COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

Argued at Alexandria, Virginia 

MELVIN H. TOMES, JR. 

 OPINION BY 

v. Record No. 2450-01-4 JUDGE JEAN HARRISON CLEMENTS 

 DECEMBER 17, 2002 

JAMES CITY (COUNTY OF) FIRE AND 

 VIRGINIA MUTUAL GROUP 

 SELF-INSURANCE ASSOCIATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael A. Kernbach (Burgess, Locklin, 

Kernbach & Perigard, on brief), for 

appellant. 

 Ralph L. Whitt, Jr. (Whitt & Associates, on 

brief), for appellees. 

 Melvin H. Tomes, Jr., (claimant) appeals a decision of the 

Workers' Compensation Commission (commission) denying his 

October 7, 1997 and June 7, 2000 claims for benefits under Code 

§ 65.2-402(A). The commission ruled both claims were for the 

same lung condition, which claimant, because he was not entitled 

to the benefit of the presumption in Code § 65.2-402, failed to 

prove was a compensable occupational disease. We hold the 

commission did not err in denying claimant's October 7, 1997 

claim but did err in denying his June 7, 2000 claim. 

Accordingly, we affirm the commission's decision in part and 

reverse it in part. 
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I. BACKGROUND 

 The relevant facts in this case are not in dispute. On 

October 30, 1995, Dr. Thomas L. Munzel diagnosed claimant, who 

had worked as a firefighter with the James City County Fire 

Department since June of 1976, as having "virtually reversible 

obstruction," which, according to Dr. Munzel, was essentially a 

mild asthma variant of "adult onset reversible obstructive 

airways disease." 

 Based on that diagnosis, claimant filed a claim for 

benefits with the commission on November 14, 1995, for 

"virtually reversible obstruction" disease with a date of 

communication of October 30, 1995. Although he sought no 

specific benefits, claimant filed the claim to "have [it] on the 

record for [the] future." Claimant withdrew the claim on May 2, 

1996, but timely refiled it on October 7, 1997. In refiling the 

claim, claimant specifically indicated he had "not missed any 

work at [that] time." Rather, he simply wanted to have his 

claim "on [the] record for [the] future." On June 7, 2000, 

claimant notified the commission that he sought payment of his 

medical bills related to the virtually reversible obstructive 

disease communicated to him by Dr. Munzel on October 30, 1995. 

 Claimant received treatment from Dr. Munzel for his asthma 

from 1995 to 1999 but did not miss work or have any work 

restrictions imposed on him during that period. However, in 

early 2000, after working at a fire in December of 1999, 
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claimant's progressively worsening lung condition became 

disabling. On February 7, 2000, Dr. Munzel, having diagnosed 

claimant's pulmonary condition as irreversible chronic 

obstructive pulmonary disease and acute exacerbation of his 

asthma, directed that claimant not return to work as an active 

firefighter for at least two months. Dr. Munzel explained that 

claimant was disabled from working as an active firefighter at 

the time "due to his asthma," which was "clearly exacerbated by 

the fire fighting." From that point on, claimant never returned 

to work in an unrestricted capacity. In December of 2000, 

Dr. Munzel testified claimant had "continued to be disabled due 

to his asthma" and would never be able to actively fight fires 

again. 

 On June 7, 2000, claimant filed a claim for benefits 

alleging "Chronic obstructive pulmonary disease (COPD)/small 

airways disease/asthma" with a date of communication of February 

7, 2000. In filing that claim, claimant sought disability and 

medical benefits for the period beginning February 7, 2000. 

 On January 16, 2001, the deputy commissioner conducted a 

hearing on claimant's October 7, 1997 and June 7, 2000 claims. 

As the deputy commissioner noted, claimant was seeking "payment 

of medical bills from Dr. Munzel and related diagnostic studies 

commencing 1995 through the present" on the October 7, 1997 

claim and temporary total and partial disability benefits on the 

June 7, 2000 claim. James City County Fire and its insurer 
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Virginia Municipal Group Self-Insurance Association 

(collectively, employer) defended those claims, in part, on the 

grounds that they were barred by the applicable two-year statute 

of limitations because both claims were for the same disease, 

which was first communicated on October 30, 1995, and claimant 

sustained no disability until February 7, 2000. Employer 

stipulated, however, that, if the commission found the claim 

based on the October 30, 1995 date of communication and the 

claim based on the February 7, 2000 date of communication were 

separate claims based on separate diseases, it could not 

overcome the presumption in Code § 65.2-402 as to the June 7, 

2000 claim. 

 The deputy commissioner denied claimant's October 7, 1997 

claim, ruling the presumption in Code § 65.2-402 was not 

applicable to that claim because claimant suffered no partial or 

total disability "as a result of [the] October 30, 1995 date of 

communication." Without benefit of that presumption, the deputy 

commissioner continued, claimant was unable to prove he had 

sustained a compensable occupational disease.1

 However, the deputy commissioner granted claimant's June 7, 

2000 claim, ruling it was a separate claim, distinct from the 

October 7, 1997 claim. Applying employer's stipulation that it 

did not have sufficient evidence to overcome the presumption in 

1

 Claimant does not challenge this finding on appeal. 
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Code § 65.2-402 with regard to the June 7, 2000 claim, the 

deputy commissioner concluded claimant had proven a compensable 

occupational respiratory disease first communicated to claimant 

on February 7, 2000. 

 Upon review, a majority of the full commission affirmed the 

deputy commissioner's denial of the October 7, 1997 claim and 

reversed the deputy commissioner's decision with respect to the 

June 7, 2000 claim.2 The commission agreed with the deputy 

commissioner that, as to the respiratory disease first 

communicated to claimant on October 30, 1995, claimant did not 

qualify for the presumption of Code § 65.2-402 and that, 

"[w]ithout the benefit of the presumption, the evidence . . . 

[did] not establish a compensable occupational disease." With 

regard to claimant's latter claim, the commission stated: 

 The [June 7, 2000] claim . . . is 

dismissed. That claim was for a lung 

condition initially diagnosed on October 30, 

1995, which had worsened. This is not a 

separate claim for a separate disease. 

Rather, in the second claim, the claimant 

seeks disability benefits beyond the running 

of the statute of limitations for his lung 

condition, which we find is not compensable. 

II. ANALYSIS 

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below. R.G. Moore Bldg. Corp. v. 

 2

 One commissioner dissented, stating simply: "In my view, 

the lung condition diagnosed in 1995 is distinct from the 

chronic obstruction pulmonary disease diagnosed in 2000. The 

claim for disability benefits is therefore not untimely." 
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Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). If 

supported by credible evidence, the factual findings of the 

commission are binding on appeal. Code § 65.2-706(A); Fairfax 

Hospital v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 

(1980). However, "we review questions of law de novo," Rusty's 

Welding Serv. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 

259 (1999) (en banc), ever mindful that, "[w]hile the provisions 

of the Virginia [Workers' Compensation] Act are to be liberally 

construed to see that its benefits are awarded to injured 

employees, that principle [neither] authorize[s] the courts to 

amend, alter or extend its provisions, nor . . . require[s] that 

every claim asserted be allowed," Bowden v. Newport News 

Shipbuilding & Dry Dock Co., 11 Va. App. 683, 688, 401 S.E.2d 

884, 887 (1991). While we generally give great weight and 

deference, on appeal, to the commission's construction of the 

Workers' Compensation Act, we are "'not bound by the 

commission's legal analysis in this or prior cases.'" Peacock 

v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368, 

372 (2002) (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 

189 n.1, 497 S.E.2d 904, 906 n.1 (1998)), appeal filed, No. 

021766 (July 29, 2002). 

 As relevant to the facts of this case, Code 

§ 65.2-406(A)(5) provides that the right to compensation for 

occupational diseases shall be forever barred unless a claim is 

filed within two years after a diagnosis of the disease is first 
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communicated to the employee. Hence, "once an employee receives 

a communication of an occupational disease, it is incumbent upon 

him to file a claim" within two years of that communication. 

Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343 

S.E.2d 455, 458-59 (1986) (footnote omitted). "[I]f an employee 

receives a communication of a diagnosis of an occupational 

disease, and does not act on that communication prior to the 

running of the statute of limitations, then he is barred from 

filing a later claim based on a later diagnosis." Id. at 225, 

343 S.E.2d at 458 (citing Anderson v. Clinchfield Coal Co., 214 

Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "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 [now Code § 65.2-400], and if so, (2) 

whether that occupational disease is compensable." Id. at 226, 

343 S.E.2d at 459 (footnote omitted). 

 In this case, claimant acted appropriately upon receiving a 

communication of a possible occupational disease from 

Dr. Munzel. Once Dr. Munzel diagnosed him with virtually 

reversible obstruction on October 30, 1995, claimant, after 

withdrawing an earlier claim, filed a timely claim for virtually 

reversible obstruction with the commission on October 7, 1997. 

Hence, it then became the commission's duty to determine whether 

the claimant's disease was an occupational disease, and if so, 

whether that occupational disease was compensable. 
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 In fulfillment of that duty, the deputy commissioner, after 

conducting a hearing on claimant's October 7, 1997 claim on 

January 16, 2001, denied the claim, concluding that claimant had 

failed to prove the disease upon which that claim was based was 

a compensable occupational disease. In reaching that 

conclusion, the deputy commissioner held the presumption in Code 

§ 65.2-402 was inapplicable to claimant's October 7, 1997 claim 

because claimant sustained no disability as a result of the 

disease communicated to him on October 30, 1995, and thus sought 

only payment of medical bills in his claim. On review, the 

commission affirmed the deputy commissioner's denial of 

claimant's October 7, 1997 claim. 

 Code § 65.2-402(A) provides, in pertinent part: 

 Respiratory diseases that cause . . . 

any health condition or impairment of 

[volunteer or salaried] firefighters . . . 

resulting in total or partial disability 

shall be presumed to be occupational 

diseases, suffered in the line of duty, that 

are covered by this title unless such 

presumption is overcome by a preponderance 

of competent evidence to the contrary. 

 

Thus, in order to establish the relevant prima facie case 

necessary to secure the benefit of the presumption in Code 

§ 65.2-402(A), a claimant must prove his occupation as a 

firefighter and his disability from a respiratory disease. See

City of Norfolk v. Lillard, 15 Va. App. 424, 427, 424 S.E.2d 

243, 245 (1992). "Disability from a disease has been defined as 

the stage when the disease prevents the employee from performing 
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his work efficiently." Salyer v. Clinchfield Coal Corp., 191 

Va. 331, 338, 61 S.E.2d 16, 20 (1950). 

 Here, claimant failed to establish that the respiratory 

disease referenced in his October 7, 1997 claim rendered him 

totally or partially disabled. Indeed, he sought no lost 

earnings from work in his claim and concedes on appeal that "he 

did not miss any time from work until February 7, 2000," when 

Dr. Munzel diagnosed him with irreversible chronic obstructive 

pulmonary disease and acute exacerbation of his asthma and 

instructed him not to return to work as an active firefighter. 

Claimant further concedes on appeal (1) that "[t]he medical 

records . . . disclose that [he] did not incur the required 

disability for invoking the benefits of the presumption pursuant 

to [Code] § 65.2-402(A), until February 7, 2000," (2) that, 

prior to February 7, 2000, he "was never either partially or 

totally disabled from work as a firefighter due to lung 

disease," and (3) that "the time for wage indemnity had long 

since lapsed" by the time he suffered any disability. 

Accordingly, the deputy commissioner and the commission did not 

err in holding the presumption in Code § 65.2-402 had no 

application to claimant's October 7, 1997 claim and in 

concluding claimant failed to prove that virtually reversible 

obstruction was a compensable occupational disease. 

 However, as noted, Dr. Munzel diagnosed claimant, on 

February 7, 2000, as having irreversible chronic obstructive 
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pulmonary disease and acute exacerbation of his asthma and told 

him he could not return to work as an active firefighter. Based 

on that diagnosis, claimant filed a claim for benefits on June 

7, 2000, for "Chronic obstructive pulmonary disease (COPD)/small 

airways disease/asthma," with a date of communication of 

February 7, 2000. In that claim, claimant sought disability 

benefits commencing February 7, 2000. 

 The deputy commissioner found that claimant's June 7, 2000 

claim was a new, different claim and, applying employer's 

stipulation that it could not overcome the presumption in Code 

§ 65.2-402, held that claimant had proven a compensable 

occupational disease first communicated to claimant on February 

7, 2000. The commission, however, reversed the decision of the 

deputy commissioner, ruling that claimant's June 7, 2000 claim 

was not a separate claim and that the claimant sought 

"disability benefits beyond the running of the statute of 

limitations for his lung condition, which [was] not 

compensable." 

 In Parris, after examining four prior cases involving 

multiple diagnoses of the "same" occupational disease, we set 

out the "rule of law" discerned from those cases, stating as 

follows: 

If the Commission determines that the 

claimant does not have an occupational 

disease, or that his occupational disease is 

not compensable, then the statute of 

limitations in regard to the first 
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communication of the diagnosis forming the 

basis of that claim has no bearing on a 

subsequent diagnosis and a claim filed as a 

result of the communication of that 

diagnosis. 

2 Va. App. at 226, 343 S.E.2d at 459. 

 One of the cases we reviewed in Parris was Hale v. 

Clinchfield Coal Co., 59 O.I.C. 112 (1981), the holding of 

which, we observed, was noted with approval by the Supreme 

Court. Parris, 2 Va. App. at 225, 343 S.E.2d at 458. As we 

noted in Parris, the Hale case 

centered on the question of compensability 

of a claim based on a diagnosis of an 

occupational disease. Hale received a 

diagnosis of employment-related hearing loss 

on May 10, 1975, and timely filed a claim on 

that basis. The Commission, applying a 

table for rating hearing loss, concluded 

that Hale's hearing loss was so minor at 

that point that it was not included on the 

table to the extent that it would be 

compensable. In 1980, Hale received a 

second diagnosis of occupational hearing 

loss which had become more severe at that 

time. The Commission entered an award for 

Hale, finding that his 1980 claim was not 

barred because the evidence relating to the 

1975 claim did not show a compensable

hearing loss at that time. The Commission 

held "that the Statute of Limitations did 

not commence to run against [the 1980] claim 

until the date of diagnosis and 

communication of a compensable occupational 

disease, on April 7, 1980." 

 

Id. at 224, 343 S.E.2d at 457-58 (first emphasis added) (quoting 

Hale, 59 O.I.C. at 113). Another of the cases we reviewed in 

Parris was Cook v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d 

263 (1975), about which we wrote: 
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Cook first received a diagnosis of 

occupational pneumoconiosis in 1968. He 

timely filed a claim based on that 

diagnosis. This 1968 claim was dismissed 

"because the medical evidence did not prove 

the existence of an occupational disease." 

[Cook, 215 Va.] at 600, 212 S.E.2d at 264. 

In 1973, Cook received another diagnosis of 

occupational pneumoconiosis, and timely 

filed a claim. The Supreme Court, in 

reversing the Commission, held that Cook was 

not barred from filing his 1973 claim. The 

Court stated that: 

The record shows that claimant's 

1968 application was dismissed by 

the deputy commissioner because 

the medical evidence at the 

hearing before him failed to 

disclose the existence of any 

occupational disease. Since 

claimant could not prove his 1968 

claim by medical evidence before 

the deputy commissioner, he was 

not barred from filing his second 

claim when he obtained a positive 

diagnosis on June 13, 1973, that 

he had pneumoconiosis. 

Id.

 

Parris, 2 Va. App. at 223-24, 343 S.E.2d at 457. 

 Here, as in Hale and Cook, claimant, after failing to prove 

he had a compensable occupational disease based on his first 

diagnosis and claim, received a second diagnosis and filed a 

timely second claim pertaining to the same condition, which had 

since worsened and become compensable. Thus, applying the same 

rationale utilized in Hale and Cook, and set forth in Parris, to 

the instant case, we conclude the commission erred in denying 

and dismissing claimant's June 7, 2000 claim and, in light of 
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employer's stipulation that it could not overcome the 

presumption in Code § 65.2-402 as to that claim, in holding that 

the disease upon which the June 7, 2000 claim was based was not 

compensable. It matters not, under Hale, Cook, and Parris, that 

claimant's June 7, 2000 claim was based, as the commission 

found, upon the same condition upon which claimant's initial, 

denied claim was based. Once the commission determined that 

claimant had failed to prove he had a compensable occupational 

disease, with respect to his first claim, the claimant was not 

barred from receiving an award on his June 7, 2000 claim based 

on the diagnosis communicated to him on February 7, 2000. 

 Accordingly, we affirm the commission's decision affirming 

the deputy commissioner's denial of claimant's October 7, 1997 

claim, reverse the commission's decision denying and dismissing 

claimant's June 7, 2000 claim, and remand this case to the 

commission for further proceedings consistent with this opinion. 

 Affirmed in part,

reversed in part

and remanded.