Pocahontas Fuel Co. v. Agee

• Decision Date: 07 March 1960
• Docket Number: No. 5047,5047
• Citation: 201 Va. 678,112 S.E.2d 835
• Parties: POCAHONTAS FUEL COMPANY, INC. v. CLINTON WILLARD AGEE. Record
• Court: Virginia Supreme Court

Page 835

112 S.E.2d 835

201 Va. 678

POCAHONTAS FUEL COMPANY, INC. v. CLINTON WILLARD AGEE.

Record No. 5047.

Supreme Court of Appeals of Virginia

March 7, 1960.

John W. Gillespie, for the appellant.

David T. Kennedy, for the appellee.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

The principal question presented is whether the evidence justified the Industrial Commission in finding that claimant had suffered total incapacity for work from silicosis, the occupational disease with which he was afflicted.

The evidence was presented to a hearing commissioner who found that claimant had sustained a total wage loss as a result of an occupational disease contracted while in the employ of the company. Although he found that claimant had suffered partial physical disability, yet he determined that the partial physical disability resulting from the second stage silicosis with which Agee was afflicted had barred claimant from employment in the only field of labor in which he was trained and qualified to work. Claimant was awarded compensation benefits under § 65-51, Code 1950, as amended, on the basis of total incapacity for work resulting from the disease, to continue for the statutory period unless subsequent conditions justified a modification. The company appealed and asked for a review before the full Commission, but upon review the hearing commissioner's findings of fact and conclusions of law were adhered to and affirmed by unanimous decision.

It is not denied that claimant contracted silicosis while in the employ of the company, and it is conceded that the malady from which he suffered has been diagnosed as second stage silicosis and that he has suffered partial physical incapacity, but the company insists that the evidence does not show that claimant has suffered incapacity for work -- partial or total -- because of the malady.

Summarized the evidence follows:

Clinton Willard Agee was forty-seven years of age when the hearing was held on January 5, 1959. He had a seventh grade education and had no training or experience in any work other than coal mining. He had been employed by the company for twenty-nine years in various mines that it operated until he was laid off on October 30, 1957, from his work when the company shut down its Boissevain mine. During the twenty-nine years he had worked as a roof bolter and coal loader. He testified that when the Boissevain mine shut down, he was ready to work anywhere he could find a job. When laid off, he did not know that he had silicosis, and he tried to obtain employment at three other mines operated by the company at different locations, but was refused employment because he was not on the panel at any of those mines.

While working in the mines claimant was exposed to silica dust, and he became quite short-winded upon little physical exertion, had pains through his chest and occasionally in his back. In the morning he coughed considerably and suffered with a dry cough the balance of the day. Shortly before September 15, 1958, Agee visited Dr. Porter and on his advice claimant had x-rays and a physical examination made at Clinch Valley Hospital, Richlands, Virginia. The report of Dr. J. A. Robinson, dated October 8, 1958, stated that Agee had an early stage silicosis. Further examination was made of claimant at Beckley Memorial Hospital, Beckley, W. Va., and the report of Dr. Richard G. Starr of that institution under date of October 27, 1958, gave a final diagnosis of '1) Pulmonary fibrosis, on the basis of occupational pneumoconiosis, probably silicosis. 2) Pulmonary emphysema, moderately severe.

'The pulmonary disease in this man is definitely symptomatic and feel he is partially disabled from it. I am not familiar with the classification in your state but would feel that he would have a partial disability between 33-1/3 and 50%. I also do not feel that he would be an unsuitable candidate for re-employment in the mining industry.'

From an x-ray examination Dr. W. E. Copenhaver diagnosed claimant as having a first stage silicosis and a 10 per cent permanent disability. He, however, said that it was impossible to get a true disability estimate without clinical evaluation from a radiological standpoint.

While presenting the...