COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Richmond, Virginia 

UNINSURED EMPLOYER'S FUND 

 OPINION BY 

v. Record No. 2116-96-3 JUDGE JAMES W. BENTON, JR. 

 APRIL 22, 1997 

HAROLD C. MOUNTS, 

 GREASY CREEK COAL COMPANY AND 

 VIRGINIA PROPERTY AND CASUALTY 

 INSURANCE GUARANTY ASSOCIATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 John J. Beall, Jr., Senior Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Richard L. Walton, Jr., Senior 

Assistant Attorney General; James W. Osborne, 

Assistant Attorney General, on briefs), for 

appellant. 

 Vincent J. Carroll for appellee Harold C. 

Mounts. 

 Dabney J. Carr, IV (Mays & Valentine, L.L.P., 

on brief), for appellee Virginia Property and 

Casualty Insurance Guaranty Association. 

 No brief or argument for appellee Greasy 

Creek Coal Company. 

 The Uninsured Employer's Fund appeals from a ruling of the 

Workers' Compensation Commission requiring the employer, Greasy 

Creek Coal Company, and the Fund to provide Harold C. Mounts 

disability benefits based on first stage pneumoconiosis. The 

Fund contends that because Greasy Creek was insured as required 

by Code § 65.2-801 when Mounts was last injuriously exposed to 

coal dust, the commission erred in ruling that the Fund was 

liable for Mounts' disability. The Fund also contends that even 
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if it is liable, Mounts is barred from making this claim because 

he received a diagnosis of pneumoconiosis in 1984, nine years 

before he filed his claim. For the reasons that follow, we 

affirm the award. 

 I. 

 This matter initially was heard by a deputy commissioner 

without the inclusion of the Fund as a party. At the conclusion 

of those proceedings, the commission issued an opinion holding 

the Fund liable for paying Mounts' benefits. When the Fund 

learned of the award, it filed a motion for reconsideration 

because it had not been made a party to the proceedings. The 

commission vacated its award and remanded the case for a new 

hearing with all of the parties properly joined. 

 The evidence before the deputy commissioner at the second 

hearing proved that Mounts sought employment in 1984 with James 

Estep, a contractor who supplied workers for United Coal 

Corporation. United required Estep's employees to have a 

pre-employment physical examination. Mounts testified that after 

he was examined at a hospital, he asked the man who interpreted 

the x-rays, "what did my x-rays show . . . ?" Mounts testified 

that the man answered, "nothing." Mounts further testified that 

he did not know whether the man was a doctor. 

 The examination form that was prepared at the hospital and 

dated July 30, 1984 states that the x-ray indicated "possible 

pneumoconiosis." Mounts took the forms to the United personnel 
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office after the examination. While he was at the personnel 

office, Mounts signed employment documents, including a form that 

states above his signature, "the undersigned hereby waives the 

right to claim compensation benefits covering . . . occupational 

pneumoconiosis." Mounts testified that he signed the forms 

because he was told that he had to do so to be employed and that 

he was unaware that he was signing a waiver. Mounts also 

testified that he only completed five years of schooling and is 

unable to read. Mounts was employed by Estep and worked in 

United's coal mines. 

 Lois Gillespie, a United employee, testified that although 

she witnessed Mounts' signature on the waiver card, she did not 

remember Mounts. Gillespie testified that the purpose of the 

waiver was to bar "black lung" claims against Estep. She also 

testified that her "personal policy" was to tell potential 

employees, such as Mounts, "that they had a positive diagnosis 

for black lung, that [the form] was a waiver[, and] that if they 

signed they could not file for . . . black lung against the 

company they were going to work for." Gillespie testified that 

if a potential employee would not sign the form, Estep would not 

hire that person. Gillespie also testified that her records did 

not indicate that the waiver had been approved by the commission. 

 After Mounts' employment in United's mines ended, he was 

employed by Greasy Creek Coal Company. Mounts suffered a 

work-related injury to his back on October 12, 1988 while working 
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for Greasy Creek and stopped working because of that disability. 

 Greasy Creek was Mounts' last employer. 

 On August 16, 1991, a court in Pennsylvania declared 

insolvent Greasy Creek's workers' compensation insurance carrier, 

Rockwood Insurance, and appointed a liquidator. The liquidator 

gave notice that all creditors and other interested persons were 

to assert their claims before August 26, 1992. 

 Alleging that on September 15, 1993 he received a diagnosis 

of pneumoconiosis, Mounts filed with the commission on September 

24, 1993 a claim for benefits against Greasy Creek for an 

occupational disease. Mounts notified Virginia Property and 

Casualty Insurance Guaranty Association, the statutory 

association established to provide protection when insurance 

companies are insolvent, see Code § 38.2-1600, that he was filing 

for benefits for pneumoconiosis. The Association informed Greasy 

Creek that it was "unable to offer a defense on [Greasy Creek's] 

behalf" because Mounts' claim for benefits was not filed within 

the one-year deadline for filing claims with the liquidator 

against Rockwood, the insolvent insurance carrier. See Code 

§ 38.2-1606(A)(1)(ii). 

 Based on this evidence, the deputy commissioner found that 

even though Mounts testified that he could not read the waiver 

form and was not informed that the waiver said he had 

pneumoconiosis, Mounts' signature on the 1984 waiver established 

that he received a communication of the diagnosis of 
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pneumoconiosis. Thus, the deputy commissioner ruled that Mounts' 

claim was barred by the statute of limitations. Mounts requested 

a review. The Association also filed a request for review to 

protect its defense that it could not be held liable. 

 On review, the commission found that the waiver form had not 

been filed with the commission as required by Code § 65.2-407 and 

that Mounts had not been told that he had an occupational disease 

when he signed the form. The commission also found that Mounts 

received his first communication that he had pneumoconiosis in 

1993 and that the evidence proved that Mounts had the disease. 

Thus, the commission reversed the deputy commissioner's ruling, 

granted Mounts benefits, and ruled that the Fund was required to 

pay the benefits. 

 II. 

 The Fund disputes the commission's finding that the Fund is 

liable for Mounts' claim. It argues that because Greasy Creek 

was insured on the date of Mounts' last exposure to the hazardous 

substance, Greasy Creek met the requirements of Code § 65.2-801. 

 Therefore, the Fund argues, it cannot be held liable under Code 

§ 65.2-1203(A). 

 Code § 65.2-1203(A) provides as follows: 

 Whenever, following due investigation of a 

claim for compensation benefits, the 

Commission determines that (i) the employer 

of record has failed to comply with the 

provisions of § 65.2-801 . . . , and (ii) the 

claim is compensable, the Commission shall 

 . . . order payment of any award of 

compensation benefits pursuant to this 

chapter from the Uninsured Employer's Fund. 
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Id. Code § 65.2-801 provides, in relevant part, as follows: 

 A. Every employer subject to this title 

shall secure his liability thereunder by one 

of the following methods: 

 1. Insuring and keeping insured his 

liability in an insurer authorized to 

transact the business of workers' 

compensation insurance in this 

Commonwealth . . . . 

Id. (emphasis added). 

 To read Code § 65.2-801 to require only that employers have 

insurance on the date of the employee's last exposure, and not on 

the date when the diagnosis of the disease was communicated to 

the employee, would exempt employers from insuring themselves 

against a great number of occupational disease claims. Moreover, 

Code § 65.2-801, by its use of the phrase "keeping insured," 

requires employers to remain insured. Therefore, we hold that 

because Greasy Creek was not insured on the date the diagnosis 

was communicated to Mounts, Greasy Creek failed to "keep[] 

[itself] insured" as required by Code § 65.2-801. 

 The Fund also contends that because the employer was insured 

on the date of the last exposure, Code § 65.2-404 exempts the 

Fund from liability. The Fund argues that only the insurance 

carrier that insured the employer's liability when the last 

injurious exposure occurred can be held liable. We disagree. 

Code § 65.2-404 states that "the employer in whose employment 

[the employee] was last injuriously exposed to the hazards of the 

disease and the employer's insurance carrier, if any, at the time 
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of the exposure, shall alone be liable . . . , without right to 

contribution from any prior employer or insurance carrier." By 

its terms, Code § 65.2-404 addresses only the liability of the 

employer in whose employment the employee was last injuriously 

exposed, and its insurance carrier, in contradistinction to prior 

employers and their insurance carriers. Code § 65.2-404 

identifies the employer that is to be held liable and excludes 

prior employers from liability. See Cooper v. Mary E. Coal 

Corp., 215 Va. 806, 214 S.E.2d 162 (1975). Nothing in Code 

§ 65.2-404 was intended to release employers from the duty of 

"keeping [themselves] insured" as required by Code § 65.2-801 or 

to exempt the Fund when the employer has breached its statutory 

obligation. 

 Accordingly, we hold that the commission properly ruled that 

the Fund was responsible for payment of benefits to Mounts. "The 

purpose of the Fund is to insure that injured employees will be 

paid their compensation benefits even though their employer has 

breached his duty [under Code § 65.2-801]." A.G. Van Metre, Jr., 

Inc. v. Gandy, 7 Va. App. 207, 213, 372 S.E.2d 198, 202 (1988). 

 The Fund further argues that under the circumstances of this 

case, the statutes vest in the Virginia Property and Casualty 

Insurance Guaranty Association the obligation to pay the 

benefits. We disagree. The General Assembly created the 

Association to "provide prompt payment of covered claims to 

reduce financial loss to [any person instituting a liability 
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claim] or policyholders resulting from the insolvency of an 

insurer." Code § 38.2-1600; see also Code § 38.2-1602. The 

Association's duties and powers are explicitly defined by 

statute. See Code § 38.2-1606. 

 The statutory scheme requires the Association to pay "[t]he 

full amount of a covered claim for benefits under a workers' 

compensation insurance coverage." Code § 38.2-1606(A)(1)(i). 

However, that statutory duty is limited by the proviso that 

"[n]otwithstanding any other provision of this chapter, a covered 

claim shall not include any claim filed with the . . . 

Association after the final date set by the court for the filing 

of claims against the liquidator or receiver of an insolvent 

insurer." Code § 38.2-1606(A)(1)(ii). The legislation that 

created the Association, "considered as a whole, clearly 

indicates that the General Assembly did not intend . . . the 

Association . . . [to be] merely a solvent substitute for an 

insolvent insurance company." Virginia Property and Cas. Ins. 

Guar. Ass'n v. International Ins. Co., 238 Va. 702, 703, 385 

S.E.2d 614, 616 (1989). 

 When the Pennsylvania court declared Rockwood to be 

insolvent, the court-appointed liquidator set August 26, 1992 as 

the last date for filing claims. The evidence proved that 

Mounts' claim for benefits was not filed until 1993. Clearly, 

the Association was barred by statute from considering Mounts' 

claim to be "a covered claim," Code § 38.2-1606(A)(1)(ii), and 
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was not authorized to pay benefits. Accordingly, we hold that 

the commission properly ruled that the Fund, not the Association, 

was liable for payment of Mounts' claim. 

 III. 

 The Fund next argues that Mounts received a communication of 

his diagnosis in 1984 and that, therefore, his claim is barred by 

the statute of limitations because it was not filed until 1993. 

We disagree. 

 Whether a diagnosis of an occupational disease was 

communicated and when the communication occurred are factual 

determinations to be made by the commission upon the evidence. 

See Roller v. Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 

323, 326 (1989). Upon appellate review, the findings of fact 

made by the commission will be upheld when supported by credible 

evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 

512, 515, 382 S.E.2d 487, 488 (1989). 

 Viewed in the light most favorable to Mounts, who prevailed 

before the commission, see Fairfax County v. Espinola, 11 Va. 

App. 126, 129, 396 S.E.2d 856, 858 (1990), the evidence proved 

that the pre-employment physical examination form that Mounts 

received after his examination in the hospital indicated only 

"possible pneumoconiosis." An opinion that an employee "may have 

pneumoconiosis," Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 

51, 122 S.E.2d 666, 668 (1961), is not a positive diagnosis of an 

occupational disease because it "would indicate that claimant 
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might or might not have had pneumoconiosis." Id. at 52, 122 

S.E.2d at 669. Such a diagnosis is "not sufficiently definite to 

apprise [an employee] that he had contracted the disease." Id. 

Consequently, we hold that this "tentative diagnosis will not 

trigger the running of the limitation period." Via v. Citicorp 

Mortgage, Inc., 10 Va. App. 572, 576, 394 S.E.2d 505, 507 (1990). 

 Even if the medical forms had been more definite, credible 

evidence supports the commission's ruling that Mounts did not 

receive a communication of pneumoconiosis in 1984. When Mounts 

was examined at the hospital prior to being employed by Estep, he 

received an x-ray and inquired about it. Mounts testified that 

when he asked the man who interpreted his x-ray what the x-ray 

showed, the man said it showed "nothing." As the trier of fact, 

the commission determined the weight of this evidence and the 

credibility of the witness. See Goodyear Tire & Rubber Co. v. 

Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). Because 

the commission accepted Mounts' testimony, credible evidence 

supports its finding. See id. 

 The evidence also proved that Mounts cannot read. Although 

Mounts signed a form indicating that he "waiv[ed his] right to 

claim compensation benefits . . . [for] pneumoconiosis," Mounts 

was told that he had to sign the employment forms to obtain work. 

 Gillespie, the personnel employee who witnessed Mounts' 

signature, testified that she had no memory of Mounts because she 

witnessed forms for thousands of prospective employees. The 
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commission was not required to believe that, because she said her 

personal policy was to explain the forms, she did so in this 

instance. The commission accepted Mounts' testimony that she did 

not explain the forms to him. See id.

 Citing Jewell Ridge Coal Corp. v. Vance, 203 Va. 557, 125 

S.E.2d 879 (1962), the Fund contends that, as a matter of law, 

Mounts' illiteracy "has no impact on the effectiveness of the 

communication of the knowledge imparted by the written report." 

We disagree with the Fund's interpretation of Vance. Although 

Vance "could neither read nor write," id. at 558, 125 S.E.2d at 

880, a witness testified that he heard a personnel office 

employee explain the physician's report to Vance, tell Vance that 

his chest examination was below the required physical standards, 

and inform Vance that Vance "'would have to waive his right to 

claim compensation for silicosis or any aggravation of it.'" Id.

at 559, 125 S.E.2d at 880. The witness testified that Vance 

deliberated for more than thirty minutes and then signed the 

waiver. See id. On this evidence, the Court held that "the 

Commission found as a fact that [Vance] executed the waiver under 

the circumstances related by [the witness], and . . . this 

finding is binding on [appeal]." Id. at 559, 125 S.E.2d at 881 

(emphasis added). 

 Although Mounts, like Vance, could not read, unlike in 

Vance, the commission found from the evidence in this case that 

the forms were not orally explained to Mounts. Nothing in Vance
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holds that an employee who is unable to read shall be presumed to 

know the contents of a document merely because the employee 

signed the document. The commission found that Mounts was not 

told that he had an occupational disease when he signed the 

documents. Obviously, when the commission accepted Mounts' 

version of the events it accepted as true that neither the person 

who interpreted Mounts' x-rays nor Gillespie informed Mounts of a 

diagnosis of pneumoconiosis. Where "'reasonable inference[s may] 

. . . be drawn from [the] evidence to support the Commission's 

[factual] findings, they will not be disturbed by this Court on 

appeal.'" Board of Supervisors v. Taylor, 1 Va. App. 425, 431, 

339 S.E.2d 565, 568 (1986) (citation omitted). Thus, credible 

evidence supports the commission's findings that Mounts was 

unable to read the information on the waiver form and that he was 

not informed of the import of the information on the form. 

Accordingly, those findings are binding on this appeal. See

James, 8 Va. App. at 515, 382 S.E.2d at 488. 

 Gillespie testified that her records did not reveal that the 

waiver had been approved by the commission. Based upon that 

evidence, the commission properly found that the waiver form was 

not filed with the commission or approved by the commission as 

required by Code § 65.2-407. Accordingly, the waiver has no 

affect on Mounts' claim for benefits. 

 Credible evidence in the record proved that Mounts received 

a definite communication of pneumoconiosis on September 15, 1993. 
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 Accordingly, Mounts' September 24, 1993 application was not 

barred by the statute of limitations. Furthermore, credible 

evidence supports the commission's finding that Mounts sustained 

first stage coal workers' pneumoconiosis. Accordingly, we affirm 

the award. 

 Affirmed.