                     COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Moon, Judge Fitzpatrick and
          Senior Judge Duff
Argued at Alexandria, Virginia


CITY OF ALEXANDRIA

v.   Record No. 1862-94-4                    OPINION BY
                                     CHIEF JUDGE NORMAN K. MOON
EARL J. CRONIN, DECEASED                    JUNE 20, 1995


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Philip G. Sunderland (Amy Marschean; Office
            of the City Attorney, on brief), for
            appellant.
            Jack T. Burgess; (Michael A. Kernbach; Cohen,
            Dunn & Sinclair, P.C., on brief), for
            appellee.



     The City of Alexandria ("the city") appeals the decision of

the commission awarding death benefits to Earl J. Cronin's

estate.    The city contends that the commission erred by making

the award because Cronin was aware that he suffered from an

occupational disease over two years before his estate filed for

death benefits and, therefore, pursuant to Code § 65.2-406(A)(5),

the statute of limitations barred his estate from receiving

compensation.    We agree and reverse the commission's award.

     Cronin served as a firefighter for the City of Alexandria.

In October 1989, Cronin's physician, who was treating Cronin for

hypertension (also an occupational disease), diagnosed Cronin as

suffering from heart disease and recommended in a letter to

Cronin's superior that Cronin be medically retired because of his

heart disease.    Soon afterwards, Cronin filed with the city for
service-connected disability retirement, which pays more benefits

than non-service-connected disability retirement.    In support of

his application, Cronin presented his physician's October 1989

letter to the division chief of the benefits and systems division

of the city's personnel services department.

     On February 1, 1990, Cronin was medically retired from the

city's fire department based upon a "partial disability-service

connected" and, accordingly, was awarded benefits.   Two days

earlier, Cronin signed a form captioned "Retirement Income

Notice, Disability Income Notice" acknowledging and certifying

that his disability for which he was retiring was service-

connected.   The city's retirement plan requires that in order for

an employee to be eligible for service-connected disability

benefits, his or her injury must also be compensable under the

Workers' Compensation Act.
     On February 22, 1992, Cronin suffered a massive heart attack

and died.    A claim for benefits was filed by Cronin's estate for

his death on May 18, 1992.   The city defended the claim on the

ground that the estate was barred by the statute of limitations

because Cronin had been informed that he suffered from an

occupational disease over two years before his death.

     At the hearing, the parties agreed that Cronin received a

formal diagnosis of coronary heart disease in October 1989, but

disputed whether Cronin was informed that his disease was work

related.    The decedent's widow and brother both acknowledged that

Cronin was aware of his heart condition and that there had been

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discussions with the city's personnel services department about

the payment of his medical bills for this condition.   However,

both denied that Cronin ever mentioned his condition's

compensability under the Workers' Compensation Act.    A September

24, 1993 letter from Dr. Richard Schwartz, who reviewed Cronin's

medical records, states that the records do not show that Cronin

was "told by any health care provider that he had a coronary

heart disease related to his employment as a firefighter."
     The city's risk manager in charge of claimants receiving

benefits testified that she met with Cronin extensively from

December 1990 through February 1991.   The risk manager informed

Cronin, who was under the misimpression that he was already

receiving workers' compensation indemnity payments, that were he

to receive such indemnity benefits, they would, under the terms

of the city's pension plan, cause a dollar-for-dollar reduction

in his disability retirement payments, and he would have to

undergo vocational rehabilitation and return to work if possible.

After learning he would achieve no net gain in receiving the

indemnity benefits and that he would be subject to the vocational

rehabilitation program, Cronin opted not to seek an award from

the commission, but applied for service-connected disability

retirement benefits.

     On the estate's death claim, the commission found that

Cronin had "applied for service-connected disability and knew he

could receive an award from the commission for his heart

disease," but that the evidence fell short of establishing the

                              - 3 -
requisite communication to Cronin of his occupational disease

under the Workers' Compensation Act.      The commission ruled that

while Cronin "believed his condition was work related," the

estate was not barred by the limitations period because Cronin

was not "medically advised that his condition was causally

related to his work."

        Code § 65.2-406 (A)(5) which provides, in pertinent part:
        A. The right to compensation under this chapter shall
        be forever barred unless a claim is filed with the
        Commission within . . .
                    *    *    *    *      *   *    *

             5. For all other occupational diseases, two years
        after a diagnosis of the disease is first communicated
        to the employee . . . .


In this case, Cronin filed for service-connected disability

retirement benefits based on a treating physician's letter

recommending that he be "medically retired" because of such

condition, but the letter did not specifically state that

Cronin's condition was work related. 1

        The commission's ruling that Cronin did not receive the

requisite communication because he was not "medically advised [by

a physician] that his condition was causally related to his work"

extends the breadth of existing case law to a point of requiring

proof of a physician's direct communication to the employee that

the disease from which the employee suffers is work related.

    1
       Heart disease is a presumed occupational disease under the
Workers' Compensation Act for police officers and fire fighters.



                                  - 4 -
Under this interpretation of the law, benefits would be available

even if compelling and unrefuted evidence proved the employee's

knowledge of the compensability of his disease.

     By interpreting the statute as requiring proof of a

communication by a physician of the employee's occupational

disease, the commission ignores the fact that, while many

employees may receive a diagnosis of his or her disease from a

physician, the claimants may receive the communication that such

a disease is a compensable occupational disease from someone

other than a physician, often an attorney or someone in charge of

personnel or administering benefits.   The commission's ruling

overlooks practical experience under the Act and the fact that

the compensability of an occupational disease is a creation of

the legislature.   A physician's diagnosis of an employee's

condition is not dispositive on the issue of compensability and

physicians often reach different conclusions about a condition's

origin.
     [O]nce an employee receives a communication of an
     occupational disease, it is incumbent upon that
     employee to file a claim. Once a claim is filed, it is
     the duty of the Commission to determine: (1) whether
     the disease is in fact an "occupational disease" as
     defined in Code § 65.1-46, and if so, (2) whether that
     occupational disease is compensable.


Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343

S.E.2d 455, 458-59 (1986) (footnotes omitted).

     Neither this Court nor the Supreme Court of Virginia has

interpreted Code § 65.2-406 (A)(5) as requiring a communication

from a physician to trigger the running of the limitations

                               - 5 -
period.   We hold that Code § 65.2-406 (A)(5) 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.

See Ratliff v. Dominion Coal Co., 3 Va. App. 175, 349 S.E.2d 147

(1986) (where we held that a 1979 letter from the Department of

Labor was "a medical determination of total disability due to

pneumoconiosis," so as to trigger not only the running of the

three year limitation period under the federal law but also under

the Virginia Workers' Compensation Act).    In Ratliff, we rejected
the claimant's argument that a letter from the Department of

Labor was an administrative or legal determination, not a

"medical determination."    Id.

       Here, we have not only evidence of the physician's diagnosis

of Cronin's heart disease, but evidence that Cronin was aware of

its connection to his employment.     He filed for service-connected

retirement benefits based on the diagnosis more than two years

before his death and before his estate filed a claim with the

commission.   Having applied for and received disability benefits

based upon this diagnosis, Cronin, like Ratliff, was medically

informed that his heart condition was an occupational disease for

which he could receive benefits under the Workers' Compensation

Act.   Indeed, the record establishes and the commission

specifically found that Cronin believed his heart disease was
                                  - 6 -
work related and knew he could receive an award from the

commission.

     We are not persuaded by the claimant's argument that the

statutory language which refers to the time of the "diagnosis" by

definition requires a communication from a physician.   We

distinguish this case from Garrison v. Prince William Co., 220

Va. 913, 265 S.E.2d 687 (1980), in which the Supreme Court of

Virginia held that a deputy sheriff who had been diagnosed with

hypertension in 1975 and filed claim for the same in 1978 was not

barred from receiving compensation because he had not received "a

diagnosis that he suffer[ed] from an `occupational disease': one

arising out of and in the course of employment."   220 Va. at 917,

265 S.E.2d at 689.   That Garrison might have successfully brought

a claim at an earlier date due to the statutory presumption set

forth in Code § 65.1-47.1, the Court said is "irrelevant" to the

resolution of whether the limitations period applied.    Id.

     Unlike Garrison, Cronin was not an unsuspecting employee who

filed with the commission late only after having learned of the

relatively new statutory presumption under then Code § 65.1-47.1.

Rather, Cronin received a medical diagnosis of his heart

condition and acted upon such diagnosis to receive service-

connected disability benefits.    This action proved that Cronin

was informed for purposes of the statute.

     Accordingly, we reverse the commission's award.
                                          Reversed and dismissed.



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