                     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.
         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

         1
      No evidence showed that any waivers had ever been filed
with the commission.




                                      2
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.




                                   3
