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Paramont Coal Company Virginia, LLC v. McCoy

Court of Appeals of Virginia

October 30, 2018

PARAMONT COAL COMPANY VIRGINIA, LLC AND BRICKSTREET MUTUAL INSURANCE COMPANY
v.
DEWEY J. McCOY

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Timothy W. Gresham (Kendra R. Prince; Penn, Stuart & Eskridge, on briefs), for appellants.

          Paul L. Phipps (Paul L. Phipps, P.C., on brief), for appellee.

          Present: Chief Judge Huff, Judges Beales and Decker Argued by teleconference

          OPINION

          MARLA GRAFF DECKER JUDGE

         Paramont 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.

         I. BACKGROUND[1]

         The claim for workers' compensation benefits underlying this appeal was based on the claimant's pneumoconiosis.[2] 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 that time.

         In 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."

         A 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."

         A chest 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.[3] The PET-CT, administered March 3, 2017, revealed "low level activity" related to the claimant's pneumoconiosis.

         In 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.

         Following 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.

         The employer appeals the Commission's award of permanent benefits to the claimant.

         II. ANALYSIS

         On 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 permanent disability.

         A. Standard of Review and Statutory Framework

         Generally, 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).

         On 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 (2002)).

         These 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 ...


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