____________________ * Justice Agee participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. COURT OF APPEALS OF VIRGINIA Present: Judg es Humphreys, Agee* and Kelsey Argued at Salem, Virginia

CLINCHFIELD CO AL COMPANY OPINION BY v. Record No. 1727-02-3 JUDGE D. ARTHUR KELSEY MARCH 11, 2003 FARRELL D. REED

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Timothy W. Gresha m (J. Jasen Eige; Lisa Frisina Clem ent; Penn, Stuart & Eskridge, on brief), for appellant. Susan D. Oglebay for appellee.

The Virginia Workers' Compensation Commis sion awarded Farrell D. Reed medical benefits for coal worker s' pneumoconiosis (CWP) pursuant to ou r decision in Jones v. E.I Dupont de Nemours & Co. , 24 Va. App. 36, 480 S. E.2d 129 (1997). The appellant, Clinchfield Coal Company, appe als this award urgi ng us to reverse Jones . Short of that, Clin chfield argues that we should limit Jones to cases involving asbestosis and not apply it to claimants with CWP. Finally, Clinchfield as serts that the medical evidence fails as a matter of law to demo nstrate that Reed ha s CWP at this time. We affirm the comm ission and hold that (i) we have no authority to revisit Jones , (ii) both the ra tionale an d theholding of Jones govern CWP as well as asbestosis, an d (iii) the commission did not err in finding that Reed has CWP.

I. On appeal, "we view the evidence in the light most favorable to the prevailing party" before the commission. Tomes v. James City (County Of) Fire , 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002); Grayson County Sch. Bd. v. Cornett , 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002). Dr. Kathleen DePonte diagnosed Reed with CWP (sometimes known as black lung disease) on Ap ril 6, 2001. "Coal worker's pneumoconiosis is a disease of the lung that results from the accumulation of coal dust in the lungs." Penley v. Island Creek Coal Co. , 8 Va. App. 310, 31 2, 381 S.E.2d 231, 233 (1989). On April 13, 2001, Re ed filed an occupational disease cl aim seeking benefits for the disease. Clinchfield conc eded Dr. DePonte's comm unication of diagnosis and stipulated that Reed was "last injuri ously expose d to the hazards of coal dust while working" for Clinchfield. Reed, in turn, agreed to be bound by the di agnostic findings of The Medical College of Virginia Occupational/P ulmonary Committee (the "pulmonary committee"). See Va. Work. Comp. R. 10.2 & 10.3. The deputy commissioner found "from the opinio n expressed by the pulmonary comm ittee that claimant has le ss than a category one level of the disease and is therefore not entitled to weekly benefits." The deputy commission er, however, note d "the pulmonary

- 2 -committee advise d that claimant does have evidence of the disease and that he has sm all opacities clas sified as qq in the four upper lung zones with a profusion of 0/1." Since there was "n o contrary medical opinion of record," the deputy co mmissioner held, on the basis of Jones , that Reed was entitled to a me dical award. Clinchfield requ ested review by the full comm ission, which affirmed the deputy co mmissioner's award.

II. Though we defe r to the commissi on in its role as fact finder, we "review ques tions of law de novo ," Rusty's Welding Serv., Inc. v. Gibson , 29 Va. App. 119, 127, 510 S.E.2d 255, 25 9 (1999), and do not consider oursel ves "bound by the legal determ inations made by the comm ission." Grayson County Sch. Bd. , 39 Va. App. at 281, 572 S.E.2d at 506 (quoting Robinson v. Salvation Army , 20 Va. App. 570, 572, 459 S.E.2d 103, 104 (1995)); see also Sturtz v. Chesapeake Corp. , 38 Va. App. 672, 675, 568 S.E.2d 381, 383 (2002). Even so, with regard to th e commission's interpretation of its enabling statut es, "we follow the se ttled rule that the construction accorded a statute by public of ficials char ged with its administrati on is entitled to be given weight by the courts." Sturtz , 38 Va. App. at 675, 568 S.E.2d at 383. The Virginia Workers' Compensation Act shou ld be regarded as "remedial legi slation and should be liberally co nstrued in favor of the injured employee." E.I. du Pont de Nemours & Co. v. Eggleston , 264 Va. 13, 17, 56 3 S.E.2d 685, 68 7 (2002) (citing Byrd - 3 -v. Stonega Coke & Coal Co. , 182 Va. 212, 221, 28 S.E.2d 725, 729 (1944)). That libera lity, however, has its limits. We cannot "permit a libera l construction to change the meaning of the statutory lang uage or the purpos e of the Act." American Furniture Co. v. Doane , 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).

III. A. Clinchfield fi rst urges us to overrule Jones v. E.I Dupont de Nemours & Co. , 24 Va. App. 36, 480 S.E. 2d 129 (1997). Under our rule of interpanel accord, howe ver, we lack th e authority to revisit Jones . See Commonwealth v. Burns , 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990) (quoting Selected Risks Ins. Co. v. Dean , 233 Va. 260, 265, 355 S.E.2d 579, 58 1 (1987)). Th e decision of one panel "becomes a predicate for application of th e doctrine of

stare decisis " and cannot be overruled ex cept by th e Court of Appeals sitting en banc or by the Virginia Supreme Court. Johnson v. Commonwealth , 252 Va. 425, 43 0, 478 S.E.2d 53 9, 541 (1996). This principle applies not merely to the li teral holdin g of the case, but al so to its ratio decidendi —— the essent ial rationale in the case that dete rmines the judgment. For this reason, we reject Clinchfiel d's request that Jones be overruled.

B. Clinchfield next argues that Jones does not apply to cases involving medi cal benefits for CWP. On this point, Clinchfield appears to divide the fa ct-specific holding of Jones from its

- 4 -ratio decidendi —— urging that only the former, but not the latter, has stare decisis weight. We do not accept this segmentation of Jones , finding its ra tionale and re sult equally applicable to th is case.

Jones addressed the qu estion whether an employee with asbestosis was entitl ed to medical benefits even though the disease had not ri sen to the level of a "permanent loss" under Code § 65.2-503. The em ployer argued that an occupational disease which "has not reached a ratable level under Code § 65.2-503 is not a compensable occupational disease an d renders th e claimant ineligible for any bene fits under the Act." Jones , 24 Va. App. at 38, 480 S.E.2d at 130.

Jones rejected the employ er's argument, ruli ng that "[s]imply because the diseas e fails to rise to the le vel of a permanent loss on the schedule of Code § 65.2-503 does no t automaticall y preclude an award of medi cal benefi ts." Id. Instead, "C ode § 65.2-403 allows an award of medical benefi ts to employee s who have an occupational disease co vered by the Act." Id. After reviewing the "statutory lang uage and the factua l findings of the commission," Jones found that the employ ee's condition fell "within the defi nition of an occupa tional disease." Id. Under this analysis, "whether a permanent loss comp ensable unde r Code § 65.2-503 accompanies the disease has no impact upon an award under Code § 65.2-403." Id. The employee in Jones , therefore, was "entitled to medical benefi ts under Code § 65.2-403." Id.

- 5 -Jones relies on the pl ain language of Co de § 65.2-403(B), which states that an "employee wh o has an occupational disease that is covered by this title sh all be entitled to the same hospital, medi cal and miscellane ous benefits as an employee who has a compensabl e injury by accident." Jones , 24 Va. App. at 38, 480 S.E.2d at 130. Nothing in Code § 65.2-403(B) re quires that the occupation al disease qualify for permanent loss or disability compensation before medical benefits may be awarded. Under Code § 65.2-403(B), the sole inquiry is whether the disease qualifies as an "occupationa l disease that is covered by this title" —— if so, medical be nefits may be awarded. 1

Jones equates occupa tional diseases to in juries by accident for purposes of medical bene fits. By doing so, Jones recognizes that both sets of conditions can give rise to two unique

1 Clinchfield cites dicta in Parris v. Appalachian Power Co. , 2 Va. App. 219, 343 S.E.2d 455 (1986), to support its argument that "occupational diseases are not per se compensable." This language was taken from a headnote in Long v. W. Va. Pulp & Paper Co. , 46 O.I.C. 140, 141 (1964), and was unnecessary to our decision in Parris regarding whether the statute of limitations had run on a workers' compensation claim. Moreover, Long , the opinion underlying the Parris dicta, decided only the issue whether the claimant was entitled to wage compensation —— it made no rulings regarding medical benefits. Clinchfield also cites Merrimac Anthracite Coal Corp. v. Showalter , 158 Va. 227, 163 S.E. 73 (1932), for the proposition that "in a case of injury by accident, a medical award cannot be issued unless the claimant suffered a compensable injury by accident." In Merrimac , however, the claimant was denied not only medical benefits, but all benefits because the "injury was the result of his wilful [sic] misconduct . . . ." The Act, therefore, expressly barred the claimant from receiving any compensation at all. Merrimac does not distinguish medical benefits from wage and disability compensation. - 6 -categories of benefits. See generally Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 57.10 (1999). The first category of benefits consists of "w age loss payments based on the concept of disability." Id. The second ca tegory consists of the "payment of hospital and medical expe nses occasioned by any work-connected injury, regardless of wage loss or disability ." Id. (emphasis added). 2 We disagree with Clinchfield that , for purposes of medical benefits under Jones , CWP should be treated diff erently than asbestosis. It is true that the Act of ten distinguis hes between the two. See , e.g. , Code § 65.2-405 (notice provisions); Code § 65.2-406 (limitations); Code §§ 65.2-503 an d 65.2-504 (permanent loss and disability). But on the critic al point —— medical benefits —— Code § 65 .2-403(B) makes no distinction between them.

2 Our application of Jones to occupational injuries tracks similar rulings from other st ate courts. See , e.g. , J.T. Thorp, Inc. v. Worker's Comp. Appeals Bd. , 153 Cal. App. 3d 327, 1984 Cal. App. LEXIS 1782 (1984) ("[A]n empl oyee suffering from asbestosis may obtain reimbursemen t for predisab ility medical expenses."); Roberson v. Ha rford Accident & Indem. Co. , 234 S.E.2d 145 (Ga. Ct. App. 1977 ) (there is "n o inconsistency" in directing the payment of medical expenses while denyin g other comp ensation benefits); Shepherd v. Th e Gas Serv. Co. , 352 P.2d 48 (Kan. 1960) ("An award providing fo r the payment of cert ain medical treatment and care . . . is an award of compensa tion" and em ployees are entitled to such benefi t even if the injury does no t warrant loss of wage or disabili ty compensation.); In re Ryciak , 186 N.E.2d 408 (N.Y. 1962) (holdi ng that an employee may be awarde d costs for medical treatm ent arising fr om an occupa tional disease before any loss of wage s accrues); In re Finch , 761 P.2d 544 (O r. App. 1988) (holding that di agnostic medical services are compen sable even though the occupational disease warran ts no other co mpensation). - 7 -Moreover, as the commission noted, "pneumoc oniosis is a generic term used to describe a chronic fibrous reacti on in the lungs related to the inhalation of dust, and includ es asbestosis, silicosis, byssiniosi s, coal worker's pneumoconiosis and siderosis." As the commission further no ted, "Asbestosis is but one of the several occu pationally-induc ed pneumoconioses for which workers' compensation benefits, incl uding medical benefits, are available." Like other pneumoconi oses, the Act trea ts asbestosis and CWP substantially alike when measuring the progressive "stages" of th e diseases. See Code §§ 65.2-5 03, 65.2-504; Va. Work. Comp. R. 11. The rationale of Jones , therefore, applies equally to CWP as well as to asbestosis. C. Clinchfield also ar gues that, even if Code § 65.2-403 authorizes medical be nefits in th e absence of a compensable occupational disease, the claimant must still prove he has a disease in the first place. As Clinchfi eld sees it, Reed's condition cann ot be treated as a "disea se" because th e pulmonary committee rated hi s radiographs as category 0/1 as defined by the Guidelines for the Us e of ILO Internationa l Classifica tion of Radiographs of Pneumoconioses , ILO Occup. Safety and Health Ser. No. 22 (rev. ed. 1980). That rating, Clinch field asserts, means that no recognizab le CWP can exist as a matter of law. Clinchfield ba ses its argument predominantl y on a chart contained in a law re view article written by a physician. See N. - 8 -LeRoy Lapp, A Lawyer's Medical Guide to Black Lung Litigatio n , 83 W. Va. L. Rev. 721, 72 9-31 (1981). The char t, reproduced below, purports to divide the ILO categories into two diagno stic subsets: "No Pneumoconi osis" and "Definit e Pneumoco niosis."

0/- 0/0 0/1 1/0 1/1 1/2 2/1 2/2 2/3 3/2 3/3 3/4

Category 0 Category 1 Category 2 Category 3

No Pneumoconiosis Definite Pneumoconiosis

We published this chart in Penley , 8 Va. App. at 312, 381 S.E.2d at 233, as a part of a general desc ription of the "radiology of coal worker's pneumoco niosis." Though we treated the chart as informative, neithe r our holding in Penley nor its rationale turned on the li ne drawn between the "No Pneumoconiosis" and the "Definite Pneumoconiosis" subsets separati ng ILO category 0 from categories 1, 2, and 3. 3 Whether such a cate gorical line exists, therefore, merits closer scrutiny.

3 In Penley , the claimant appealed the commission's denial of permanent partial disability benefits under Code § 65.1-56.1 (now Code § 65.2-504). Penley analyzed the issue whether the disease qualified for disability benefits under Code § 65.2-504's precursor, which expressly required that the disease be at least stage one, as opposed to § 65.2-403, which contains no such requirement. - 9 -Our analysis begi ns with Code § 65 .2-403(B), which Jones held authorizes medical bene fits when the claimant's disease qualifies as an "occupatio nal disease that is covered by this title." 4 We agree with Clinchfiel d that the 1980 ILO Guidelines play a valuable role in dete rmining whether the disease of CWP exists. To be sure, th e three statutor y "stages" employed by Code §§ 65.503(B) and 65.2-504(A) in corporate by refere nce the 1980 ILO Guidelines. See also Va. Work. Comp . R. 11 (table converting multiple ILO "categor ies" to one of thre e statutory "stages"). 5 The principal purp ose of the 1980 ILO Guid elines, howeve r, is to provide "a means for recording system atically the radiographic abnormalities in the chest provoked by the inhalati on of dusts." 1980 ILO Guidelines at 1. The ILO Guidel ines do no t "define pathological entities," id. , or serve as an in flexible matrix for pinpointing the moment a nascent condit ion develops into a diagnosable lu ng disease. We reject Clinchfield's argument that, under ILO interpretative principles, Re ed's 0/1 profus ion rating

4 Code § 65.2-400 defines an "occupational disease" generally, but provides no criteria for diagnosing specific diseases.

5 Under the commission's rating table, the profusion level of opacities for any pneumoconiosis must be at least an ILO category 1/0 to qualify for any staging level under the Act. None of the three statutory stages corresponds to an ILO category 0/-, or 0/0, or 0/1. See Va. Work. Comp. R. 11 (conversion table).

- 10 -disqualifies him as a matter of law fr om receiving a CWP diagnosis. 6 That rating does not, st anding alone, disprove the existence of CWP. Under the ILO Gu idelines, if the pulmonary committee had conc luded that the appearance s were "definitely not pneumoconiosis," id. at 3, no prof usion rating wo uld have been assigned at all and the committee would have relied only on the Symbols and Commen ts sections of the ILO Form. Symbols denote alternative di agnoses such as cancer, emph ysema, fractured ribs, tuberculosis, an d the like. Id. at 9-10. "Com ments must be recorded about appearan ces which are de finitely or probably not pneumoconi osis." Id. at 12. In ad dition, the pulm onary committee noted that the size an d shape of Reed's smal l, rounded opacities fit within the "q" level, deno ting sizes betw een 1.5 and 3 millimeters. Id. at 6. For th ese reasons, we hold that the commission had before it credible medical evidence that Reed suffered from CWP.

IV. In sum, we have no authority to revisit Jones . Both the rationale and th e holding of Jones apply to CWP ju st as much as

6 The 1980 ILO Guid elines set forth fo ur major profusion categories (0, 1, 2, and 3), each with thre e subcategories. They thereby create twelve discrete subcategorie s each containing a numerator indi cating the actual or fi nal classifica tion and a denominator indi cating any other catego ry, if any, seriously considered by th e individual reviewing the radiograph. A category "0" profusion le vel (which includes 0/-, 0/0, and 0/ 1) can be used to indicate that sm all opacities ar e "absent" or that small opacities exist but are "less pr ofuse than the lower limit of category 1." ILO Guidelines at 4. - 11 -they do to asbe stosis. Under Jones , the commission had sufficient evidence to conc lude that Reed has CWP, an occupational disease warranting medical benefits under Code § 65.2-403(B). Affirmed

.

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