COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

DOMINION COAL CORPORATION 

AND 

JEWELL RESOURCES CORPORATION 

v. Record No. 2063-95-3 MEMORANDUM OPINION*

 PER CURIAM 

THOMAS MILTON ROBERTS MARCH 5, 1996 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (S. T. Mullins; Street, Street, Street, Scott & 

Bowman, on brief), for appellants. 

 (Thomas Milton Roberts, pro se, on brief). 

 Dominion Coal Corporation 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 Thomas Milton Roberts' claim. The claim was filed on 

February 17, 1995, alleging an occupational disease of coal 

workers' pneumoconiosis. Employer argues that claimant received 

 communications of an occupational disease when he signed waivers 

in 1974 and 1979, which began the running of the applicable 

limitations period. 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. 

 

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

designated for publication. 
 2 

 Code § 65.2-406(A)(1) provides that a claim for compensation 

for coal workers' pneumoconiosis is forever barred unless it is 

filed within "three years after a diagnosis of the disease, as a 

category 1/0 or greater as classified under . . ., is first 

communicated to the employee or within five years from the date 

of the last injurious exposure in employment, whichever occurs 

first." 

 In rejecting employer's argument, the commission ruled that 

claimant's testimony that he signed two previous waivers, in 

itself, did not establish a communication, nor act as a time 

bar.1

 In so ruling, the commission stated that, "[o]nly a waiver 

for pneumoconiosis, approved by the Commission, would work to 

begin the running of the statute of limitations." 

 If and when a diagnosis of an occupational disease is 

communicated to a claimant it is a finding of fact. 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. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 

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

 No evidence proved that any qualified physician in 1974 or 

1979 communicated a diagnosis of coal workers' pneumoconiosis of 

a category 1/0 or greater to claimant. Although claimant 

 

 1No evidence showed that any waivers had ever been filed 

with the commission. 
 3 

testified in general terms that he signed waivers, he denied that 

he was ever told or knew that he suffered from pneumoconiosis 

before May 1994. Rather, he stated that, in 1979, the doctor 

told him he had lung cancer. However, no evidence showed that 

claimant was ever told or knew that this disease arose out of and 

in the course of his employment. The uncontradicted medical 

evidence showed that claimant first received a communication of 

coal workers' pneumoconiosis in May 1994, when his chest x-ray 

was read as positive for category one coal workers' 

pneumoconiosis. This evidence is credible, and it supports the 

commission's finding. 

 Based upon this record, we cannot find as a matter of law 

that the commission erred in holding that claimant's February 17, 

1995 application was not barred by the applicable statute of 

limitations. 

 Accordingly, we affirm the commission's decision. 

 Affirmed.