COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, AtLee and Senior Judge Haley

DICKENSON-RUSSELL COAL COMPANY, LLC AND

 BRICKSTREET MUTUAL INS. CO.

MEMORANDUM OPINION*

v. Record No. 0328-21-3 PER CURIAM

AUGUST 31, 2021

LARRY KISER

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Timothy W. Gresham; Kendra R. Prince; Penn, Stuart & Eskridge,

on brief), for appellants.

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

Dickenson-Russell Coal Company, LLC and Brickstreet Mutual Ins. Co. (collectively 

“employer”) appeal a decision of the Workers’ Compensation Commission awarding total 

disability benefits to Larry Kiser (claimant). On appeal, employer contends that the Commission 

relied on insufficient evidence in finding that claimant was permanently and totally disabled 

under Code § 65.2-504(A)(4) and that the Commission improperly discredited the opinion of 

employer’s medical expert. Upon reviewing the record and briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily affirm the decision of the 

Commission. See Rule 5A:27.

BACKGROUND

This Court views the evidence in the light most favorable to the party who prevailed before 

the Commission. Paramont Coal Co. Virginia, LLC v. McCoy, 69 Va. App. 343, 349 (2018). 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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Therefore, the appellant here must show that the Commission committed reversible error. Jones v. 

Crothall Laundry, 69 Va. App. 767, 774 (2019).

This appeal arises out of claimant’s underlying workers’ compensation claim for 

pneumoconiosis. On September 14, 2017, Dr. M.R. Ramakrishnan diagnosed claimant with 

pneumoconiosis. Claimant then filed a claim with the Workers’ Compensation Commission 

asserting that he developed pneumoconiosis and lost pulmonary function as the result of his 

exposure to coal dust while working for employer. On January 27, 2020, the Commission 

determined claimant contracted first stage pneumoconiosis and awarded him benefits for fifty 

weeks.

Claimant subsequently filed a claim seeking permanent disability benefits due to the 

pneumoconiosis. On March 12, 2020, Dr. Emory Robinette completed a questionnaire in relation to 

claimant’s claim in which he (1) instructed claimant not to attempt to do any work in a mine or 

dusty environment and (2) confirmed that claimant had a “sufficient pulmonary function loss as 

shown by approved medical tests and standards to render him totally unable to do manual labor in a 

dusty environment.” Dr. Robinette commented in the questionnaire: “progressive xray changes 

consistent with complicated CWP [coal workers’ pneumoconiosis]/PMF [progressive massive 

fibrosis].” In a June 3, 2020 deposition, Dr. Robinette testified that claimant’s CT scans, 

spirometry, and diffusion capacity demonstrated that claimant was unable to perform manual labor 

in a dusty environment and that his review of all of the data caused him to conclude that claimant 

had suffered a fifteen percent loss of lung function.

Claimant was also examined by Dr. Gregory J. Fino. In his March 13, 2018 report, Dr. Fino

concluded that claimant did not suffer from pneumoconiosis. On July 30, 2020, Dr. Fino issued 

another report with respect to claimant’s total disability claim, which found that claimant’s blood 

gases and pulmonary function studies were normal and there was “no objective evidence of any 
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disability.” Dr. Fino found no evidence that claimant had stage one pneumoconiosis or “sufficient 

pulmonary function loss to prevent him from doing heavy manual labor in a coal mine or any other 

dusty environment.”

On November 19, 2020, a deputy commissioner denied claimant permanent disability

benefits. Claimant requested review by the Commission, and on March 4, 2021, the Commission 

reversed the decision of the deputy commissioner and awarded permanent disability benefits. This 

appeal followed.

ANALYSIS

Employer argues that the Commission erred in awarding total disability benefits to claimant

because Dr. Robinette did not use “approved medical tests and standards” to prove that claimant 

was rendered “totally unable to do manual labor in a dusty environment” as required by 

Code § 65.2-504(A)(4). Additionally, employer argues that the Commission erred in discrediting 

Dr. Fino’s medical opinion and relying on Dr. Robinette’s opinion.

Under Code § 65.2-504(A)(4), an employee with pneumoconiosis qualifies for permanent 

disability if the employee demonstrates that the disease 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.” In addition, the employee must also be 

“instructed by competent medical authority not to attempt to do work in any mine or dusty 

environment,” and the employee must “in fact not [be] working.” Code § 65.2-504(A)(4).

I.

Employer argues that Code § 65.2-504(A)(4) requires “approved medical tests and 

standards” to demonstrate that claimant was unable to perform manual labor in a mine or dusty 

environment. Employer further contends that “any medical report or opinion submitted by the 

claimant must show the claimant’s pulmonary function loss is sufficient to render him unable to do 
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manual labor in a dusty environment.” Specifically, employer argues that the Commission erred in 

awarding permanent disability benefits to claimant because Dr. Robinette did not rely on the 

pulmonary function tests to determine that claimant was totally unable to perform manual labor in a 

dusty environment, but rather considered other tests, including radiographic ones. Additionally, 

employer asserts that Dr. Robinette’s conclusion that claimant could not work in a dusty 

environment was erroneously based on his diagnosis that claimant had complicated pneumoconiosis 

as opposed to simple pneumoconiosis.

This Court recently determined what evidence was sufficient to demonstrate that an 

employee is unable to perform manual labor in a mine or dusty environment under the statute. See 

McCoy, 69 Va. App. 343. In McCoy, the Court rejected the employer’s argument that the medical 

opinion supporting the employee’s inability to work must be based on particular “medical tests and 

standards. Id. at 355-56. The Court found that “approved medical tests and standards” were 

required to prove pulmonary function loss and that “[t]he remainder of the relevant subsection, ‘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.” Id. (quoting 

Code § 65.2-504(A)(4)). Thus, a physician may use information gained from sources other than 

“approved medical tests” to determine that an employee is unable to work in a dusty environment. 

Id. at 355.

Contrary to employer’s assertion, Dr. Robinette was not confined to the pulmonary function 

tests to conclude that claimant was unable to work. He was permitted to rely on CT scans, 

spirometry, diffusion capacity, and other information in forming his conclusion. Therefore, viewing 

the evidence as a whole and in the light most favorable to claimant, the record supports both the 

conclusion that claimant had suffered a fifteen percent loss of lung function and that he was totally 

unable to perform manual labor in a dusty environment.
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Employer also argues that Dr. Robinette’s opinion regarding claimant’s ability to work rests 

on the allegedly flawed premise that claimant had complicated pneumoconiosis. Because the 

Commission previously had decided that claimant suffered from stage one pneumoconiosis, the 

Commission only analyzed whether any stage of pneumoconiosis rendered claimant totally unable 

to perform manual labor in a dusty environment. Based on credible evidence from Dr. Robinette, 

the Commission determined that claimant’s pneumoconiosis did render him unable to work.

II.

Employer argues that the Commission erred in discrediting the opinion of Dr. Fino while 

relying on the opinion of Dr. Robinette. Employer notes the Commission gave less weight to

Dr. Fino’s opinion because he opined that claimant did not suffer from pneumoconiosis despite the 

Commission’s prior ruling that claimant suffered from stage one pneumoconiosis. Nevertheless, 

employer contests the Commission’s reliance on Dr. Robinette’s medical opinion because 

Dr. Robinette concluded that claimant suffered from complicated, as opposed to simple,

pneumoconiosis.

Conflicting expert medical opinions are questions of fact to be determined by the 

Commission and are binding on this Court. Advance Auto & Indem. Ins. Co. of N. Am. v. Craft, 63 

Va. App. 502, 522 (2014). When experts disagree, the Commission is responsible for determining 

the probative weight to be accorded to each expert. Id. If credible evidence supports the 

Commission’s determination, the determination is binding on this Court. Id.

The Commission is responsible for weighing and considering conflicting expert medical 

opinions. The Commission rejected Dr. Fino’s opinion because it conflicted with the previously 

determined diagnosis that the claimant suffered from pneumoconiosis. Considering the totality of 

the record, the Commission did not err in rejecting Dr. Fino’s opinion and accepting Dr. Robinette’s 

opinion.
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CONCLUSION

For these reasons, we summarily affirm the Commission’s decision. See Rule 5A:27.

Affirmed.