Paramont Coal Company Virginia, LLC & Brickstreet Mutual Insurance Company v. Dewey J. McCoy
Paramont Coal Company Virginia, LLC & Brickstreet Mutual Insurance Company v. Dewey J. McCoy
Opinion
*346 Paramont Coal Company Virginia, LLC, and its insurer (collectively the employer) appeal the Workers' Compensation *347 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 *348 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, *834 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 *349 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
,
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
,
These principles apply "even [if] there is evidence in the record to support a contrary finding."
*835
City of Waynesboro v. Griffin
,
In contrast, an appellate court reviews the Commission's interpretation of a statute
de novo
if the "issue involves a pure question of statutory interpretation."
Jones v. Commonwealth ex rel. Moll
,
Code § 65.2-504(A)(4), in pertinent part, provides that an employee's pneumoconiosis qualifies as a "permanent disability" if it is "accompanied by sufficient pulmonary function loss as shown by approved medical tests and standards to render an employee totally unable to do manual labor in a dusty environment." The subsection also requires that the employee be "instructed by competent medical authority not to attempt to do work in any mine or dusty environment" and that the employee "in fact not [be] working."
On appeal, the employer does not dispute that the claimant suffered damage to his lungs or that he has pneumoconiosis. It challenges the Commission's conclusion that the claimant met his burden of proving sufficient pulmonary loss "as shown by approved medical tests and standards" as required by Code § 65.2-504(A)(4). The employer also argues that he failed to show that his pulmonary function loss renders him "totally unable to do manual labor in a dusty environment" in order to qualify for permanent disability. See Code § 65.2-504(A)(4).
B. Approved Medical Tests and Standards
The employer argues that the claimant failed to present evidence sufficient to meet the "approved medical tests and standards" prong of Code § 65.2-504(A)(4). Consideration of this assignment of error requires discussion of the relevant statutory language as well as analysis of the application of the statute to the facts of this case.
*352 1. Statutory Interpretation
To qualify as a permanent disability, the plain language of the statute requires that (1) the claimant has "sufficient pulmonary function loss as shown by approved medical tests and standards to render an employee totally unable to do manual labor in a dusty environment," (2) the claimant has been instructed to no longer work in a mine or dusty environment, and (3) he or she is in fact no longer doing so. Code § 65.2-504(A)(4). The Virginia Code does not define "approved medical tests and standards," nor has the Commission promulgated any regulations explaining or defining the terms or phrase. 4
We "assume that the General Assembly chose, with care, the words it used in enacting the statute" at issue.
See
City of Richmond v. Va. Elec. & Power Co.
,
*836
of the Commission, the legislature "did not restrict" its "judgment to any decision[-]making formula."
See
French v. Va. Marine Res. Comm'n
,
Interpreting the statute and applying the plain meaning of "approved medical tests and standards" is a question of law.
See
*353
RGR, LLC v. Settle
,
The words in the statute are plain and unambiguous. Pulmonary function loss "as shown by approved medical tests and standards" refers to the method by which a claimant must prove the pulmonary function loss to the satisfaction of the fact finder.
5
Code § 65.2-504(A)(4). The statute requires evidence of approved medical tests and standards demonstrating the claimant's pulmonary function loss. The remainder of the relevant language, "to render an employee totally unable to do manual labor in a dusty environment," simply describes the degree of pulmonary function loss necessary to qualify as a permanent disability.
The employer proposes that the statutory language requires that the approved medical tests be conducted according to some sort of independent approved standards. However, the plain language of the subsection does not require that a claimant prove his or her disability by approved medical tests "conducted according to" established standards. Code § 65.2-504(A)(4). The proposed construction of the subsection would require additional language in the statute that the legislature
*354
did not include.
Dodge v. Trs. of Randolph-Macon Woman's College
,
Alternatively, the employer proposes that the subsection requires an expert medical opinion that the claimant cannot work in a dusty environment due to pulmonary function loss "based on" approved medical tests. However, the plain language of the statute does not contain such a "based on" requirement. Again, if the legislature had intended the subsection to require
an expert medical opinion based on
"approved medical tests and standards," it would have included language to that effect.
See
Code § 65.2-504(A)(4). Instead, the statute makes clear that in order to qualify for permanent disability, a claimant must demonstrate that he or she sustained "sufficient pulmonary function loss as shown by approved medical tests and standards to render" him or her "totally unable to do manual labor in a dusty environment," as well as demonstrate that he or she was "instructed by competent medical authority not to attempt to do work in any mine or dusty environment."
The statute does not require a duly qualified physician to use specific tests to
*837
diagnose a claimant's pulmonary function loss. It also does not exclude the possibility that a physician may make a diagnosis based on factors other than the specific "approved medical tests and standards" by which the claimant seeks to prove the extent of his or her pulmonary loss.
6
No applicable statute mandates that an expert opinion
*355
that an employee is medically unfit to perform manual labor in a dusty environment is valid only if he or she gives that opinion
after
the administration of approved medical tests and standards demonstrating the requisite pulmonary function loss.
Cf.
Levick v. MacDougall
,
For these reasons, the employer's argument that Code § 65.2-504(A)(4) requires an expert medical opinion that the claimant cannot work in a dusty environment due to pulmonary function loss and proof that the opinion is based on "approved medical tests" fails. Had the General Assembly intended such requirements, the statute would include the necessary language.
The words in the statute are plain and unambiguous. Pulmonary function loss "as shown by approved medical tests and standards" refers to the method by which a claimant must prove the pulmonary function loss. Code § 65.2-504(A)(4). It suggests only that the claimant provide medical proof to support the conclusion. The remainder of the relevant subsection, "to render an employee totally unable to do manual labor
*356
in a dusty environment," simply describes the degree of pulmonary function loss necessary to qualify as a permanent disability.
2. Application of the Statute to the Facts of this Case
Next, we consider whether the record supports the Commission's finding that "approved medical tests and standards" demonstrated that the claimant suffered sufficient pulmonary loss. The documents that the claimant submitted in support of his claim include a pulmonary function report, which documents a pulmonary function test, and two CTs. A "pulmonary function test" is "[o]ne of several different tests used to evaluate the condition of the respiratory system."
Pulmonary function test
,
Taber's Cyclopedic Medical Dictionary
(23d ed. 2013). Specifically, such a test "[m]easures ... expiratory flow and lung volumes and capacities."
*838
Related federal standards further support this conclusion.
See
Chitwood v. E.I. Du Pont De Nemours & Co.
,
Based on this record, the Commission did not err by accepting the claimant's evidence as "approved medical tests and standards" showing pulmonary function loss rendering him "unable to do manual labor in a dusty environment." See Code § 65.2-504(A)(4).
C. Ability to Do Manual Labor in Dusty Environment
The employer also argues that the claimant failed to prove that he was unable to perform manual labor in a dusty environment due to his lung disease. It suggests that the Commission did not have the authority to draw a factual inference regarding the level of lung function loss and thus could not make such a finding in the absence of an express medical opinion to that effect.
The standard of review makes clear that we are bound by the factual findings made by the Commission as long as credible evidence supports these findings.
Wagner
,
It is apparent from the opinion of the Commission that it carefully considered the evidence, including the claimant's medical history. Credible evidence in the record supports the Commission's findings. The claimant suffered from pneumoconiosis as a result of his thirty-two-year career as a miner. To treat his condition, the claimant used supplemental oxygen and prescription bronchodilators. Nonetheless, he experienced wheezing, coughing, and shortness of breath. A pulmonary function study revealed "[m]oderately severe restrictive airway disease with decrease in diffusing capacity reflecting underlying chronic restrictive lung disease." CTs showed nodular and irregular densities in the claimant's lungs. When the 2017 CT was compared to the 2015 CT, growth of some of the densities was measurable. Fumes and dust were listed as exacerbating factors for the claimant's disease. Dr. Raj examined the claimant, had him undergo a pulmonary stress test, and managed his prescribed medications. In the course of treatment, Raj advised the claimant not to work in a mine again. The Commission's inference-that the claimant's pulmonary function loss was sufficient to prevent him from performing manual labor in a dusty environment-was reasonable under the facts that are in the record.
The employer makes several arguments relating to the Commission's decision not to credit Dr. McSharry's opinion that the claimant was able to work in a dusty environment. Most of these arguments relate to the manner *839 in which the Commission weighed the evidence.
The credibility of an expert witness and the weight assigned to an expert opinion are factual matters within the purview of the Commission.
Great N. Nekoosa Corp. v. Wood
,
The employer suggests that the Commission's acceptance of part of McSharry's evaluation should have foreclosed it from rejecting McSharry's ultimate opinion regarding the claimant's ability to work in a dusty environment. However, the Commission, as trier of fact, was "not required to accept a party's evidence in its entirety" but was "free to believe or disbelieve, in whole or in part," the evidence of "any witness."
See
English v. Commonwealth
,
The employer also argues that the Commission impermissibly discounted McSharry's opinion simply because he was an independent medical expert. McSharry observed that the claimant's baseline lung capacity "measured extremely low" and "appeared to show a severe restriction." He acknowledged that some of the diagnostics "look[ed] like" coal worker's pneumoconiosis. However, McSharry disagreed with that diagnosis, an opinion that contradicted Dr. Raj as well as the four physicians who had reviewed the claimant's 2014 chest x-ray. Based on his recorded improvement of the claimant's lung function following use of a prescribed bronchodilator, McSharry suggested that either the claimant "poor[ly] perform[ed]" on the baseline test or exhibited a "remarkable response to the bronchodilator." McSharry's pulmonary function examination of the claimant yielded different results than Dr. Nader's, who found no improvement after treatment with the bronchodilator. Dr. McSharry concluded that the claimant "may have a very mild respiratory or pulmonary impairment," in contrast to Dr. Nader's diagnosis of a "[m]oderately severe restrictive airway disease." McSharry had not reviewed the claimant's complete medical file or looked at his chest x-ray images. In addition, McSharry stated that he was often hired to perform exams for employers but never for employees. The Commission acted within its role as fact finder when it rejected Dr.
*360
McSharry's opinion that the claimant could work in a dusty environment.
See
Ga.-Pac. Corp. v. Robinson
,
Further, the employer's suggestion that Dr. Raj was not a treating physician is not supported by the record.
See generally
Gilbane v. Guzman
,
The employer contends that the Commission was obligated to accept McSharry's opinion because it was the "only evidence
*840
which address[ed] the issue central to the claim." It suggests that the claimant did not present sufficient evidence because Dr. Raj did not provide an express opinion that the claimant was physically unable to work in a dusty environment. However, we do not "require[e] a physician to use ... magic words."
Bakke
,
Contrary to the employer's assertions, the claimant presented medical evidence central to his claim that conflicted with McSharry's opinion that the claimant did not suffer pulmonary function loss sufficient to qualify for permanent disability benefits. Viewing the evidence in the light most favorable to the claimant, as the prevailing party before the Commission, the record supports the Commission's factual finding that the claimant's pulmonary function loss was sufficient to prevent him from performing manual labor in a dusty environment. 11
Accordingly, the Commission did not err in awarding the claimant permanent disability under Code § 65.2-504(A)(4). Therefore, we affirm the Commission's decision.
III. CONCLUSION
The record supports the Commission's conclusion that the claimant met his burden of proving sufficient pulmonary function loss "as shown by approved medical tests and standards."
*362 In addition, the Commission's finding that the claimant's pneumoconiosis renders him unable to perform manual labor in a dusty environment is supported by credible evidence in the record. Consequently, we affirm the Commission's decision.
Affirmed.
On appeal from the Commission, " 'we view the evidence in the light most favorable to the prevailing party' before the [C]ommission," in this case, the claimant.
See
Clinchfield Coal Co. v. Reed
,
"Coal worker's pneumoconiosis is a disease of the lung that results from the accumulation of coal dust in the lungs."
Clinchfield
,
A CT, computed tomography, is a "computerized x-ray scanning system that produce[s] a sectional anatomic image." CT and tomography, computed t , Taber's Cyclopedic Medical Dictionary (23d ed. 2013). A PET-CT is "positron emission tomography" used together with "computed tomography... to identify metastases in patients with cancer." PET-CT , Taber's , supra .
Notably, the legislature has defined other terms in the context of workers' compensation. See, e.g. , Code §§ 65.2-101, -400.
"Approve" is defined, in pertinent part, as "[t]o give formal sanction to; to confirm authoritatively." Approve , Black's Law Dictionary (10th ed. 2014). A "test" in the medical context is "[a] medical examination on part of one's body, usu[ally] administered for diagnostic reasons." Test , Black's Law Dictionary , supra . A "[s]tandard" is defined, in pertinent part, as "[a] model accepted as correct by custom, consent, or authority." Standard , Black's Law Dictionary , supra ; see also Standard , Webster's Third New International Dictionary (1993) (defining the term in part as "constituting or affording a standard for comparison, measurement, or judgment").
A physician may base a medical opinion that an employee is unfit to perform manual labor in a dusty environment on tests and standards considered appropriate by the physician. The bases upon which a doctor has formed his or her medical opinion affect the weight assigned to that opinion by the trier of fact.
See
Amelia Sand Co. v. Ellyson
,
We recognize that the two elements are related because such an instruction from a physician may often be based on the same diagnostics entered into evidence in support of the employee's claim.
Under the federal system, a miner is considered totally disabled if unable to work in a coal mine and engage in comparable work in the same geographical area.
Dyspnea is "difficult or uncomfortable breathing, resulting in shortness of breath."
Childress v. Colvin
,
The Commission is even permitted to make a finding of medical causation in the absence of expert medical opinion evidence.
Dollar Gen. Store v. Cridlin
,
The parties both cite
Four "O" Mining Corp. v. Deel
, No. 0083-17-3,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.