Roscoe Chitwood v E.I. Du Pont De Nemours, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
ROSCOE CHITWOOD
OPINION BY
v. 	Record No. 1566-98-2 	JUDGE SAM W. COLEMAN III
APRIL 27, 1999
E.I. DU PONT DE NEMOURS AND COMPANY, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Peter McIntosh (Gary Kendall; Michie,
Hamlett, Lowry, Rasmussen & Tweel, on brief),
for appellant.
Stephen D. Busch (Samuel L. Tarry, Jr.;
McGuire, Woods, Battle & Boothe, on brief),
for appellee.
In this workers’ compensation appeal, we determine whether
the commission correctly allowed an employer credit for payments
made for stage one asbestosis against an award for stage two
asbestosis under Code § 65.2-503(B)(17)(b). 	For the following
reasons, we find that the commission did not err; accordingly,
we affirm.
BACKGROUND
In 1996, the Workers’ Compensation Commission found that
Roscoe Chitwood suffered from second-stage asbestosis, a type of
pneumoconiosis, and awarded him one hundred weeks of permanent,
partial compensation benefits. 	After paying fifty weeks of
benefits, the employer ceased payments because it had previously

paid Chitwood fifty weeks of benefits for stage one asbestosis,
pursuant to an award entered in 1986. 	Chitwood filed for
additional benefits, claiming that benefits under Code
§ 65.2-503(B)(17) are not progressive and that a stage two
rating entitles a claimant to an additional one hundred weeks of
benefits after having received fifty weeks of benefits for stage
one. 	The commission ruled that employer was entitled to credit
the previously paid fifty weeks of compensation benefits for
stage one asbestosis against the one hundred weeks awarded for
stage two. 	Chitwood appeals the commission’s decision.
ANALYSIS
“This Court is not bound by the legal determinations made
by the commission. 	‘[W]e must inquire to determine if the
correct legal conclusion has been reached.’” 	Cibula v. Allied
Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711
(1992) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880,
140 S.E.2d 655, 657 (1965)), aff’d, 245 Va. 337, 428 S.E.2d 905
(1993). 	However, the commission’s construction of the Workers’
Compensation Act is “entitled to great weight on appeal.”
Wiggins v. Fairfax Park, Ltd., 22 Va. App. 432, 441, 470 S.E.2d
591, 596 (1996).
Code § 65.2-503 addresses, among other matters, permanent
partial and permanent total loss arising from pneumoconiosis,
“including but not limited to silicosis and asbestosis.” 	Code
§ 65.2-503 contains no language specifically allowing employers
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to credit awards for first- or second-stage pneumoconiosis
against subsequent awards for second- or third-stage
pneumoconiosis.
The claimant asserts that because Code § 65.2-504(B),
dealing with “black lung” benefits for coal miners’
pneumoconiosis, specifically authorizes credits for benefits an
employer has paid for partial disability against later permanent
disability lifetime benefits, the absence of a similar provision
in Code § 65.2-503, dealing with asbestosis, demonstrates a
legislative intent to not provide for credits under Code
§ 65.2-503. 	We agree with the commission’s conclusion that Code
§ 65.2-504, the Coal Miner’s Pneumoconiosis Act, has no
applicability here and provides no basis for comparison. 	Code
§ 65.2-504(B) was enacted pursuant to a federal mandate under 30
U.S.C. 801 et seq., the Federal Coal Mine Health and Safety Act
of 1969, to enact a uniform federal program for coal miners
afflicted with “black lung.” 	This statute must be construed
according to its own language and is independent of Code
§ 65.2-503.
Code § 65.2-503 is known as the “scheduled benefits”
statute. 	It allows for benefits to be paid an injured employee
according to a percentage of the average weekly wage for a
specific “scheduled” number of weeks for the loss or loss of use
of a body member regardless of the employee’s disability from
work. 	Code § 65.2-503 further provides that for partial,
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permanent loss of a member, or partial, permanent loss of use of
a member, or partial loss of vision, the commission may issue a
correspondingly proportionate award. 	See Code § 65.2-503(D).
Code § 65.2-503(B)(17) provides scheduled benefits for the
various stages of pneumoconiosis, including silicosis and
asbestosis. 	The three stages of pneumoconiosis listed in Code
§ 65.2-503, and further defined in Rule 11 of the Rules of the
Workers’ Compensation Commission, represent progressively more
advanced stages of the disease. 	These defined levels permit
partial and proportional compensation for varying degrees of
disease in the same manner that Code § 65.2-503(D) permits
proportional compensation for partial loss of use of a member or
of vision.
In Owen v. The Chesapeake Corp., 198 Va. 440, 442, 94
S.E.2d 462, 463 (1956), the Supreme Court interpreted Code
§ 65.2-503 to provide that a claimant who sustained a
progressive increase in his permanent loss of vision received
additional benefits for only the increased loss. 	Additionally,
the commission has interpreted Code § 65.2-503 to provide that
an increased loss of use of a member results in benefits
proportional only to the increased loss. 	See Mabe v. Lightning
Transportation, Inc., VWC File No. 155-89-02 (July 3, 1996);
Shank v. Rockingham Poultry Marketing Cooperative, Inc., VWC
File No. 132-36-51 (Sept. 6, 1994); Rife v. Garden Creek
Pocahontas Company, VWC File No. 140-11-39 (Aug. 11, 1992).
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Although not bound by the commission’s decisions, we give great
weight to its interpretation of the Act. 	See Wiggins, 22 Va.
App. at 441, 470 S.E.2d at 596.
We find no reason to decline to apply the proportional
award provision in subsection (D) to scheduled benefits for the
various progressive stages of pneumoconiosis. 	Therefore, we
hold that Code § 65.2-503(B) contemplates that a claimant with
pneumoconiosis be awarded compensation only in proportion to any
increase in the severity of his or her disease. 	A claimant with
first-stage pneumoconiosis receives an award of fifty weeks, and
a claimant with second-stage pneumoconiosis receives one hundred
weeks. 	The claimant already in receipt of a fifty-week award
for pneumoconiosis who thereafter progresses to second-stage is
entitled to an award only proportional to the degree in which
the disease has advanced -- in other words, fifty weeks. 	Thus,
an employer may credit awards for first- and second-stage
pneumoconiosis against awards for second- and third-stage
pneumoconiosis, respectively. 	To hold otherwise would create an
irrational windfall for claimants whose diseases advance from an
early finding of first-stage pneumoconiosis as opposed to
claimants who are initially determined to suffer from second- or
third-stage pneumoconiosis.
Accordingly, we affirm the commission’s decision.
Affirmed.
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