                             COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


RED BARON COAL COMPANY AND
AMERICAN ZURICH INSURANCE COMPANY
                                                            MEMORANDUM OPINION* BY
v.     Record No. 1882-02-3                                 JUDGE ROBERT J. HUMPHREYS
                                                                 OCTOBER 21, 2003
HAROLD L. HESS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

              Michael P. Del Bueno (Ralph L. Whitt, Jr.; Whitt & Associates, on
              briefs), for appellants.

              Gerald F. Sharp (Gerald F. Sharp, P.C., on brief), for appellee.


       Red Baron Coal Company and American Zurich Insurance Company (employer) appeal

an award by the Workers' Compensation Commission (commission) of compensation and

medical benefits for occupational hearing loss to Harold L. Hess (claimant).        On appeal,

employer contends the commission erred in finding (1) claimant's pre-existing hearing loss was a

compensable occupational disease, (2) claimant was injuriously exposed while working for

employer, and (3) claimant timely filed his claim for benefits. For the reasons stated below, we

reverse the decision and award of the commission.

                                      I. BACKGROUND

       The relevant evidence in this case is not in dispute. Claimant worked in the coal mining

business for approximately twenty-nine years. From 1978 to 1984, he worked for Three H Coal



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further,
because this opinion has no precedential value, we recite only those facts essential to our
holding.
Company and from 1984 to 1994, he was employed by Middle Energy Coal Company. Claimant

began working for employer in 1995. He testified that his work with employer was "similar to"

and "as noisy" as his work at the other two mines. He further testified that, although he was

consistently exposed to hazardous noise throughout his twenty-nine years of employment in coal

mining, he did not wear hearing protection. Claimant last worked for employer on September

19, 2000.

       On March 6, 2001, Dr. Jeffrey P. Robbins, claimant's physician, informed claimant that

his loss of hearing was work related. Claimant filed a "Notice of Claim and Communication of

Occupational Induced Hearing Loss" on March 19, 2001.

       On or about August 2, 2001, employer propounded written questions to Dr. Robbins.

Asked if "Harold Hess or anyone on his behalf ever advise[d him] that Harold Hess knew or

believed as early as sometime in the 1980's that his hearing loss was caused by his work in the

coal mines," Dr. Robbins responded, "Yes." At the hearing before the deputy commissioner,

claimant testified he did not recall making that statement to Dr. Robbins. He testified he first

noticed his hearing loss in the four or five years before he began treating with Dr. Robbins in

March of 2001. He stated that when he first noticed the loss, he did not believe it was caused by

his employment, but "figured it might have been old age, starting to get old."

       The pertinent medical evidence in the case came from Dr. Robbins, who examined

claimant, obtained a history from him, and conducted an audiometric test of his hearing. In his

March 6, 2001 report, Dr. Robbins stated that claimant suffered from a "medically significant

high and mid[-]frequency sensorineural hearing loss," of 53.7 decibels in his right ear and 47.5

decibels in his left ear. Noting that claimant had a "small conductive loss of 5-10 decibels" in his

right ear that could not "be attributed to noise exposure and [was] more compatible with his




                                              -2-
history of frequent ear infections[,]" Dr. Robbins concluded that claimant had a hearing loss of

47.5 decibels, in both ears, attributable to industrial noise exposure.

       Dr. Robbins summarized his findings in his report as follows:

               Mr. Harold Hess is a non-working 51 year-old man whose only
               reported or suspected noise exposure has occurred as a direct
               consequence of thirty-five years of unprotected, underground coal
               mining noise exposure experienced in the employ of multiple
               different mining companies. The last five years of his employment
               was with Red Baron Coal Company. Based on this long history of
               industrial noise exposure, this gentleman has a medically
               significant high and mid frequency sensorineural hearing loss
               consistent and compatible with the damaging effects of noise
               exposure and characterized by an adjusted four frequency pure
               tone average of 47.5 decibels in both ears. Given the above
               historical information and findings on physical and audiologic
               exam, it is my best judgment and considered otologic opinion that
               this man's very considerable high and mid frequency hearing
               impairment has occurred as a direct consequence of thirty-five
               years of unprotected, underground coal mining noise exposure.

Dr. Robbins counseled claimant "to avoid or attenuate any predictable future noise exposure."

       In its written questionnaire of August 2, 2001, employer also propounded the following

questions to Dr. Robbins:

               Without a previous hearing test, can you say to a reasonable degree
               of medical probability that the sensorineural hearing loss you
               observed on or about March 6, 2001 were [sic] measurably worse
               than the hearing loss present before Harold Hess began working at
               Red Baron Coal Company approximately 5 years ago?

               If so, how much worse in each ear by average decibels lost in the
               four speech frequencies compared to before Harold Hess began
               working at Red Baron Coal Company?

Dr. Robbins' written response to the first question was "No." In response to the second question,

he wrote:

               In my best    judgment, the amount of hearing loss incurred during
               this man's    employment with Red Baron Coal Co., was in all
               probability    minimal to negligible. (Please see highlights on
               enclosure.)    This man has a very significant noise induced hearing

                                               -3-
                 loss, but I believe the responsibility for this loss rests
                 overwhelmingly with his previous employers.

The attached enclosure was a portion of a 1999 article from the Journal of Occupational Hearing

Loss entitled "Differential Diagnosis in Occupational Hearing Loss Claims." Dr. Robbins had

underlined the following two passages in the article: "[Occupational hearing loss] is never

progressive after a maximum loss is incurred approximately 10 to 12 years after initial

exposure;" and, "It is generally accepted that after 10 or 15 years on the same job, a person's

hearing loss stabilizes and does not worsen due to ongoing exposure to noise." (Emphases

added).

          By opinion dated December 7, 2001, the deputy commissioner denied claimant's claim

for benefits, concluding claimant had failed to establish by clear and convincing evidence that he

suffered a compensable hearing loss as a consequence of his employment with employer, as

required by Code § 65.2-401. In reaching that conclusion, the deputy commissioner found that

Dr. Robbins had opined that "claimant's hearing loss did not result from his exposure to noise

while working for this employer."

          By opinion dated June 25, 2002, the commission reversed the deputy commissioner's

decision, holding that claimant proved an aggravation of his pre-existing occupational disease as

a result of his underground noise exposure while working for employer and was thus entitled to

benefits. In reaching that decision, the commission found that, in stating claimant's hearing loss

while with employer was "minimal to negligible," Dr. Robbins had opined claimant suffered

"some hearing loss, albeit nominal," as a consequence of his employment with employer. The

commission also found that claimant's March 19, 2001 claim was timely filed because the

diagnosis and communication of occupational hearing loss occurred on March 6, 2001, when

Dr. Robbins examined claimant.

          It is from the commission's opinion that employer now appeals.
                                              -4-
                                         II. ANALYSIS

                                     A. Standard of Review

       "On appeal, we view the evidence in the light most favorable to the party prevailing

below." Tomes v. James City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315

(2002). "If supported by credible evidence, the factual findings of the commission are binding

on appeal." Id. at 430, 573 S.E.2d at 315 (citing Code § 65.2-706(A)). This is so "even though

there is evidence in the record 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). "In determining whether credible

evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of the witnesses." Wagner Enters.,

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). However, "we review questions

of law de novo." Rusty's Welding Serv. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259

(1999) (en banc).

                                 B. Occupational Hearing Loss

       Relying on Ashland Oil Co. v. Bean, 225 Va. 1, 300 S.E.2d 739 (1983), as standing for

the proposition that an aggravation of an ordinary disease of life is not compensable, employer

argues that, because hearing loss has been categorized by the legislature as an ordinary disease of

life, the aggravation of claimant's pre-existing hearing loss while working for employer cannot

be compensable, as a matter of law. Thus, employer contends, the commission erred in finding it

so. We disagree.

       Code § 65.2-400(A) defines an "occupational disease" as "a disease arising out of and in

the course of employment, but not an ordinary disease of life to which the general public is

exposed outside of the employment." The statute specifically provides that hearing loss is not an

occupational disease, but a non-compensable ordinary disease of life. Code § 65.2-400(C).

                                             -5-
Hearing loss, however, may be treated as a compensable occupational disease if there is "clear

and convincing evidence . . . [t]hat the [hearing loss] exists and arose out of and in the course of

employment[,] . . . did not result from causes outside of the employment," and "is characteristic

of the employment and was caused by conditions peculiar to such employment."                  Code

§ 65.2-401.

       Although our Supreme Court held in Ashland Oil Co., 225 Va. at 3, 300 S.E.2d at 740,

that a disability resulting from the aggravation of a pre-existing ordinary disease of life is not

compensable, "the evidence in that case showed that the employee had a bunion before she

began working and that her job merely aggravated the pre-existing condition." Medlin v. County

of Henrico Police, 34 Va. App. 396, 411, 542 S.E.2d 33, 41 (2001). Thus, the Supreme Court

held "it was not an occupational disease, and only disabilities resulting from occupational

diseases are compensable." Ashland Oil Co., 225 Va. at 3, 300 S.E.2d at 740.

       Here, credible evidence shows that claimant began to notice his hearing loss four or five

years before he began treating with Dr. Robbins in March of 2001. It also shows that claimant's

coal mining employment began in 1978. Throughout the entire period of this employment,

claimant was exposed to loud underground industrial noise. Dr. Robbins found that claimant's

47.5-decibel hearing loss for both ears "occurred as a direct consequence of thirty-five years of

unprotected, underground coal mining noise exposure."

       Thus, the evidence in this case conclusively establishes that claimant's 47.5-decibel

hearing loss arose out of and in the course of his coal mining employment and did not arise from

causes outside of the employment. Furthermore, loud industrial noise was a condition peculiar to

claimant's underground coal mining work and his noise-induced hearing loss was a consequence

characteristic of such employment. Therefore, we find no error in the commission's conclusion




                                              -6-
that the aggravation of claimant's hearing loss while working for employer was a compensable

occupational disease.

                                     C. Injurious Exposure

       Employer next contends claimant failed to prove by clear and convincing evidence that

he suffered "injurious exposure" from industrial noise while working for employer. Employer

argues that claimant's hearing loss did not measurably worsen after he began employment with

employer. At most, employer argues, the amount of hearing loss incurred by claimant while

working for employer was "minimal to negligible." We agree with employer that the evidence

presented was insufficient to support the commission's finding that claimant's pre-existing

hearing loss was aggravated during his employment with employer and, thus, that his last

"injurious" exposure occurred while working there.1

       Liability under the Workers' Compensation Act attaches to the employer claimant was

last employed with when last injuriously exposed to the hazards of his occupational disease,

"prior to [the] 'first communication of the diagnosis.'" Cooper v. Mary E. Coal Corp., 215 Va.

806, 809, 214 S.E.2d 162, 165 (1975). An exposure is deemed "injurious" if it is an exposure "to

the causative hazard of such disease which is reasonably calculated to bring on the disease in

question." Code § 65.2-404(B). In Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 500, 260 S.E.2d

193, 195 (1979), our Supreme Court held that a claimant may prove injurious exposure "by

establishing actual causation or aggravation of the disease or by showing that the exposure was



       1
          We note, however, that employer's contention that claimant was required to prove
injurious exposure by the clear and convincing evidence standard set forth in Code § 65.2-401 is
in error. As stated above, claimant was required to prove by clear and convincing evidence the
elements of Code § 65.2-401 in order to render his hearing loss, an otherwise ordinary disease of
life, compensable as an "occupational disease." The burden then changed, requiring only that
"claimant . . . establish by a preponderance of the evidence in whose employment he was last
injuriously exposed." Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 53, 122 S.E.2d 666, 669
(1961).
                                             -7-
of such duration and intensity that it generally causes the disease in question, even though actual

causation or aggravation cannot be established in the claimant's case."

        Citing Caudle-Hyatt, Inc., the commission held that claimant established an "aggravation

of the disease" because he proved "he suffered some hearing loss as a consequence of his

employment with . . . employer." Thus, the commission concluded, claimant was entitled to

compensation benefits "because he proved that his hearing deteriorated as a result of his noise

exposure" while working for employer. We find no credible evidence in the record to support

this finding.

        The record here demonstrates that Dr. Robbins concluded that claimant's 47.5-decibel

hearing loss "occurred as a direct consequence of thirty-five years of unprotected, underground

coal mining noise exposure experienced in the employ of multiple different mining companies."

Dr. Robbins also noted that, of those thirty-five years of employment in coal mines, claimant

spent the last five working for employer. Further, in response to the written questionnaire

propounded by employer, Dr. Robbins stated that "the amount of hearing loss incurred during

[claimant's] employment with [employer] was in all probability minimal to negligible."

However, Dr. Robbins explicitly qualified this statement by directing the reader to the attached

journal article. Dr. Robbins highlighted two significant statements in that article. One statement

expressed that "[occupational hearing loss] is never progressive after a maximum loss is incurred

approximately 10 to 12 years after initial exposure." (Emphasis added). The other stated "[i]t is

generally accepted that after 10 or 15 years on the same job, a person's hearing loss stabilizes and

does not worsen due to ongoing exposure to noise." (Emphasis added). Moreover, Dr. Robbins

answered "No," to the question asking whether he could opine, "to a reasonable degree of

medical probability" that the hearing loss incurred by claimant while working with employer was




                                              -8-
"measurably worse" than what claimant had sustained in the years prior to his work with

employer.

       Other than claimant's own testimony that his work environment with employer was "as

noisy" as the work environments he had been exposed to in the past, as well as Dr. Robbins'

advice to claimant to avoid future noise exposure, this is the sum total of the evidence supporting

claimant's contention that his hearing loss was aggravated by his employment with employer.2

However, none of this evidence proved, either directly or inferentially, that claimant sustained

any additional hearing loss while working for employer. Indeed, although Dr. Robbins opined

that claimant sustained what amounted to a "minimal or negligible" loss during that time, he

specifically qualified this statement with an additional statement that hearing loss "does not

worsen" after 10-15 years of initial exposure. He further stated he could not opine that claimant

suffered any "measurable" hearing loss during that time. Thus, Dr. Robbins' opinion, when

considered as a whole and in the context in which he rendered it, conclusively states that

claimant suffered no measurable hearing loss as a result of working for employer.3           Such

evidence cannot support an award of benefits based upon a finding of aggravation, and thereby

"injurious exposure," because it proves no actual aggravation.



       2
          We find no evidentiary support in Dr. Robbins' advice to claimant to "avoid" future
noise exposure. Indeed, the article submitted by Dr. Robbins definitively stated that
occupational hearing loss "does not progress once the subject is removed from the noisy
environment." Therefore it is mere prudence for a physician to counsel his patient to take such a
precautionary measure. Such counsel, however, does not prove claimant continued to suffer
injurious exposure to his hearing during his work with employer. In fact, Dr. Robbins' explicit
statements tend to prove the contrary.
       3
          Moreover, Dr. Robbins' testimony failed to establish any measurable aggravation that
might arguably rise to a level of compensability pursuant to the commission's own guidelines.
See Virginia Worker's Compensation Commission Rules and Regulations, Hearing Loss Table
(setting guidelines for the determination of compensable levels of sustained hearing loss and
relating actual "average decibel loss" to "percent of compensable hearing loss").

                                             -9-
       Accordingly, finding no credible evidence to support the commission's factual

determinations that claimant's hearing loss was aggravated during his employ with employer and,

thus, that his last injurious exposure to the "causative hazard of such disease" occurred during

that time, we reverse the commission's decision and award, and dismiss.4

                                                                          Reversed and dismissed.




       4
           Because we find that the evidence failed to establish claimant's last injurious exposure
occurred during his work with employer, we need not address employer's contention that
claimant's claim for benefits was time barred. See Code § 65.2-404(A) ("When an employee has
an occupational disease that is covered by this title, the employer in whose employment he was
last injuriously exposed to the hazards of the disease and the employer's insurance carrier, if any,
at the time of the exposure, shall alone be liable therefor, without right to contribution from any
prior employer or insurance carrier.").
                                              - 10 -
Clements, J., concurring, in part, and dissenting, in part.

       I concur with the majority's holding that the commission did not err in concluding that the

aggravation of claimant's hearing loss was a compensable occupational disease. However, I

disagree with the majority's conclusion that the record is devoid of credible evidence from which

the commission could have found that claimant "suffered some hearing loss as a consequence of

his employment with . . . employer." Accordingly, I respectfully dissent from the majority's

holding that claimant failed to prove he received his last injurious exposure while working for

employer.

       As noted by the majority, to receive workers' compensation benefits from employer,

claimant had to establish by a preponderance of the evidence that "he was last injuriously

exposed" while working for employer. Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 53, 122

S.E.2d 666, 669 (1961); see Code § 65.2-404(A) ("When an employee has an occupational

disease that is covered by this title, the employer in whose employment he was last injuriously

exposed to the hazards of the disease . . . shall alone be liable therefor, without right to

contribution from any prior employer . . . ."). By statutory definition, an "injurious exposure" to

an occupational disease is "an exposure to the causative hazard of such disease which is

reasonably calculated to bring on the disease in question." Code § 65.2-404(B). Injurious

exposure may be proved by either "establishing actual causation or aggravation of the disease or

. . . showing that the exposure was of such duration and intensity that it generally causes the

disease in question, even though actual causation or aggravation cannot be established in the

claimant's case." Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 500, 260 S.E.2d 193, 195 (1979).

       In this case, the commission determined that claimant was injuriously exposed while

working for employer. In reaching that decision, the commission found as follows:

               The claimant did not present any evidence in the form of tests that
               compared his hearing ability before working at Red Baron with his
                                               - 11 -
               hearing ability after working there. However, Dr. Robbins wrote
               that the claimant's hearing loss at Red Baron was "minimal to
               negligible," thereby opining that the claimant had some hearing
               loss, albeit nominal, at Red Baron. Thus, the claimant proved an
               "aggravation of the disease" because he suffered some hearing loss
               as a consequence of his employment with this employer.

       The commission's determination of whether a claimant was injuriously exposed while

working for an employer is a finding of fact. See Piedmont Mfg. Co. v. East, 17 Va. App. 499,

510, 438 S.E.2d 769, 776 (1993). Under settled principles of appellate review,

               [t]he factual findings of the commission are conclusive and
               binding on appeal if supported by credible evidence in the record.
               "The fact that there is contrary evidence in the record is of no
               consequence if there is credible evidence to support the
               commission's findings." Wagner Enters., Inc. v. Brooks, 12
               Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "This rule applies
               when an expert's opinion contains internal conflicts." Greif
               Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471
               S.E.2d 803, 806 (1996).          "Likewise, the [c]ommission's
               conclusions upon conflicting inferences, legitimately drawn from
               proven facts, are equally binding on appeal." Watkins v. Halco
               Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). "In
               determining whether credible evidence exists, the appellate court
               does not retry the facts, reweigh the preponderance of the
               evidence, or make its own determination of the credibility of the
               witnesses." Wagner Enters., Inc., 12 Va. App. at 894, 407 S.E.2d
               at 35.

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552 S.E.2d 372, 375 (2001) (citation

omitted). Applying these principles in Etter, we concluded that, "[a]lthough some of [the

treating physician's] responses and statements . . . may arguably conflict with each other, the

commission, as fact finder, was entitled to determine the weight, meaning, and credibility to give

his respective responses and statements and to reconcile any possible conflicts therein." Id. at

445, 552 S.E.2d at 375.

       Similarly, in this case, when viewed in the light most favorable to claimant, who

prevailed before the commission, see Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508

S.E.2d 335, 340 (1998), Dr. Robbins' responses and statements were arguably in conflict. In his
                                             - 12 -
March 6, 2001 report, Dr. Robbins opined that the 47.5-decibel hearing loss suffered by claimant

specifically "occurred as a direct consequence of thirty-five years of unprotected, underground

coal mining noise exposure," the last five of which were spent working for employer.

Dr. Robbins also indicated in that report that he counseled claimant "to avoid or attenuate any

predictable future noise exposure." Then, in response to employer's August 2, 2001 written

questionnaire, Dr. Robbins acknowledged that, without a pre-employment hearing test, he could

not quantify a precise measurement for the worsening of claimant's hearing loss as a result of his

employment with employer. He surmised, however, that "the amount of hearing loss incurred

during [claimant's] employment with [employer] was in all probability minimal to negligible,"

adding that the responsibility for claimant's "very significant noise induced hearing loss . . .

rest[ed] overwhelmingly with his previous employers." Dr. Robbins' questionnaire responses

were accompanied by an article on occupational hearing loss in which the doctor had underlined

two passages indicating that occupational hearing loss "is never progressive after a maximum

loss is incurred approximately 10 to 12 years after initial exposure" and that it "is generally

accepted that after 10 or 15 years on the same job, a person's hearing loss stabilizes and does not

worsen due to ongoing exposure to noise."

       In light of these arguably conflicting statements by Dr. Robbins, the commission was

entitled to resolve the internal conflict in the expert evidence in favor of claimant and conclude,

as it did, that Dr. Robbins' medical opinion was that, while claimant's industrially related hearing

loss was primarily caused by his exposure to noise during his prior coal mining jobs, claimant

suffered some hearing loss due to his employment with employer.

       Credible evidence supports this finding. For instance, in stating that claimant's hearing

loss was a "direct consequence" of claimant's exposure to industrial noise for thirty-five years,

Dr. Robbins drew no distinction between the first thirty years and the last five years of claimant's

                                              - 13 -
employment in underground mines. Rather, he indicated solely that claimant's hearing loss was

due to the totality of his exposure to industrial noise over the entire thirty-five years of his

employment in coal mining, including the last five years with employer.          Additionally, in

directing claimant to avoid exposure to industrial noise in the future, Dr. Robbins clearly

believed that claimant's hearing loss had not fully stabilized at that point and could be made

worse by further exposure. Otherwise, no such directive would have been necessary.

       Moreover, while it is true that Dr. Robbins included in his response to the questionnaire

an article stating it was "generally accepted" that occupational hearing loss did not worsen after

"maximum" hearing loss was "incurred approximately 10 to 12 years after initial exposure,"

Dr. Robbins also expressed the opinion in his response that claimant incurred a "minimal to

negligible" amount of hearing loss while working for employer. In my view, the commission

could reasonably interpret that statement as reflecting the doctor's belief that claimant suffered

some small, but undeniably positive, amount of hearing loss while working for employer. Cf.

Etter, 36 Va. App. at 445-46, 552 S.E.2d at 375-76 (holding that the treating physician's

testimony that the claimant's industrial accident contributed to the claimant's disability "to the

minutest degree"—meaning "to some small degree"—was sufficient to prove the accident caused

the claimant's disability). This view is buttressed by Dr. Robbins' additional statement that the

responsibility for claimant's hearing loss rested "overwhelmingly" with claimant's previous

employers.    Because "overwhelmingly" falls short of "entirely," the commission could

reasonably infer from the doctor's statement that he believed some of the responsibility for

claimant's hearing rested with employer. The fact that Dr. Robbins believed the majority of

claimant's hearing loss was incurred while claimant was working for earlier employers does not




                                             - 14 -
negate the fact that claimant's condition was aggravated to some degree while working for

employer.5

       Thus, I believe that Dr. Robbins' medical records and opinions, coupled with claimant's

uncontradicted testimony that his work with employer was similar to and as noisy as his previous

coal mining jobs, constitute credible evidence to support the commission's factual determination

that claimant was injuriously exposed to industrial noise while working for employer. Hence, I

would conclude that we are bound by that finding on appeal.

       Employer also asserts, on appeal, that claimant knew in the 1980s that his hearing loss

was caused by working in coal mines. Therefore, employer maintains, claimant's claim of

occupational hearing loss, filed March 19, 2001, was not filed within two years after receiving

communication of the diagnosis of hearing loss in the 1980s, as required by Code

§ 65.2-406(A)(5), and is time barred. I disagree.

                       As relevant to the facts of this case, Code § 65.2-406(A)(5)
               provides that the right to compensation for occupational diseases
               shall be forever barred unless a claim is filed within two years after
               a diagnosis of the disease is first communicated to the employee.
               Hence, "once an employee receives a communication of an
               occupational disease, it is incumbent upon him to file a claim"
               within two years of that communication.

Tomes v. James City (County of) Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315 (2002)

(quoting Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343 S.E.2d 455, 458-59

(1986) (footnote omitted)).

       Here, employer's statute of limitations defense rests on Dr. Robbins' response to its

questionnaire that he was told that claimant knew or believed as early as in the 1980s that his


       5
          The majority appears to rule in a footnote that, to establish injurious exposure, a
claimant must prove a certain level of "measurable aggravation" commensurate with the
minimum level of compensability set forth in the commission's Hearing Loss Table. I find no
basis in authority or logic for such a ruling in the context of determining in whose employment a
claimant was last injuriously exposed.
                                                - 15 -
hearing loss was caused by his work in the coal mines.          In rejecting this argument, the

commission accepted claimant's testimony that he did not recall making such a statement to

Dr. Robbins and that he thought his hearing loss was caused by "old age," not by his work in the

mines.

         Because credible evidence supports the commission's factual finding that the first

communication to claimant of the diagnosis of occupational hearing loss occurred on March 6,

2001, when Dr. Robbins examined him, I would hold the commission did not err in ruling that

claimant's claim of March 19, 2001, was timely filed.

         For these reasons, I would affirm the commission's decision and award.




                                             - 16 -
