                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Felton and McClanahan
Argued at Salem, Virginia


HAR-LEE COAL COMPANY AND
 AMERICAN INTERNATIONAL SOUTH
 INSURANCE COMPANY                                    MEMORANDUM OPINION∗ BY
                                                   JUDGE ELIZABETH A. McCLANAHAN
v.     Record No. 0959-04-3                               NOVEMBER 9, 2004

PAUL EVANS MULLINS


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 S. Vernon Priddy III (Sarah Y. M. Kirby; Sands Anderson Marks &
                 Miller, on briefs), for appellants.

                 Kerry S. Hay (Paul L. Phipps; Lee & Phipps, P.C., on brief), for
                 appellee.


       Har-Lee Coal Company appeals a decision by the Workers’ Compensation Commission

finding that Paul Mullins (claimant) suffered from compensable first-stage pneumoconiosis.

Har-Lee complains that the commission erred by: (1) holding claimant met his burden of

proving he suffers from first-stage pneumoconiosis; (2) concluding that the physicians who

found that claimant had abnormalities consistent with pneumoconiosis were qualified to read

claimant’s x-ray; (3) giving greater weight to the x-ray interpretations of the doctors who found

that claimant had abnormalities consistent with pneumoconiosis; (4) failing to hold that the

evidence was in equipoise and that claimant was bound by the pulmonary committee’s decision;

(5) denying Har-Lee’s motion to vacate the review opinion and remand for further proceedings;

(6) violating Har-Lee’s right to due process by retroactively applying reasoning from a case



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
issued after the decision of the deputy commissioner; and (7) working an imposition upon

Har-Lee. For the reasons below, we affirm the commission’s decision.

                                           I. Background

       On appeal from a decision from the commission, “we view the evidence in the light most

favorable to the party prevailing below” and grant that party the benefit of all reasonable

inferences. Tomes v. James City (County of) Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312,

315 (2002) (citing R.G. Moore Building Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,

788 (1990)); Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002);

Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997). On February 6,

2003, Paul E. Mullins filed a claim for benefits with the Virginia Workers’ Compensation

Commission. Along with his claim for benefits, Mullins filed three “B” pneumoconiosis

readings of his chest x-ray, which were performed by Drs. Radebaugh, Foreman, and

Ramakrishman.

       Drs. Radebaugh and Foreman determined that the x-ray had a category 1 quality and that

it revealed abnormalities consistent with pneumoconiosis.1 Dr. Ramakrishman determined that

the x-ray had a category 2 quality and that it revealed abnormalities consistent with

pneumoconiosis. Mullins received a letter from Dr. Edward Petsonk, a team leader with the

National Institute for Occupational Safety and Health (NIOSH) Division of Respiratory Disease

Studies, explaining that the physicians who read Mullins’ x-ray had taken classes and/or exams

on how to recognize and classify pneumoconiosis on chest x-rays.




       1
          According to the NIOSH roentgenographic interpretation form, the quality of an x-ray
film is classified according to its readability: a category 1 x-ray signifies the film is original; a
category 2 x-ray indicates the film is a copy; a category 3 x-ray denotes the film is an
under/overexposed copy or has other imperfections. The film may also be categorized as “U/R,”
or unreadable.
                                                  -2-
       Following Mullins’ disability claim, Har-Lee Coal Company hired three “B” readers to

review a copy of Mullins’ x-ray. Drs. Wheeler, Scott, and Scatarige identified the x-ray as

having a category 3 quality and concluded that it revealed no abnormalities consistent with

pneumoconiosis.

       While the claim was before the deputy commissioner, a copy of Mullins’ x-ray was sent

to the pulmonary committee. The pulmonary committee declined to interpret the film, noting

that it was a copy and, therefore, unreadable. The deputy commissioner denied Mullins’ claims

on the basis that he failed to prove by a preponderance of the evidence that he had a compensable

level of pneumoconiosis. Mullins requested a review of the deputy commissioner’s opinion.

The commission reversed the deputy commissioner’s decision and awarded benefits.

                                           II. Analysis

       Har-Lee argues that Mullins produced no credible evidence to show that the three doctors

who read his x-ray and found abnormalities consistent with pneumoconiosis were qualified to

render such opinions. “Factual findings by the commission that are supported by credible

evidence are conclusive and binding upon this Court on appeal.” So. Iron Works, Inc. v.

Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). Mullins’ evidence that the three

doctors interpreting his x-ray were qualified included a letter written by Dr. Edward Petsonk, a

team leader with the NIOSH Division of Respiratory Disease Studies. The letter from

Dr. Petsonk was sent to Mullins, and noted that “[e]ach chest x-ray is evaluated by doctors who

have taken a special course on how to recognize and classify pneumoconiosis on chest x-rays (A

reader) and/or who have passed a test showing that he or she can accurately classify chest x-rays

with pneumoconiosis (B reader).” In addition, each of the doctors’ roentgenographic

interpretation (x-ray reading) reports specified that a “B” reading was made, which was indicated

by an “x” marked over the “B” box under “type of reading.” The commission can draw a

                                               -3-
reasonable inference from such evidence that a “B” reader made the reading. Based on this

evidence, the commission concluded, “these doctors were qualified to render opinions as

physicians evaluating the claimant’s x-ray for the National Institute for Occupational Safety and

Health.” The commission’s findings, if supported by credible evidence or reasonable inferences

drawn from the evidence, will not be disturbed upon review, even though the record may contain

evidence to support a contrary finding. Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App.

276, 279, 348 S.E.2d 876, 877 (1986).

       Har-Lee next argues that the commission erred in giving greater weight to the two

doctors who observed a quality 1 x-ray over the three physicians hired by appellant who

observed quality 3 x-rays.

               We do not retry the facts before the commission, nor do we review
               the weight, preponderance of the evidence, or the credibility of
               witnesses. If there is evidence or a reasonable inference that can
               be drawn from the evidence to support the [c]ommission’s finding,
               they will not be disturbed by this court on appeal.

Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334 S.E.2d 592, 595 (1985) (citation

omitted); see also Kim v. Sportswear, 10 Va. App. 460, 465, 393 S.E.2d 418, 421 (1990).

       The commission considered the x-ray interpretations of six physicians. It gave greater

weight to the two doctors who interpreted an original, category 1, x-ray, stating, “[w]e conclude

that these doctors were qualified to render opinions as physicians evaluating the claimant’s

x-ray . . . [m]oreover, we are more persuaded by their opinions than by the opinions of the other

doctors who offered opinions in this case – who reviewed a copy of the claimant’s x-ray.” See

Riley v. Consolidation Coal Co., VWC File No. 196-94-41 (November 16, 2000) (“[T]he

Commission does not consider copies of x-rays as worthy of interpretation for evidentiary

purposes in pneumoconiosis cases, and we generally give little weight to the interpretations of

such technically inferior radiographs.”). Medical evidence is subject to the commission’s

                                               -4-
consideration and weighing. Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991). Therefore, the commission has the authority to give greater weight to

interpretations based on higher quality x-rays. The commission’s findings, if supported by

credible evidence or reasonable inferences drawn from the evidence, will not be disturbed upon

review, even though the record may contain evidence to support a contrary finding. Morris, 3

Va. App. at 279, 348 S.E.2d at 877.

       Har-Lee next argues that the commission erred by failing to find that claimant was bound

by the pulmonary committee’s decision. Har-Lee argues that the claimant stipulated that he

would be bound by the decision of the pulmonary committee and that, because the pulmonary

committee found claimant’s x-ray unreadable and refused to interpret the x-ray, claimant was

ultimately left without any evidence to prove his burden showing that he had pneumoconiosis.

Har-Lee’s only evidence of the purported agreement consists of a written statement it submitted

to the commission. In that statement, and on appeal, Har-Lee contends that, because claimant

did not object to or correct an assertion Har-Lee made in a letter to the commission stating that

claimant so agreed to be bound, claimant admits that he was bound. However, “[a]n appellate

court must dispose of the case upon the record and cannot base its decision upon appellant’s

petition or brief, or statements of counsel in open court. We may act only upon facts contained

in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (citing

Riddick v. Commonwealth, 135 Va. 724, 726, 115 S.E. 523, 524 (1923)). There is no evidence

in the record that shows that claimant agreed to be bound to the pulmonary committee’s

interpretation.

       Har-Lee also argues that the commission violated its due process rights by retroactively

applying reasoning from Clark v. El Paso Coal, VWC File No. 212-63-00 (December 31, 2003),

to this case. This argument is without merit. Even if the practice of denying a claimant’s claim

                                               -5-
in the face of competing x-ray interpretations and a refusal by the pulmonary committee to read

the x-ray is a long-standing practice, the concept that the commission may give greater weight to

interpretations based on original x-rays than to interpretations based on copies of x-rays did not

originate with the Clark decision. Clark cites the Riley decision, VWC File No. 196-94-41

(November 16, 2000), for that very proposition. See also Stoots v. Great Barrier Insulation Co.,

71 O.W.C. 178 (1992) (holding that a fact finder may consider the quality of the material

reviewed when weighing the credibility of the evidence). The commission in Riley noted that it

“does not consider copies of x-rays as worthy of interpretation for evidentiary purposes in

pneumoconiosis cases, and we generally give little weight to the interpretations of such

technically inferior radiographs.” Riley was decided in November 2000. Thus, the reasoning in

Clark is not novel. Har-Lee was on notice that the commission could assign less weight to

interpretations based on copies of x-rays than interpretations based on original x-rays.

       Finally, Har-Lee argues that by applying the novel reasoning in Clark to this case, the

commission has retroactively altered a long-standing practice, which appellant relied upon to its

detriment, and that the doctrine of imposition should apply to the case at bar. As we stated

above, the reasoning used in Clark was not novel, and certainly not a basis for applying the

doctrine of imposition.

                                         III. Conclusion

       The commission’s finding that claimant met his burden of proof is supported by credible

evidence and reasonable inferences drawn from the evidence and, therefore, will not be disturbed

upon review. Har-Lee’s due process rights were not violated, and, thus, the commission did not

err in denying the motion to vacate the review opinion and remand the case for further




                                               -6-
proceedings. The doctrine of imposition does not apply. Accordingly, we affirm the decision of

the commission.

                                                                                     Affirmed.




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