Parris v. Appalachian Power Co., 0691-85

• Decision Date: 06 May 1986
• Docket Number: No. 0691-85,0691-85
• Citation: 343 S.E.2d 455,2 Va.App. 219
• Parties: Verlin R. PARRIS v. APPALACHIAN POWER COMPANY. Record
• Court: Virginia Court of Appeals

Page 455

343 S.E.2d 455

2 Va.App. 219

Verlin R. PARRIS v. APPALACHIAN POWER COMPANY.

Record No. 0691-85.

Court of Appeals of Virginia.

May 6, 1986.

Robert A. Vinyard, Abingdon, for appellant.

William B. Poff (James W. Jennings, Jr., D. Stan Barnhill, Woods, Rogers & Hazelgrove, Roanoke, on brief), for appellee.

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

KOONTZ, Chief Judge.

Verlin R. Parris (Parris) appeals from an Industrial Commission decision which held that his claim for benefits due to occupational related asbestosis was barred. The Commission determined that Appalachian Power Company (Appalachian) had acquired a vested right in a prior final adjudication. We affirm on other grounds.

Parris was employed by Appalachian for over thirty years. For twenty-five of those years, Parris' job consisted of maintenance work on Appalachian's fleet of motor vehicles. His duties included changing and cleaning clutches and brakes, many of which were made from asbestos. Parris retired on October 22, 1975.

Parris received a diagnosis of asbestosis in June of 1981. Based on this diagnosis, he filed a claim with the Commission in August of that year. The deputy commissioner, by decision dated February 19, 1982, held that Parris failed to show a causal relation between his lung condition and the conditions of his work place, and further noted that Parris' lung condition could have been caused by cigarette smoking alone. Parris appealed to the full Commission. On April 13, 1982, the Commission affirmed the deputy's decision due to the lack of evidence in Parris' favor. In addition, the Commission held that the claim was barred by the five year provision of the statute of limitations which was then contained in Code § 65.1-52. ¹ Subsequently, the Supreme Court refused to hear Parris' petition for appeal.

Effective July 1, 1983, Code § 65.1-52 was amended. ² The prior statute required the filing of a claim within five years from the date of the last employment, or within two years after a diagnosis of an occupational disease was first communicated to the employee, whichever occurred first. The new statute removed the five year provision and merely requires filing within two years after a diagnosis of asbestosis is first communicated to the employee. The deletion of the five year limitation recognized that asbestosis is a progressive disease which may manifest itself many years after the cessation of employment and beyond the five year period.

In the latter half of 1983, Parris was seen by Dr. Joseph Smiddy. Dr. Smiddy made an unequivocal finding that Parris was suffering from asbestosis as a result of his work history. A claim based on Dr. Smiddy's report was filed on October 11, 1983. In a hearing before the deputy commissioner, Parris asked for benefits under Code § 65.1-54, compensation for total incapacity. The deputy commissioner found for Parris, and ordered that temporary total incapacity benefits be paid. Appalachian appealed to the full Commission. The Commission remanded the case to the deputy commissioner to determine the stage of Parris' disease under Code § 65.1-56(20). X-rays were then submitted to and read by numerous doctors. Thereafter, the deputy commissioner awarded Parris first stage asbestosis benefits. Appalachian again appealed to the full Commission. The Commission found that the evidence preponderated in proving that Parris had contracted occupational asbestosis from his exposure to asbestos during his long employment with Appalachian and that Parris had first stage asbestosis as delineated in Code § 65.1-56(20)(a). However, the Commission reversed the deputy commissioner on the ground that "the parties' rights with respect to the issue of limitation of action have been finally adjudicated and the claimant was held to be barred. The right to a final determination was vested in the employer." The Commission stated that had the case (first claim by Parris in 1981) not been denied on the ground of limitation of action, the amended statute (Code § 65.1-52) would apply. Parris appeals from this decision.

The parties present four issues which merit our consideration:

(1) Does the doctrine of res judicata prohibit Parris from litigating the causation issue in this case?

(2) Is Parris barred from bringing the instant claim under the post-July 1, 1983, version of Code § 65.1-52?

(3) Is Parris' October 1983 claim barred because of the prior adjudication that the statute of limitations had run on Parris' 1981 claim?

(4) Aside from the prior judgment in Appalachian's favor, did Appalachian acquire a vested right in the running of the limitation period contained in the pre-July 1, 1983, version of Code § 65.1-52?

The holdings in four prior cases are crucial to our determination and, therefore, we review them in some detail at this point.

In Anderson v. Clinchfield Coal Co., 214 Va. 674, 204 S.E.2d 257 (1974), Anderson first received a communication of occupational pneumoconiosis from his family physician on October 22, 1966. Subsequent visits to other physicians did not result in a concurrence in the family physician's diagnosis. A return visit to the family physician resulted in a second diagnosis of occupational pneumoconiosis. Anderson did not file a claim, however, until March 20, 1972, basing the claim on a third diagnosis made by the family physician on September 14, 1971. Examinations by other physicians confirmed the 1971 diagnosis.

The Commission dismissed Anderson's claim for lack of jurisdiction, and the Supreme Court affirmed. The applicable statute of limitations required a claim to be filed within one year after a diagnosis of the occupational disease was first communicated to the employee. Anderson, having first received a diagnosis in 1966, was required to file a claim within one year of that diagnosis. Having not done so, his 1972 claim was appropriately dismissed. It mattered not whether the evidence in regard to the 1966 diagnosis was in such conflict that any claim based on that diagnosis would have been dismissed. That was a matter for the Commission, not Anderson, to determine.

In Cook v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d 263 (1975), Cook first received a diagnosis of occupational pneumoconiosis in 1968. He timely filed a claim based on that diagnosis. This 1968 claim was dismissed "because the medical evidence did not prove the existence of an occupational disease." Id. at 600, 212 S.E.2d at 264. In 1973, Cook received another diagnosis of occupational pneumoconiosis, and timely filed a claim. The Supreme Court, in reversing the Commission, held that Cook was not barred from filing his 1973 claim. The Court stated that:

The record shows that claimant's 1968 application was dismissed by the deputy commissioner because the medical evidence at the hearing before him failed to disclose the existence of any occupational disease. Since claimant could not prove his 1968 claim by medical evidence before the deputy commissioner, he was not barred from filing his second claim when he obtained a positive diagnosis on June 13, 1973, that he had pneumoconiosis.

Id.

Hale v. Clinchfield Coal Co., 59 O.I.C. 112 (1981), centered on the question of compensability of a claim based on a diagnosis of an occupational disease. Hale received a diagnosis of employment-related hearing loss on May 10, 1975, and timely filed a claim on that basis. The Commission, applying a table for rating hearing loss, concluded that Hale's hearing loss was so minor at that point that it was not included on the table to the extent that it would be compensable. In 1980, Hale received a second diagnosis of occupational hearing loss which had become more severe at that time. The Commission entered an award for Hale, finding that his 1980 claim was not barred because the evidence relating to the 1975 claim did not show a compensable hearing loss at that time. The Commission held "that the Statute of Limitations did not commence to run against [the 1980] claim until the date of diagnosis and communication of a compensable occupational disease, on April 7, 1980." Id. at 113.

In Kiser v. Clinchfield Coal Co., 225 Va. 357, 302 S.E.2d 44 (1983), the Commission and the Supreme Court were confronted with a factual situation similar to that in Anderson v. Clinchfield Coal Co. In the early 1970's, Kiser was seen by a physician who communicated a diagnosis of coal worker's pneumoconiosis, but told Kiser that the disease had not yet reached "the compensable" stage. As a result, Kiser failed to act on this diagnosis. In 1981, he again received a diagnosis of pneumoconiosis, and filed a claim on that basis. The Supreme Court, citing Anderson, held that Kiser's 1981 claim was barred. The Court stated that "[t]he question of compensability was for the Commission to decide, not the claimant or his physician." Kiser, 225 Va. at 360, 302 S.E.2d at 45.

The Court distinguished Kiser from Hale v. Clinchfield Coal Co. as follows: "The April 7, 1980 diagnosis in Hale was of a compensable hearing loss. In addition, Hale earlier had received a 1975 diagnosis of minimal hearing loss and had filed a timely claim, which the Commission ruled in 1978 was noncompensable. Kiser should have followed the same course here." Kiser, 225 Va. at 360, 302 S.E.2d at 46. (emphasis added).

It is necessary to reconcile the holdings in these four cases before addressing the issues in the instant case. Cook makes it clear that if an employee receives a communication of a diagnosis of an occupational disease, timely files a claim on that basis, and loses because the evidence does not show the existence of an occupational disease, then he is not barred from filing a second claim after receiving a second diagnosis. In contrast, Anderson holds that if an employee receives a communication of a diagnosis of an occupational disease, and does not act on that communication prior to the running of the statute of limitations, then he is...