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NORTH BRANCH COAL COMPANY, INC. v. CORDLE


NORTH BRANCH COAL
COMPANY, INC. v. CORDLE

(unpublished)


JUNE 10, 1997
Record No. 0191-97-3

NORTH BRANCH COAL COMPANY, INC.
AND LIBERTY MUTUAL INSURANCE COMPANY

v.

GERALD W. CORDLE

Present: Judges Benton, Coleman and Willis

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(John C. Johnson; Monica L. Taylor; Gentry, Locke, Rakes &
Moore, on briefs), for appellants.

(Daniel Sachs, on brief), for appellee.


North Branch Coal Company, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that
the Workers’ Compensation Commission erred in finding that Gerald
W. Cordle did not receive a diagnosis of pneumoconiosis in 1983
sufficient to trigger the running of the applicable statute of
limitations. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. Rule
5A:27.

"Whether a diagnosis of an occupational disease was
communicated and when the communication occurred are factual
determinations to be made by the commission upon the
evidence." Uninsured Employer’s Fund v. Mounts, 24
Va. App. 550, 558, 484 S.E.2d 140, 144 (1997). The commission’s
factual findings will be upheld on appeal if supported by
credible evidence. See James v. Capitol Steel Constr.
Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). On
appeal, we view the evidence in the light most favorable to the
prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

So viewed, the evidence established that Cordle began working
for employer in 1982. In 1983, Dr. J.P. Sutherland, Sr. x-rayed
Cordle’s chest. According to Cordle, Dr. Sutherland told him
"you’ve got a little bit of something." Dr. Sutherland
then told Cordle that he would "not . . . put nothing down
because if you do you’ll have to sign a waiver." Cordle
could not remember what Dr. Sutherland called the condition. When
asked if the doctor used the term "coal worker’s
pneumoconiosis," Cordle testified that "[i]t could have
been that . . . . I don’t know exactly what it was."

The commission held that Cordle did not receive a
communication of an occupational disease in 1983, finding that
"Dr. Sutherland’s statement to [Cordle] is too vague to
qualify as a communication of an occupational disease."
Based upon this finding, the commission held that Cordle’s claim
was not barred by the applicable statute of limitations.

This case is controlled by Mounts, in which we ruled
that an employee did not receive a communication of an
occupational disease when his x-rays revealed "possible
pneumoconiosis." Mounts, 24 Va. App. at 559, 484
S.E.2d at 144. See also Blue Diamond Coal Co. v.
Pannell
, 203 Va. 49, 51-52, 122 S.E.2d 666, 668-69 (1961). In
this case, the commission could reasonably infer from Cordle’s
testimony that his 1983 conversation with Dr. Sutherland did not
provide a diagnosis that was sufficiently definite to inform
Cordle that he had contracted a disease caused by his employment,
and thus, it did not trigger the running of the limitation
period. Cordle’s testimony constitutes credible evidence to
support the commission’s decision.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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