Paramont Coal Co. v. Vanover, Record No. 1658-17-3

• Citation: Record No. 1658-17-3
• Case Date: April 17, 2018
• Court: Court of Appeals of Virginia

PARAMONT COAL COMPANY VIRGINIA, LLC AND
SUMMIT POINT INSURANCE COMPANY
v.
CARSON VANOVER

Record No. 1658-17-3

COURT OF APPEALS OF VIRGINIA

APRIL 17, 2018

UNPUBLISHED

Present: Judges Alston, Chafin and Malveaux
Argued at Salem, Virginia

MEMORANDUM OPINION^* BY JUDGE ROSSIE D. ALSTON, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Timothy W. Gresham (Kendra R. Prince; Penn, Stuart & Eskridge, on brief), for appellant.

Paul L. Phipps (Paul L. Phipps, P.C., on brief), for appellee.

Paramont Coal Company Virginia, LLC (appellant) argues that the Workers' Compensation Commission (Commission) erred when it awarded permanent total disability benefits to Carson Vanover (appellee). Appellant specifically contends that appellee failed to provide sufficient evidence demonstrating that he suffered from sufficient pulmonary function loss pursuant to Code § 65.2-504(A)(4). Ultimately, appellant's argument amounts to an issue of statutory interpretation. We disagree with appellant's interpretation and affirm the Commission's award.

BACKGROUND

Appellee, currently employed by appellant, was notified that he was diagnosed with coal workers' pneumoconiosis on April 13, 2015. The diagnosis was based on Dr. Kathleen DePonte's examination of a March 20, 2015 x-ray. Prior to that notification, appellee

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"completed more than 90 shifts" and "was exposed to coal mine dust" while employed by appellant. The uncontroverted evidence was that appellee had been a coal miner for fifty years. Appellee filed a claim for benefits under the Workers' Compensation Act (Act) on May 5, 2015 requesting staged benefits and lifetime benefits. The deputy commissioner designated to hear the matter resolved the claim based on the stipulations submitted. The issue before the deputy commissioner was whether appellee established that he has "the occupational disease of coal workers' pneumoconiosis and, if so, to what extent." The deputy commissioner opined that appellee "contracted a compensable occupational disease as a consequence of his exposure to coal dust while working for [appellant.]" The deputy commissioner further found that appellee qualified for stage three benefits pursuant to Code § 65.2-504(A)(3). This determination was supported by the findings of the Pulmonary Committee and three other doctors. In this regard, appellee's "x-ray show[ed] the presence of abnormalities consistent with coal workers' pneumoconiosis that has advanced" to the requisite extent; Category A large opacities were discovered. The deputy commissioner noted the contrary findings of three other doctors. The deputy commissioner explained that even though contrary opinions existed, the findings of the Pulmonary Committee and the first set of three doctors satisfied the preponderance standard. Thus, appellee was awarded stage three benefits commencing April 13, 2015 for 300 weeks and medical benefits for as long as necessary to treat his coal workers' pneumoconiosis.

Subsequently, appellee then filed a claim alleging a change in condition and sought permanent total disability. Regarding this claim, Deputy Commissioner Wise requested written statements from the parties on the interpretation of Code § 65.2-504(A)(4). In those statements, appellee advanced a disjunctive reading of the statute pursuant to Flanary v. Moose Coal Co., 76 O.W.C. 119 (1997), and appellant advanced a conjunctive reading of the statute pursuant to subsequent Commission opinions. Wise resolved the claim based on the stipulations and

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statements submitted. Wise noted the conflicting interpretations and opined that the statute was to be read in the conjunctive. And according to the medical evidence, Wise found that appellee established that "he has coal workers' pneumoconiosis medically determined to be a Category A large opacity under the I.L.O. classification, that he obtained a restriction from work in a mine or dusty environment, and that he is in fact, not presently working." The remaining element to be established was whether appellee demonstrated "sufficient pulmonary function loss as shown by approved medical tests and standards to render him unable to do manual labor in a dusty environment." After reviewing the medical evidence, Wise concluded that appellee did not establish such loss and denied his claim.

Appellee filed a request for review by the full Commission. The Commission ordered appellee to file a written statement and appellant to file a responsive statement. The parties complied, setting forth the same arguments submitted to Wise. In its review opinion, the Commission overruled their opinions post-dating Flanary and applied the interpretation propounded in that opinion. The Commission indicated it must adhere to the plain language of the statute. The Commission concluded that the statute states the elements in the disjunctive with its use of "or," and there was no indication the legislature intended "or" to be read conjunctively. Appellee was also required to establish that he was "instructed by competent medical authority not to attempt to do work in any mine or dusty environment and [that] he is in fact not working" due to the placement of the conjunctive "and" prior to that text. Therefore, according to the Commission, to qualify for lifetime benefits under Code § 65.2-504(A)(4), appellee must prove one of the following:

(1) he suffers from coal workers' pneumoconiosis medically determined to be A, B, or C under the I.L.O. classifications, and he has been instructed not to work in a mine or dusty environment by competent medical authority, and he is not working,
or (2) he suffers from coal workers' pneumoconiosis involving progressive massive fibrosis, and he has been instructed not to

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work in a mine or dusty environment by competent medical authority, and he is not working,
or (3) there is sufficient pulmonary function loss as shown by approved medical tests and standards to render him unable to perform manual labor in a dusty environment, and he has been instructed not to work in a mine or dusty environment by competent

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