.

On May 25, 1967, the claimant filed a new application alleging a change in his condition and asking for a review of the earlier award. ¹ A hearing was held by Deputy Commissioner Rushbrooke who ruled that the application should be dismissed because the claimant had failed to prove a change in condition. This ruling was affirmed by the full Commission, and the claimant was granted an appeal.

The evidence before the Commission at the first hearing showed that the claimant had worked in coal mines for many years. In 1961, he went to work for P. W. & W. Coal Company, Inc., and while in that employment was injuriously exposed to the causative hazards of silicosis. On November 30, 1965, he was diagnosed by a doctor as having silicosis and was told 'to quit work.'

The medical evidence before the Commission at the first hearing was in conflict. The physicians employed by the claimant reported that he was suffering from second stage silicosis and was unable to work. The doctors employed by the insurance carrier of the employer reported that the claimant did not have silicosis but was suffering from emphysema, causing 'a 15% Decreased capacity to do physical work.' In view of the medical conflict, the Commission appointed a specialist in pulmonary disease to examine the X-ray films upon which the opinions of the other doctors had been based. The specialist reported that the claimant had 'stage I silicosis.' The Commission's finding of first stage silicosis and the award of compensation for 26 weeks followed.

At the second hearing, one of the physicians employed by the claimant reported that the latter was suffering from 'Late 2nd and Early 3rd Stage Silicosis,' and another reported that the disease had 'advanced to early 3rd stage.' The physicians employed by the insurance carrier reiterated their view that the claimant did not have silicosis. The carrier also submitted written opinions of an internist and of a roentgenologist who had studied X-ray films of the claimant and who reported that there had been no change in the claimant's condition since the time of the first hearing.

In dismissing the claimant's application for review, the Commission ruled that to show a change in condition, Code § 65--53(20) ² (now Code § 65.1--56(20)) required the claimant to prove by medical evidence that the silicosis from which he suffered had 'progressed to a stage greater than first stage for which compensation was previously awarded.' The Commission concluded that the medical evidence before it 'overwhelmingly' demonstrated that there had been no such change in the claimant's occupational disease since the first hearing.

The claimant contends that the Commission erred at the second hearing in placing upon him the burden of showing that the silicosis from which he suffered had advanced beyond first stage and in requiring him to prove such change by medical evidence. The claimant says that medical evidence was unnecessary and that his own testimony to the effect he was totally disabled was sufficient to justify an award of compensation based upon a change in condition.

However, at the opening of the second hearing, the claimant agreed that the change in condition upon which he relied was that he had 'developed a greater stage of silicosis from that for which he was previously compensated.' Thus, the claimant recognized and accepted the proposition that he was entitled to an additional award only if his condition had changed because his silicosis had advanced beyond the first stage. He had the burden of establishing that change. Jones Construction Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204 (1956).

And Code § 65--53(20) (now Code § 65.1--56(20)) makes clear that each stage of silicosis must be 'medically determined.' Therefore, the burden of proof upon the claimant required him to establish by medical evidence the progression of...