Penley v. Island Creek Coal Co.
| Decision Date | 06 June 1989 |
| Docket Number | No. 0666-88-3,0666-88-3 |
| Citation | 8 Va.App. 310,381 S.E.2d 231 |
| Parties | Issac PENLEY v. ISLAND CREEK COAL COMPANY. Record |
| Court | Virginia Court of Appeals |
Jerry O. Talton, for appellant.
Michael F. Blair (Penn, Stuart, Eskridge & Jones, Abingdon, on brief), for appellee.
Present: BENTON, COLEMAN and DUFF, JJ.
On this appeal Issac Penley asserts that the commission erroneously concluded that his evidence failed to prove coal worker's pneumoconiosis. He contends that Code § 65.1-56.1 required the commission to conclude that he had coal worker's pneumoconiosis because he proved both injurious exposure to coal dust and the existence of opacities in his lung that are characteristic of some type of pneumoconiosis. 1 He further contends that the commission's pneumoconiosis guide is outdated because it was adopted for use in connection with Code § 65.1-56 and is inconsistent with Code § 65.1-56.1. 2 For the reasons that follow we reverse the commission's decision and remand this case for further proceedings.
Coal worker's pneumoconiosis is a disease of the lung that results from the accumulation of coal dust in the lungs. Consolidation Coal Co. v. Chubb, 741 F.2d 968, 970-71 (7th Cir.1984); 1B A. Larson, Workmen's Compensation Law, § 41.91(a) (1987). It can be diagnosed by a qualified physician through interpretation of radiographic images of the lungs. See Chubb, 741 F.2d at 971-74. Dr. N. LeRoy Lapp, the author of numerous publications on the topic of lung disease, has described the radiology of coal worker's pneumoconiosis in the following concise, understandable terms:
Simple [coal worker's pneumoconiosis] is classified into categories 1, 2, and 3 according to the profusion (number per unit area) of small rounded opacities (shadows or nodules) in the lung fields of a radiograph of the chest. When the number of small opacities is insufficient to make a diagnosis of category 1, the file is classified as category 0 or negative ("normal"). The International Labour Organization (ILO) made the first attempt to codify the interpretations of chest radiographs for pneumoconiosis in 1958. This was followed by a scheme devising a twelve-point elaboration of the ILO classification system that rendered it more sensitive for the purpose of reading radiographic progression. In this latter study, each major category, including zero, was divided into three subcategories, so that in the full elaboration there were 12 categories ranging from 0/- to 3/4.
For example, when a radiograph is being classified and the reader initially considers category 1, but eventually decides there are too few opacities, causing the correct classification to be category 0, then the classification of that radiograph is 0/1. The same applies to categories 1/2, 2/1, 2/3, 3/2 and 3/4. The numerator represents the category in which the film is placed, and the denominator represents the category that was also considered. If the interpretor does not consider any other category but the one in which he places it, then the film is classified as 1/1, 2/2, or 3/3.
Small opacities are also classified as to whether they are regular (rounded) or irregular (linear, reticular). The regular or rounded opacities are primarily seen on the radiographs of coal miners. The regular opacities are classified according to size, pinhead (p), ranging up to 1.5 mm. in diameter, micronodular (q), ranging from 1.5 to 3.0 mm. in diameter and nodular (r) ranging from 3.0 to 10.0 mm. in diameter. Irregular opacities are commonly seen in asbestosis and certain other interstitial reactions but are infrequent among coal miners. When present among coal miners, these irregular opacities relate more to cigarette smoking than to dust retention. The irregular opacities are also classified by size into (s), up to 1.5 mm., (t) between 1.5 and 3.0 mm., and (u) between 3.0 and 10.0 mm. in width, according to the latest classification scheme.
Lapp, A Lawyer's Medical Guide to Black Lung Litigation, 83 W.Va.L.Rev. 721, 729-31 (1981) (footnotes omitted). When the reader of a radiograph finds mixed shapes (or sizes) of small opacities, "the predominant shape and size is recorded first [and] [t]he presence of a significant number of another shape and size is recorded after the oblique stroke." Department of Labor, Criteria for Use of ILO 1980 International Classification of Radiographs of the Pneumoconiosis.
Issac Penley was employed as a coal miner by Island Creek Coal Company for approximately 28 years. Penley was first notified by Dr. J.P. Sutherland that a radiograph revealed "opacities in all six lung zones read by us according to the New ILO-80 Classification as 2/3 p Pneumoconiosis." Sixteen additional physicians interpreted the radiograph and submitted their diagnoses to the commission. Of the sixteen interpretations, the reports of seven unrelated physicians, Drs. DeRamos, Brandon, Fisher, Sutherland, Penman, Modi, and Aycoth, contained positive diagnoses of pneumoconiosis. 3 Drs. Wershba, Gogineni, Nichols, Binns and Duncan, all of Kanawa Valley Radiologists, Inc., each reported "no evidence of occupational pneumoconiosis." Dr. Zaldivar also reported that the radiograph showed neither "pleural [nor] parenchymal abnormalities consistent with pneumoconiosis." Drs. Gaziano, Castle, Hippensteel and Stewart all identified "parenchymal abnormalities consistent with pneumoconiosis." 4
Based on this evidence, the deputy commissioner found that Dr. Sutherland and six other doctors diagnosed "positive for Stage 1 coal workers' pneumoconiosis," that five other doctors diagnosed "negative for occupational disease," and that Drs. Gaziano, Castle, Hippensteel, and Stewart made diagnoses "consistent with coal workers' pneumoconiosis, however, their findings are below those required for Stage 1." Upon those findings the deputy commissioner concluded that Penley established by "a preponderance of the evidence ... Stage 1 coal workers' pneumoconiosis" and awarded permanent partial disability benefits. Reversing the deputy's decision, the full commission concluded "that Dr. Castle, Dr. Gaziano, Dr. Hippensteel and Dr. Stewart's interpretations are negative findings, so [Penley] has not carried the burden of proof by a preponderance of the evidence." In arriving at this conclusion, the commission stated: The "s" opacities are generally fine irregular or linear and not characteristic of coal workers' pneumoconiosis. The same comments apply to the "t" opacities which are somewhat larger than "s." "Q" opacities are indicative of coal workers' pneumoconiosis. Drs. Castle and Gaziano reported a profusion of opacities which are not indicative of coal workers' pneumoconiosis. Drs. Hippensteel and Stewart reported some opacities indicative of coal workers' pneumoconiosis, i.e., those identified as "q" and some which were not, i.e., those identified as "t", but the profusion was not sufficient to establish coal workers' pneumoconiosis and, thus, the reading 0/1.
Code § 65.1-56.1 mandates that, "[n]otwithstanding any other provisions in this Act, ... any employee having a claim for coal worker's pneumoconiosis benefits shall be compensated" according to the "category" of the disease as scheduled in the statute. In addition, the statute requires the commission to conclusively presume coal worker's pneumoconiosis "[i]n any case where there is a question of whether a claimant with pneumoconiosis is suffering from coal worker's pneumoconiosis or from some other type of pneumoconiosis" and where that claimant has been "injurious[ly] exposure[d] to coal dust." Penley contends that the commission erred because, in determining that he had not proved coal worker's pneumoconiosis, the commission did not give him the benefit of the conclusive presumption the General Assembly specifically enacted to address coal workers' pneumoconiosis.
Both decisions below refer to a "stage" of pneumoconiosis (the terminology of the 1971 guide and Code § 65.1-56), rather than a "category" of pneumoconiosis (the terminology of Code § 65.1-56.1). The deputy commissioner considered the varying diagnoses of the several doctors "in conjunction with the fact that [Penley] has worked approximately 28 years ... in the coal mines" and concluded that "a preponderance of the evidence establishes that [Penley] has contracted Stage 1 coal workers' pneumoconiosis." The deputy entered an award "for Stage 1 coal workers' pneumoconiosis in the amount of $326, commencing November 2, 1987, and continuing for 50 weeks" a period of time consistent with Code § 65.1-56(20)(a) first stage pneumoconiosis. On review, the full commission framed the issue raised by Island Creek as whether the "evidence establishes the presence of first stage coal workers' pneumoconiosis."
By framing the issue in terms of "stages" (the terminology of Code § 65.1-56), the commission's decision implicitly brings into question whether Code § 65.1-56.1 was considered in deciding Penley's claim. Whether the commission considered the provisions of Code § 65.1-56.1 is of significance because, unlike Code § 65.1-56, Code § 65.1-56.1 contains the presumption Penley seeks. The record contains no express indication that the commission applied Code §...
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