Island Creek Coal Company v Larry Miller

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
ISLAND CREEK COAL COMPANY
OPINION BY
v. 	Record No. 0402-00-3 	JUDGE JAMES W. BENTON, JR.
JULY 18, 2000
LARRY MILLER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael F. Blair (Penn, Stuart & Eskridge, on
brief), for appellant.
Susan D. Oglebay for appellee.
The commission awarded benefits to Larry Miller for coal
workers' pneumoconiosis. 	Island Creek Coal Company contends the
evidence did not support the award. 	For the reasons that
follow, we affirm the award.
I.
The parties stipulated that Miller received a communication
of a diagnosis of occupational disease on July 13, 1998 and that
he was last injuriously exposed to coal dust while working in
Island Creek's coal mine. 	The record also contains a report
from Dr. Kishor Pathak in which he opined, after reviewing
Miller's x-rays, that Miller has "simple pneumoconiosis category
p/q, 1/2" and emphysema.
The commission forwarded Miller's x-rays to the Medical
College of Virginia's Pulmonary Committee for its review and

report. 	The committee consisted of three doctors, all of whom
are "B" readers. 	See Penley v. Island Creek Coal Co., 8 Va.
App. 310, 318, 381 S.E.2d 231, 236 (1989) (noting that "[t]he
rating of 'B' apparently denotes a reader of greater proficiency
and expertise than 'A' readers"); see also Tiller v. Island
Creek Coal Co., 67 VWC 136, 137 (1988) (where the commission has
noted that "B" readers are "physicians who have received special
training in the interpretation of chest x-rays and the
application of the I.L.O. and U.I.C.C. Cincinnati standards
which have been adopted by the Commission as a guide in
determining [pneumoconiosis]"). 	The committee reviewed the
x-rays and reported that it found parenchymal abnormalities
consistent with pneumoconiosis but no pleural abnormalities
consistent with pneumoconiosis. 	Dr. Kevin R. Cooper, a member
of the committee, testified by deposition that Miller's x-ray
was typical of mild asbestosis. 	Dr. Daniel A. Henry, another
member of the committee, also testified by deposition that
Miller's x-ray patterns were consistent with asbestosis. 	Dr.
Henry further testified that the committee does not "know what
the exposures are of any of the people whose films that we
read." 	Three doctors who reviewed Miller's x-ray at Island
Creek's request reported that it was negative for
pneumoconiosis.
Affirming the deputy commissioner's award to Miller, the
commission found as follows:
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A preponderance of the evidence proved
[Miller] has pneumoconiosis. 	Dr. Pathak
believed [Miller] has coal workers'
pneumoconiosis. 	The pulmonary committee,
while opining the x-rays were not consistent
with coal workers' pneumoconiosis, stated
the x-rays were consistent with a number of
diseases including asbestosis. 	Asbestosis
is a type of pneumoconiosis.
Since the medical evidence establishes
[Miller] has a pneumoconiosis and the
employer stipulated he was exposed to coal
dust, [Code] § 65.2-504(C) mandates the
finding that [Miller] is conclusively
presumed to have coal worker's
pneumoconiosis. 	As held in Fleming v.
Lambert Coal Co., 74 OWC 183 (1995), where
there is a question whether the claimant has
coal workers' pneumoconiosis or another type
of pneumoconiosis, Code § 65.2-504(C)
provides that it shall be conclusively
presumed a claimant has coal workers'
pneumoconiosis if a claimant with
pneumoconiosis is injuriously exposed to
coal dust.
Island Creek appeals from this ruling.
II.
Code § 65.2-504(C) provides as follows:
In 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
such as silicosis, it shall be conclusively
presumed that he is suffering from coal
worker's pneumoconiosis if he has had
injurious exposure to coal dust.
In addition, the Workers' Compensation Act states that
"[p]neumoconiosis . . . includ[es] but [is] not limited to
silicosis and asbestosis." 	Code § 65.2-503(B)(17).
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Applying these statutes to the evidence in the record, the
commission ruled that Miller "is conclusively presumed to have
coal workers' pneumoconiosis because the majority of experts
believe he has some form of pneumoconiosis and the parties have
stipulated to his injurious exposure to coal dust." 	We hold
that credible evidence supports the commission's findings and
that the commission's ruling is consistent with Code
§ 65.2-504(C). 	Accordingly, we affirm the award.
Affirmed.
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