COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

RALPH BLAKESLEE DEAN 

v. Record No. 0505-97-3 MEMORANDUM OPINION*

 PER CURIAM 

ATLANTIC RESEARCH CORPORATION MAY 6, 1997 

AND 

ARGONAUT INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Douglas K. W. Landau; Allred, Bacon, 

Halfhill, Landau & Young, on brief), for 

appellant. 

 (J. Gorman Rosenberger, Jr.; Wilson, Garbee & 

Rosenberger, on brief), for appellees. 

 Ralph Blakeslee Dean contends that the Workers' Compensation 

Commission erred in finding that (1) Code § 65.2-406(A)(5) barred 

the commission from considering Dean's claim for workers' 

compensation benefits for an occupational disease of berylliosis; 

and (2) the application of Code § 65.2-406(A)(5) to Dean's claim 

did not deny Dean due process and equal protection as guaranteed 

by both the United States and Virginia Constitutions. Upon 

reviewing the record and the briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the commission's decision. Rule 5A:27. 

 Dean was last exposed to beryllium powder and its components 

in May 1973 while working for his employer, Atlantic Research 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

Corporation. On August 8, 1994, Dr. Lee S. Newman first 

communicated to Dean that he suffered from an occupational 

disease, chronic beryllium disease ("berylliosis"). Dean's 

condition resulted in the need for medical treatment and 

permanent disability. On February 2, 1995, Dean filed a claim 

with the commission for workers' compensation benefits. 

 The commission ruled that it lacked jurisdiction to consider 

Dean's claim because he did not file it within five years of his 

last exposure to beryllium as required by Code § 65.2-406(A)(5). 

 Dean argues that the application of this code section violated 

his constitutional rights to due process and equal protection. 

 Code § 65.2-406(A)(5) provides as follows: 

 A. The right to compensation under this 

chapter shall be forever barred unless a 

claim is filed with the Commission within one 

of the following time periods: 

* * * * * * * 

 5. For all other occupational diseases, two 

years after a diagnosis of the disease is 

first communicated to the employee or within 

five years from the date of the last 

injurious exposure in employment, whichever 

first occurs. 

 In Miller v. Locher Silica Corporation, 12 Va. App. 1213, 

1216-17, 408 S.E.2d 566, 567-68 (1991), we upheld the 

commission's dismissal of Miller's claim for the occupational 

disease of silicosis on the ground that the commission lacked 

jurisdiction to consider the claim because it was not filed 

within five years of the last injurious exposure as required by 
 3 

Code § 65.1-52(3) (now Code § 65.2-406(A)(5)). In so holding, we 

found that "Code § 65.1-52[(3)] [now Code § 65.2-406(A)(5)] does 

not contravene any of [the employee's] rights to due process and 

equal protection." Miller, 12 Va. App. at 1215, 408 S.E.2d at 

567. 

 Here, the commission recognized that it lacked jurisdiction 

over Dean's claim based upon our ruling in Miller. We agree. We 

find no merit in Dean's argument that Miller should not apply 

because his claim involves berylliosis rather than silicosis. 

Both diseases fall under the same code section governing the 

applicable limitations period. Dean's claim was not filed within 

five years of his last injurious exposure, and is therefore, 

barred. Our holding in Miller, likewise, is dispositive of 

Dean's constitutional claim. See id. at 1215-17, 408 S.E.2d at 

567-68. 

 For the reasons stated, we affirm the commission's decision 

dismissing Dean's claim. 

 Affirmed.