City of Alexandria v Earl J. Cronin, Deceased

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
CITY OF ALEXANDRIA
v. 	Record No. 1862-94-4 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
EARL J. CRONIN, DECEASED 	JUNE 20, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Philip G. Sunderland (Amy Marschean; Office
of the City Attorney, on brief), for
appellant.
Jack T. Burgess; (Michael A. Kernbach; Cohen,
Dunn & Sinclair, P.C., on brief), for
appellee.
The City of Alexandria ("the city") appeals the decision of
the commission awarding death benefits to Earl J. Cronin's
estate. 	The city contends that the commission erred by making
the award because Cronin was aware that he suffered from an
occupational disease over two years before his estate filed for
death benefits and, therefore, pursuant to Code § 65.2-406(A)(5),
the statute of limitations barred his estate from receiving
compensation. 	We agree and reverse the commission's award.
Cronin served as a firefighter for the City of Alexandria.
In October 1989, Cronin's physician, who was treating Cronin for
hypertension (also an occupational disease), diagnosed Cronin as
suffering from heart disease and recommended in a letter to
Cronin's superior that Cronin be medically retired because of his
heart disease. 	Soon afterwards, Cronin filed with the city for

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service-connected disability retirement, which pays more benefits
than non-service-connected disability retirement. 	In support of
his application, Cronin presented his physician's October 1989
letter to the division chief of the benefits and systems division
of the city's personnel services department.
On February 1, 1990, Cronin was medically retired from the
city's fire department based upon a "partial disability-service
connected" and, accordingly, was awarded benefits. 	Two days
earlier, Cronin signed a form captioned "Retirement Income
Notice, Disability Income Notice" acknowledging and certifying
that his disability for which he was retiring was service-
connected. 	The city's retirement plan requires that in order for
an employee to be eligible for service-connected disability
benefits, his or her injury must also be compensable under the
Workers' Compensation Act.
On February 22, 1992, Cronin suffered a massive heart attack
and died. 	A claim for benefits was filed by Cronin's estate for
his death on May 18, 1992. 	The city defended the claim on the
ground that the estate was barred by the statute of limitations
because Cronin had been informed that he suffered from an
occupational disease over two years before his death.
At the hearing, the parties agreed that Cronin received a
formal diagnosis of coronary heart disease in October 1989, but
disputed whether Cronin was informed that his disease was work
related. 	The decedent's widow and brother both acknowledged that
Cronin was aware of his heart condition and that there had been

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discussions with the city's personnel services department about
the payment of his medical bills for this condition. 	However,
both denied that Cronin ever mentioned his condition's
compensability under the Workers' Compensation Act. 	A September
24, 1993 letter from Dr. Richard Schwartz, who reviewed Cronin's
medical records, states that the records do not show that Cronin
was "told by any health care provider that he had a coronary
heart disease related to his employment as a firefighter."
The city's risk manager in charge of claimants receiving
benefits testified that she met with Cronin extensively from
December 1990 through February 1991. 	The risk manager informed
Cronin, who was under the misimpression that he was already
receiving workers' compensation indemnity payments, that were he
to receive such indemnity benefits, they would, under the terms
of the city's pension plan, cause a dollar-for-dollar reduction
in his disability retirement payments, and he would have to
undergo vocational rehabilitation and return to work if possible.
After learning he would achieve no net gain in receiving the
indemnity benefits and that he would be subject to the vocational
rehabilitation program, Cronin opted not to seek an award from
the commission, but applied for service-connected disability
retirement benefits.
On the estate's death claim, the commission found that
Cronin had "applied for service-connected disability and knew he
could receive an award from the commission for his heart
disease," but that the evidence fell short of establishing the

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requisite communication to Cronin of his occupational disease
under the Workers' Compensation Act. 	The commission ruled that
while Cronin "believed his condition was work related," the
estate was not barred by the limitations period because Cronin
was not "medically advised that his condition was causally
related to his work."
Code § 65.2-406 (A)(5) which provides, in pertinent part:
A. The right to compensation under this chapter shall
be forever barred unless a claim is filed with the
Commission within . . .
* 	* 	* 	* 	* 	* 	*
5. For all other occupational diseases, two years
after a diagnosis of the disease is first communicated
to the employee . . . .
In this case, Cronin filed for service-connected disability
retirement benefits based on a treating physician's letter
recommending that he be "medically retired" because of such
condition, but the letter did not specifically state that
Cronin's condition was work related.1
The commission's ruling that Cronin did not receive the
requisite communication because he was not "medically advised [by
a physician] that his condition was causally related to his work"
extends the breadth of existing case law to a point of requiring
proof of a physician's direct communication to the employee that
the disease from which the employee suffers is work related.
1 Heart disease is a presumed occupational disease under the
Workers' Compensation Act for police officers and fire fighters.

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Under this interpretation of the law, benefits would be available
even if compelling and unrefuted evidence proved the employee's
knowledge of the compensability of his disease.
By interpreting the statute as requiring proof of a
communication by a physician of the employee's occupational
disease, the commission ignores the fact that, while many
employees may receive a diagnosis of his or her disease from a
physician, the claimants may receive the communication that such
a disease is a compensable occupational disease from someone
other than a physician, often an attorney or someone in charge of
personnel or administering benefits. 	The commission's ruling
overlooks practical experience under the Act and the fact that
the compensability of an occupational disease is a creation of
the legislature. 	A physician's diagnosis of an employee's
condition is not dispositive on the issue of compensability and
physicians often reach different conclusions about a condition's
origin.
[O]nce an employee receives a communication of an
occupational disease, it is incumbent upon that
employee to file a claim. 	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, and if so, (2) whether that
occupational disease is compensable.
Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343
S.E.2d 455, 458-59 (1986) (footnotes omitted).
Neither this Court nor the Supreme Court of Virginia has
interpreted Code § 65.2-406 (A)(5) as requiring a communication
from a physician to trigger the running of the limitations

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period. 	We hold that Code § 65.2-406 (A)(5) does not require
that an employee receive from a physician a communication that
his disease is work related; rather, the statute only requires
that the employee, simultaneously with or sometime after the
diagnosis of his condition, learn that the condition is an
occupational disease for which compensation may be awarded.
See Ratliff v. Dominion Coal Co., 3 Va. App. 175, 349 S.E.2d 147
(1986) (where we held that a 1979 letter from the Department of
Labor was "a medical determination of total disability due to
pneumoconiosis," so as to trigger not only the running of the
three year limitation period under the federal law but also under
the Virginia Workers' Compensation Act). 	In Ratliff, we rejected
the claimant's argument that a letter from the Department of
Labor was an administrative or legal determination, not a
"medical determination." 	Id.
Here, we have not only evidence of the physician's diagnosis
of Cronin's heart disease, but evidence that Cronin was aware of
its connection to his employment. 	He filed for service-connected
retirement benefits based on the diagnosis more than two years
before his death and before his estate filed a claim with the
commission. 	Having applied for and received disability benefits
based upon this diagnosis, Cronin, like Ratliff, was medically
informed that his heart condition was an occupational disease for
which he could receive benefits under the Workers' Compensation
Act. 	Indeed, the record establishes and the commission
specifically found that Cronin believed his heart disease was

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work related and knew he could receive an award from the
commission.
We are not persuaded by the claimant's argument that the
statutory language which refers to the time of the "diagnosis" by
definition requires a communication from a physician. 	We
distinguish this case from Garrison v. Prince William Co., 220
Va. 913, 265 S.E.2d 687 (1980), in which the Supreme Court of
Virginia held that a deputy sheriff who had been diagnosed with
hypertension in 1975 and filed claim for the same in 1978 was not
barred from receiving compensation because he had not received "a
diagnosis that he suffer[ed] from an `occupational disease': one
arising out of and in the course of employment." 	220 Va. at 917,
265 S.E.2d at 689. 	That Garrison might have successfully brought
a claim at an earlier date due to the statutory presumption set
forth in Code § 65.1-47.1, the Court said is "irrelevant" to the
resolution of whether the limitations period applied. 	Id.
Unlike Garrison, Cronin was not an unsuspecting employee who
filed with the commission late only after having learned of the
relatively new statutory presumption under then Code § 65.1-47.1.
Rather, Cronin received a medical diagnosis of his heart
condition and acted upon such diagnosis to receive service-
connected disability benefits. 	This action proved that Cronin
was informed for purposes of the statute.
Accordingly, we reverse the commission's award.
Reversed and dismissed.