Tomes v. James City (County of) Fire

• Decision Date: 17 December 2002
• Docket Number: Record No. 2450-01-4.
• Citation: 573 S.E.2d 312,39 Va. App. 424
• Parties: Melvin H. TOMES, Jr. v. JAMES CITY (COUNTY OF) FIRE and Virginia Mutual Group Self-Insurance Association.
• Court: Virginia Court of Appeals

573 S.E.2d 312

39 Va. App. 424

Melvin H. TOMES, Jr. v. JAMES CITY (COUNTY OF) FIRE and Virginia Mutual Group Self-Insurance Association.

Record No. 2450-01-4.

Court of Appeals of Virginia, Alexandria.

December 17, 2002.

Michael A. Kernbach (Burgess, Locklin, Kernbach & Perigard, on brief), Fairfax, for appellant.

Ralph L. Whitt, Jr. (Whitt & Associates, on brief), Glen Allen, for appellees.

Present: FITZPATRICK, C.J., FRANK and CLEMENTS, JJ.

JEAN HARRISON CLEMENTS, Judge.

Melvin H. Tomes, Jr., (claimant) appeals a decision of the Workers' Compensation Commission (commission) denying his October 7, 1997 and June 7, 2000 and claims for benefits under Code § 65.2-402(A). The commission ruled both claims were for the same lung condition, which claimant, because he was not entitled to the benefit of the presumption in Code § 65.2-402, failed to prove was a compensable occupational disease. We hold the commission did not err in denying claimant's October 7, 1997 claim but did err in denying his June 7, 2000 claim. Accordingly, we affirm the commission's decision in part and reverse it in part.

I. BACKGROUND

The relevant facts in this case are not in dispute. On October 30, 1995, Dr. Thomas L. Munzel diagnosed claimant, who had worked as a firefighter with the James City County Fire Department since June of 1976, as having "virtually reversible obstruction," which, according to Dr. Munzel, was essentially a mild asthma variant of "adult onset reversible obstructive airways disease."

Based on that diagnosis, claimant filed a claim for benefits, with the commission on November 14, 1995, for "virtually reversible obstruction" disease with a date of communication of October 30, 1995. Although he sought no specific benefits, claimant filed the claim to "have [it] on the record for [the] future." Claimant withdrew the claim on May 2, 1996, but timely refiled it on October 7, 1997. In refiling the claim, claimant specifically indicated he had "not missed any work at [that] time." Rather, he simply wanted to have his claim "on [the] record for [the] future." On June 7, 2000, claimant notified the commission that he sought payment of his medical bills related to the virtually reversible obstructive disease communicated to him by Dr. Munzel on October 30, 1995. Claimant received treatment from Dr. Munzel for his asthma from 1995 to 1999 but did not miss work or have any work restrictions imposed on him during that period. However, in early 2000, after working at a fire in December of 1999, claimant's progressively worsening lung condition became disabling. On February 7, 2000, Dr. Munzel, having diagnosed claimant's pulmonary condition as irreversible chronic obstructive pulmonary disease and acute exacerbation of his asthma directed that claimant not return to work as an active firefighter for at least two months. Dr. Munzel explained that claimant was disabled from working .as an active firefighter at the time "due to his asthma," which was "clearly exacerbated by the fire fighting." From that point on, claimant never returned to work in an unrestricted capacity. In December of 2000, Dr. Munzel testified claimant had "continued to be disabled due to his asthma" and would never be able to actively fight fires again.

On June 7, 2000, claimant filed a claim for benefits alleging "Chronic obstructive pulmonary disease (COPD)/small airways disease/asthma" with a date of communication of February 7, 2000. In filing that claim, claimant sought disability and medical benefits for the period beginning February 7, 2000.

On January 16, 2001, the deputy commissioner conducted a hearing on claimant's October 7, 1997 and June 7, 2000 claims. As the deputy commissioner noted, claimant was seeking "payment of medical bills from Dr. Munzel and related diagnostic studies commencing 1995 through the present" on the October 7, 1997 claim and temporary total and partial disability benefits on the June 7, 2000 claim. James City County Fire and its insurer Virginia Municipal Group Self-Insurance Association. (collectively, employer) defended those claims, in part, on the grounds that they were barred by the applicable two-year statute of limitations because both claims were for the same disease, which was first communicated on October 30, 1995, and claimant sustained no disability until February 7, 2000. Employer stipulated, however, that, if the commission found the claim based on the October 30, 1995 date of communication and the claim based on the February 7, 2000 date of communication were separate claims based on separate diseases, it could not overcome the presumption in Code § 65.2-402 as to the June 7, 2000 claim.

The deputy commissioner denied claimant's October 7, 1997 claim, ruling the presumption in Code § 65.2-402 was not applicable to that claim because claimant suffered no partial or total disability "as a result of [the] October 30, 1995 date of communication." Without benefit of that presumption, the deputy commissioner continued, claimant was unable to prove he had sustained a compensable occupational disease.¹

However, the deputy commissioner granted claimant's June 7, 2000 claim, ruling it was a separate claim, distinct from the October 7, 1997 claim. Applying employer's stipulation that it did not have sufficient evidence to overcome the presumption in Code § 65.2-402 with regard to the June 7, 2000 claim, the deputy commissioner concluded claimant had proven a compensable occupational respiratory disease first communicated to claimant on February 7, 2000.

Upon review, a majority of the full commission affirmed the deputy commissioner's denial of the October 7, 1997 claim and reversed the deputy commissioner's decision with respect to the June 7, 2000 claim.² The commission agreed with the deputy commissioner that, as to the respiratory disease first communicated to claimant on October 30, 1995, claimant did not qualify for the presumption of Code § 65.2-402 and that, "[w]ithout the benefit of the presumption, the evidence [did] not establish a compensable occupational disease." With regard to claimant's latter claim, the commission stated:

The [June 7, 2000] claim ... is dismissed. That claim was for a lung condition initially diagnosed on October 30, 1995, which had worsened. This is not a separate claim for a separate disease. Rather, in the second claim, the claimant seeks disability benefits beyond the running of the statute of limitations for his lung condition, which we find is not compensable.

II. ANALYSIS

On appeal, we view the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). If supported by credible evidence, the factual findings of the commission are binding on appeal. Code § 65.2-706(A); Fairfax Hospital v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980). However, "we review questions of law de novo," Rusty's Welding Serv. v. Gibson, 29 Va.App. 119, 127, 510 S.E.2d 255, 259 (1999)

(en bane), ever mindful that, "[w]hile the provisions of the Virginia [Workers' Compensation] Act are to be liberally construed to see that its benefits are awarded to injured employees, that principle [neither] authorize[s] the courts to amend, alter or extend its provisions, nor ... require[s] that every claim asserted be allowed," Bowden v. Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683, 688, 401 S.E.2d 884, 887 (1991). While we generally give great weight and deference, on appeal, to the commission's construction of the Workers' Compensation Act, we are "`not bound by the commission's legal analysis in this or prior cases.'" Peacock v. Browning Ferris, Inc., 38 Va.App. 241, 248, 563 S.E.2d 368, 372 (2002) (quoting USAir, Inc. v. Joyce, 27 Va.App. 184, 189 n. 1, 497 S.E.2d 904, 906 n. 1 (1998)), appeal filed, No. 021766 (July 29, 2002).

As relevant to the facts of this case, Code § 65.2-406(A)(5) provides that the right to compensation for occupational diseases shall be forever barred unless a claim is filed within two years after a diagnosis of the disease is first communicated to the employee. Hence, "once an employee receives a communication of an occupational disease, it is incumbent upon him to file a claim" within two years of that communication. Parris v. Appalachian Power Co., 2 Va.App. 219, 225-26, 343 S.E.2d 455, 458-59 (1986) (footnote omitted). "[I]f 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 barred from filing a later claim based on a later diagnosis." Id. at 225, 343 S.E.2d at 458 (citing Anderson v. Clinchfield Coal Co., 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "Once a claim is filed, it is the duty of the Commission to determine: (1) whether the disease is in fact an `occupational disease' as defined in Code § 65.1-46 [now Code § 65.2-400], and if so, (2) whether that occupational disease is compensable." Id. at 226, 343 S.E.2d at 459 (footnote omitted).

In this case, claimant acted appropriately upon receiving a communication of a possible occupational disease from Dr. Munzel. Once Dr. Munzel diagnosed him with virtually reversible obstruction on October 30, 1995, claimant, after withdrawing an earlier claim, filed a timely claim for virtually reversible obstruction with the commission on October 7, 1997. Hence, it then became the commission's duty to determine whether the claimant's disease was an occupational disease, and if so, whether that occupational disease was compensable.

In fulfillment of that duty, the deputy commissioner, after conducting a hearing on claimant's October 7, 1997 claim on January 16, 2001, denied the claim, concluding that claimant had failed to prove the disease upon which that claim was based was a compensable occupational disease. In reaching that conclusion, the deputy commissioner held the...