PARAMONT COAL COMPANY VIRGINIA, LLC AND BRICKSTREET MUTUAL INSURANCE COMPANY
DEWEY J. McCOY
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Timothy W. Gresham (Kendra R. Prince; Penn, Stuart &
Eskridge, on briefs), for appellants.
L. Phipps (Paul L. Phipps, P.C., on brief), for appellee.
Present: Chief Judge Huff, Judges Beales and Decker Argued by
GRAFF DECKER JUDGE
Coal Company Virginia, LLC, and its insurer (collectively the
employer) appeal the Workers' Compensation
Commission's award of disability benefits to Dewey McCoy
(the claimant). The employer argues that the Commission erred
by approving the claimant's request for permanent
disability benefits even though he did not present evidence
establishing sufficient pulmonary function loss as required
by Code § 65.2-504. The medical documents submitted by
the claimant demonstrate that loss according to approved
medical tests and standards as required by the statute.
Further, the evidence in the record supports the
Commission's factual finding that the claimant
demonstrated sufficient pulmonary loss. The weight and
credibility to be given to the evidence were matters within
the Commission's purview as fact finder. Consequently, we
affirm the Commission's decision.
claim for workers' compensation benefits underlying this
appeal was based on the claimant's
pneumoconiosis. The claimant suffered loss of lung
function due to his exposure to coal dust over the course of
his thirty-two years of employment in a coal mine. In early
2016, the Commission awarded the claimant benefits for his
pneumoconiosis, which was determined as being at stage one at
September 2016, Dr. Vishal Raj evaluated the claimant. At the
time, the claimant complained of worsening shortness of
breath despite prescribed oxygen therapy and use of
bronchodilators. Raj reviewed the claimant's symptoms and
medical history. He conducted a physical examination and
ordered a pulmonary stress test that was performed that day.
Dr. Raj "advised" the claimant "not to work
under conditions where [the claimant would] have coal dust or
other dust/fume exposure."
February 2, 2017 pulmonary function test conducted by Dr.
Elie T. Nader showed "[m]oderately severe restrictive
airway disease with decrease in diffusing capacity reflecting
underlying chronic restrictive lung disease."
CT, ordered by Dr. Raj, was performed on February 3, 2017.
The chest CT established that both of the claimant's
lungs had "nodular densities," measuring up to 5.4
millimeters. The CT also showed small growth in numerous
densities since the 2015 study. During the claimant's
February 7, 2017 follow-up with Dr. Raj's office, a
PET-CT scan was ordered due to the irregular densities shown
on the chest CT. The PET-CT, administered March 3, 2017,
revealed "low level activity" related to the
2017, the claimant sought permanent total disability
benefits. At the employer's request, a different
physician, Dr. Roger McSharry, examined the claimant and
performed additional pulmonary function testing. He had not
reviewed the claimant's complete medical file or looked
at his chest x-ray images. McSharry concluded that the
claimant's limited lung capacity demonstrated "a
dramatic improvement" following prescribed
bronchodilator use. He opined that the claimant's lung
condition did not prevent him from performing manual labor in
a dusty environment.
a review of the parties' stipulations and the evidentiary
record, a deputy commissioner awarded the claimant permanent
total disability benefits under Code § 65.2-504(A)(4).
The employer requested review by the Commission. The
Commission affirmed the decision of the deputy commissioner,
with one commissioner dissenting.
employer appeals the Commission's award of permanent
benefits to the claimant.
appeal, the employer argues that the Commission erred by
finding that the claimant's pulmonary impairment met the
standards required by Code § 65.2-504(A)(4) for
Standard of Review and Statutory Framework
a claimant has the burden of proving by a preponderance of
the evidence that he is entitled to workers'
compensation. See Bergmann v. L & W Drywall, 222
Va. 30, 32, 278 S.E.2d 801, 802 (1981); see also Blue
Diamond Coal Co. v. Pannell, 203 Va. 49, 53, 122 S.E.2d
666, 669 (1961) (holding that a claimant suffering from
pneumoconiosis must prove by a preponderance of the evidence
"in whose employment he was last injuriously
exposed"). But see Code § 65.2-504(C)
(providing that a claimant suffering from pneumoconiosis is
entitled to a presumption that the condition is "coal
worker's pneumoconiosis" if the claimant had
"injurious exposure to coal dust"). This
requirement includes the principle that the "party
seeking workers' compensation bears the burden of proving
his disability." Vital Link, Inc. v. Hope, 69
Va.App. 43, 64, 814 S.E.2d 537, 547 (2018). However, at this
juncture, as the appellant in this case, the employer bears
the "burden of showing that reversible error was
committed" by the Commission. See Burke v. Catawba
Hosp., 59 Va.App. 828, 838, 722 S.E.2d 684, 689 (2012).
appeal, "'we view the evidence in the light most
favorable to the prevailing party' before the
[C]ommission," here, the claimant. See Clinchfield
Coal Co. v. Reed, 40 Va.App 69, 72, 577 S.E.2d 538, 539
(2003) (quoting Tomes v. James City Fire, 39 Va.App.
424, 429, 573 S.E.2d 312, 315 (2002)). "[W]e defer to
the [C]ommission in its role as fact finder . . . ."
Id. In that role, "the [C]ommission resolves
all conflicts in the evidence and determines the weight to be
accorded the various evidentiary submissions."
Montalbano v. Richmond Ford, LLC, 57 Va.App. 235,
252, 701 S.E.2d 72, 80 (2010) (quoting Bass v. City of
Richmond Police Dep't, 258 Va. 103, 114, 515 S.E.2d
557, 563 (1999)). The trier of fact is responsible for
weighing all aspects of expert witness evidence, including
the witness' credentials and possible bias. See,
e.g., Ford v. Ford, 200 Va. 674, 679, 107
S.E.2d 397, 401 (1959) (explaining that an expert
witness' "possible bias" affects the weight to
be given the testimony); Seneca Falls Greenhouse &
Nursery v. Layton, 9 Va.App. 482, 486-87, 389 S.E.2d
184, 187 (1990) (holding that a witness' lack of a
medical license was a matter for the trier of fact to
consider in weighing her expert opinion). Further, the
Commission's factual findings are "conclusive and
binding" if supported by credible evidence. Jackson
v. Ceres Marine Terminals, Inc., 64 Va.App. 459, 463,
769 S.E.2d 276, 278 (2015) (quoting VFP, Inc. v.
Shepherd, 39 Va.App. 289, 292, 572 S.E.2d 510, 511
principles apply "even [if] there is evidence in the
record to support a contrary finding." City of
Waynesboro v. Griffin, 51 Va.App. 308, 317, 657 S.E.2d
782, 786 (2008) (quoting Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877
(1986)). It is well established that this Court "does
not retry the facts, reweigh . . . the evidence, or make its
own determination of the credibility ...