COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

TOWN OF BLUEFIELD 

AND 

VML INSURANCE PROGRAMS MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 0755-96-3 AUGUST 27, 1996 

 

JACK W. ASBURY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (John P. Grove; Elizabeth K. Dillon; Woods, 

Rogers & Hazlegrove, on briefs), for 

appellants. 

 (Frederick W. Harman; Jack S. Hurley, Jr.; 

Dudley, Galumbeck & Simmons, on brief), for 

appellee. 

 Town of Bluefield and its insurer (hereinafter collectively 

referred to as "employer") contend that the Workers' Compensation 

Commission erred in finding that the applicable statute of 

limitations did not bar the commission from considering Jack W. 

Asbury's ("claimant") claim for compensation related to an 

occupational disease. Claimant filed his claim on July 25, 1995, 

alleging an occupational disease of coronary artery disease and 

seeking compensation benefits beginning May 25, 1994 and medical 

benefits. Employer argues that claimant received communication 

of an occupational disease in 1992 when Dr. Seif Martini, a 

cardiologist, advised claimant that he suffered from coronary 

artery disease. Upon reviewing the record and the briefs of the 

 

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

designated for publication. 
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parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 Code § 65.2-406(A)(5) required claimant to file his claim 

within two years after he received a diagnosis of his disease. 

This code section 

 does not require that an employee receive 

from a physician a communication that his 

disease is work-related; rather, the statute 

only requires that the employee, 

simultaneously with or sometime after the 

diagnosis of his condition, learn that the 

condition is an occupational disease for 

which compensation may be awarded. 

City of Alexandria v. Cronin, 20 Va. App. 503, 508-09, 458 S.E.2d 

314, 317 (1995), aff'd, ___ Va. ___, 471 S.E.2d 184 (1996). 

 In rejecting employer's argument, the commission found: 

 The claimant was informed in 1992 by his 

doctor that he had heart disease. However, 

the doctor did not tell him at that time that 

the condition was work-related despite the 

claimant's question in that regard. Nor did 

the employer advise the claimant that he had 

a compensable condition. The only evidence 

suggesting a 1992 diagnosis was the doctor's 

officer manager's letter to the Commission 

stating that the claimant did not have a 

compensable condition. Under these 

circumstances, we do not find that the 

claimant was informed prior to 1994 that his 

heart disease is work-related. 

 If and when a diagnosis of an occupational disease is 

communicated to a claimant is a finding of fact. See Roller v. 

Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989). 

 On appeal, findings of fact made by the commission will be 
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upheld when supported by credible evidence. James v. Capitol 

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989). 

 Here, evidence showed that claimant received a diagnosis of 

coronary artery disease in 1992 from Dr. Martini; however, no 

evidence showed that claimant knew that his disease was 

work-related before May 25, 1994. While claimant may have 

suspected in 1992 that his employment may have caused his 

condition and he questioned Dr. Martini regarding this matter, 

Dr. Martini specifically denied that claimant's condition was 

work-related. A July 1992 letter from Dr. Martini's officer 

manager to the commission contained a statement that claimant's 

disease was not compensable. In light of this undisputed 

evidence, claimant's suspicions, if they existed in 1992, that 

his disease was work-related, were not sufficient to constitute a 

communication of an occupational disease. Unlike the facts in 

Cronin, no evidence in this case proved that any physician ever 

told claimant he suffered from a work-related disease or that he 

knew that his disease arose out of and in the course of his 

employment before May 25, 1994. See Cronin, 20 Va. App. at 

509-10, 458 S.E.2d at 317. Thus, based upon this record, we 

cannot find as a matter of law that the commission erred in 

holding that claimant's July 25, 1995 application was not barred 

by the applicable statute of limitations. 

 Accordingly, we affirm the commission's decision. 
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 Affirmed.