HEART-LUNG PRESUMPTION
Without a statutory exception, in heart attack cases, the claimant must show an injury
by accident and an identifiable incident at a reasonably definite time. The claimant must
prove that particular work activity caused or contributed to cause the heart
attack. If
the heart attack was a natural coincidence of preexisting heart disease or physical and
emotional stress over a period of weeks, the heart attack is not compensable. D.W.
Mallory & Co. v. Phillips, 219 Va. 845, 252 S.E.2d 319 (1979); Woody v.
Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518 (1985).
Statutory Provision. §65.2-402.
Presumption as to death or disability from respiratory disease, hypertension or heart
disease.
A. Respiratory diseases that cause (i) the death of volunteer or salaried firefighters
or Department of Emergency Services hazardous materials officers, or (ii) any health
condition or impairment of such firefighters or Department of Emergency Services hazardous
materials officers resulting in total or partial disability shall be presumed to be
occupational diseases, suffered in the line of duty, that are covered by this title unless
such presumption is overcome by a preponderance of competent evidence to the contrary. For
purposes of this section, the term "firefighter" shall include persons who are
employed by or contract with private employers primarily to perform firefighting services.
B. Hypertension or heart disease causing the death of, or any health condition or
impairment resulting in total or partial disability of (i) salaried or volunteer
firefighters, (ii) members of the State Police Officers' Retirement System, (iii) members
of county, city or town police departments, (iv) sheriffs and deputy sheriffs, (v)
Department of Emergency Services hazardous materials officers, (vi) city sergeants or
deputy city sergeants of the City of Richmond, and (vii) game wardens who are full-time
sworn members of the enforcement division of the Department of Game and Inland Fisheries
shall be presumed to be occupational diseases, suffered in the line of duty, that are
covered by this title unless such presumption is overcome by a preponderance of competent
evidence to the contrary.
C. Leukemia or pancreatic, prostate, rectal, or throat cancer that is caused by a
documented contact with a toxic substance that a volunteer or salaried firefighter or
Department of Emergency Services hazardous materials officer having completed twelve years
of continuous service has encountered in the line of duty and that causes (i) the death of
such person or (ii) any health condition or impairment of such person resulting in total
or partial disability shall be presumed to be an occupational disease, suffered in the
line of duty, that is covered by this title, unless such presumption is overcome by a
preponderance of competent evidence to the contrary. For the purposes of this section, a
"toxic substance" is one which is a known or suspected carcinogen, as defined by
the International Agency for Research on Cancer, and which causes, or is suspected to
cause, leukemia or pancreatic, prostate, rectal or throat cancer.
D. The presumptions described in subsections A, B, and C of this section shall only
apply if persons entitled to invoke them have, if requested by the private employer,
appointing authority or governing body employing them, undergone preemployment physical
examinations that (i) were conducted prior to the making of any claims under this title
that rely on such presumptions, (ii) were performed by physicians whose qualifications are
as prescribed by the private employer, appointing authority or governing body employing
such persons, (iii) included such appropriate laboratory and other diagnostic studies as
the private employer, appointing authorities or governing bodies may have prescribed, and
(iv) found such persons free of respiratory diseases, hypertension, cancer or heart
disease at the time of such examinations.
E. Persons making claims under this title who rely on such presumptions shall, upon the
request of private employers, appointing authorities or governing bodies employing such
persons, submit to physical examinations (i) conducted by physicians selected by such
employers, authorities, bodies or their representatives and (ii) consisting of such tests
and studies as may reasonably be required by such physicians. However, a qualified
physician, selected and compensated by the claimant, may, at the election of such
claimant, be present at such examination.
F. Whenever a claim for death benefits is made under this title and the presumptions of
this section are invoked, any person entitled to make such claim shall, upon the request
of the appropriate private employer, appointing authority or governing body that had
employed the deceased, submit the body of the deceased to a postmortem examination as may
be directed by the Commission. A qualified physician, selected and compensated by the
person entitled to make the claim, may, at the election of such claimant, be present at
such postmortem examination.
G. Volunteer lifesaving and rescue squad members, volunteer law-enforcement chaplains,
auxiliary and reserve deputy sheriffs, and auxiliary and reserve police are not included
within the coverage of this section.
Nature of the Heart-Lung Presumption--Burden of Proof is Shifted to Employer.
The commission misapplied the legal
precedent implementing the statutory presumption of Code Sec. 65.2-402 in
finding claimant's respiratory disease was caused by his work as a
firefighter and was thus a compensable occupational disease. Claimant
served as a volunteer firefighter from age 15 until he became a full-time
paid firefighter in 1972 and continuing until his death. He smoked
an average of three-quarters of a
pack of cigarettes a day from age 18 until approximately 1994 when he was
diagnosed with squamous cell carcinoma (lung cancer). Claimant died
on September 4, 1996. All the physician experts agreed claimant's
cigarette smoking was a cause of his lung cancer. The employer's
experts, for various reasons, opined claimant's work as a firefighter did
not cause his lung cancer. The claimants' experts, other than Dr.
Susan M. Daum, only opined that they could not exclude claimant's
work-related exposure to toxins as a cause of the disease. Dr. Daum
explicitly opined claimant's occupational exposure was a cause of his lung
cancer. No evidence in the record established the quantity of
claimant's exposure to possible disease-causing substances or fixed the
toxicity of any exposure. In summary, the evidence was in conflict as to
whether claimant's possible exposure to hazardous substances as a
firefighter was a cause of his lung cancer.
Code Sec. 65.2-402 applies to designated public safety
employees, including firefighters like claimant. The statute
establishes that respiratory diseases "shall be presumed to be
occupational diseases suffered in the line of duty . . . unless such
presumption is overcome by a preponderance of competent evidence to the
contrary." Code Sec. 65.2-402(A). [T]he purpose of the statutory
presumption is to establish by law, in the absence of evidence, a causal
connection between certain occupations and death or disability resulting
from specified diseases. . . .To overcome the statutory presumption the
employer must show, by a preponderance of the evidence, both that 1) the
claimant's disease was not caused by his employment, and 2) there was a
non-work-related cause of the disease. Thus, if the employer
does not prove by a preponderance of the evidence both parts of this
two-part test, the employer has failed to overcome the statutory
presumption. Bass v. City of Richmond, 258 Va. 103, 112-14, 515
S.E.2d 557, 562-63(1999) (citations omitted).
In the case at bar, the commission properly found, and the
claimants do not contest, that the employer met its burden as to the
second prong of the Bass test: there was a non-work-related cause of
Woody's lung cancer which was his cigarette smoking.
As to the first prong of the Bass test, the
commission held that the presumption precludes rebuttal by the employer
where there is any evidence that a statutorily qualified employee had any
level of exposure "to properties in the course and scope of their
employment that cause respiratory disease." The commission's decision
is in error as the commission failed to follow the plain language of Code
Sec. 65.2-402(A), which establishes a rebuttable presumption, not a
conclusive presumption. Under the commission's rationale, any person
who worked as a statutorily designated employee and who contracted a
disease covered by the statute would conclusively be entitled to an award
upon production of any evidence of any exposure to any potentially
causative disease factor in the work environment. It would be
irrelevant whether that exposure had, in fact, any causative effect on the
claimant. In effect, the commission held that exposure, not proof
of causation, was all a claimant need show to render the rebuttable
presumption a nullity by conversion to a conclusive presumption.
Had the General Assembly wished to write a conclusive
presumption into Code Sec. 65.2-402, it could have done so. It did
not. Instead, the legislature has directed the commission to
determine cases according to the weighing of the evidence, and the
commission is without authority to change that statutory provision.
Bass, 258 Va. at 114, 515 S.E.2d at 562-63.
Henrico
Division of Fire v. Estate of William Woody, Record No. 1254-02-4
(December 3, 2002).
WP Version.
In Claude A.
Bass, Jr.
v. City of Richmond Police Department, Record No. 980612; John B.
Patton, Jr.
v. Loudoun County Board of Supervisors, Record No. 980861; City
of Hopewell, et al.
v. Michael W. Tirpak, Record No. 982126 (June 11, 1999), WP
Version, Bass
v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557
(1999), the Supreme Court clarified what is needed to overcome the
statutory presumption. Under the statutory language, the employer may overcome the
presumption by producing "a preponderance of competent evidence
to the contrary." Code Sec. 65.2-402(B).
To overcome the
presumption the employer must show, by a preponderance of the
evidence, both that 1) the claimant's disease was not caused by
his employment, and 2) there was a non-work-related cause of the disease. See
Fairfax County Fire
& Rescue Servs. v. Newman, 222 Va. 535, 539, 281 S.E.2d 897, 899-900 (1981);
Page v. City of Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777
(1978). Thus, if the
employer does not prove by a preponderance of the evidence both
parts of this two-part test, the employer has failed to overcome
the statutory presumption. Id. In Code Sec. 65.2-402(B), the legislature included
"[h]ypertension or heart disease" among those diseases that
"shall be presumed to be occupational diseases . . . unless such
presumption is overcome by a preponderance of competent evidence
to the contrary." In Page v. City of Richmond, 218 Va. 844,
847, 241 S.E.2d 775, 777 (1978), the Supreme Court explained that the purpose
of the statutory presumption is to establish by law, in the
absence of evidence, a causal connection between certain
occupations and death or disability resulting from specified
diseases. The Court held that a claimant firefighter was entitled to
compensation benefits because his employer had failed to
overcome the statutory presumption by showing both that 1) the
claimant's disease was not caused by his employment, and 2)
there was a non-work-related cause of the disease. Id. at 847-
48, 241 S.E.2d at 777. The Supreme Court again applied this two-part test in Fairfax County Fire
& Rescue Servs. v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981).
There, a firefighter who developed sarcoidosis, a disease
affecting the lungs, relied on the statutory presumption of
occupational disease provided by former Code Sec. 65.1-47.1. The
employer produced medical testimony that the firefighter's
employment did not cause his disease, but the employer failed to
present any medical evidence of a non-work-related cause of the
disabling disease. Since the employer failed to prove one of
the two elements required to overcome the statutory presumption, the Court upheld the Commission's award of benefits.
Id. at 539, 281
S.E.2d at 900; see also Berry v. County of Henrico, 219 Va. 259,
265, 247 S.E.2d 389, 392 (1978).
In Doss v. Fairfax County Fire & Rescue Dep't., 229 Va.
440, 331 S.E.2d 795 (1985), the Supreme Court applied the two-part test to a
firefighter's claim for benefits for a respiratory disease. The
claimant relied on the statutory presumption and presented no
evidence to counter the employer's medical evidence that 1) the
claimant's job did not cause his respiratory disability, and 2)
the claimant's condition was "more than likely a hereditary
phenomenon." Id. at 441-42, 331 S.E.2d at 795-96. The Court held that
the Commission did not err in ruling that the employer presented
sufficient evidence to overcome the statutory presumption, and
that the evidence concerning a "hereditary" cause was sufficient
to meet the Page requirement that the employer produce evidence
of a non-work-related cause of the disease. Id. at 442-43, 331
S.E.2d at 796-97.
In Augusta
County Sheriff's Dep't v. Overbey, 254 Va. 522, 492
S.E.2d 631 (1997), the employer acknowledged the applicability of
the two-part test by conceding that, to overcome the statutory
presumption of Code Sec. 65.2-402(B), the employer was required "to
establish a non-work-related cause for [the claimant's] heart
condition and that job stress was not the cause." 254 Va. at
526, 492 S.E.2d at 633. The claimant contended, however, that
the presumption also imposed on the employer the burden of
"producing a preponderance of evidence excluding the possibility
that his heart disease was work related." Id.
In rejecting the claimant's contention, the Supreme Court quoted from Doss, stating that, to overcome the statutory presumption, the
employer merely "must adduce competent medical evidence of a
non-work-related cause of the disabling disease." Overbey, 254
Va. at 527, 492 S.E.2d at 634 (quoting Doss, 229 Va. at 442, 331
S.E.2d at 796). This quotation was made in the context of the Court's
holding that, to overcome the statutory presumption of Code Sec. 65.2-402(B), an employer is not required to exclude the
possibility that job stress may have been a contributing factor
in the development of a claimant's heart disease. Id. at 527,
492 S.E.2d at 634.
The commission improperly concluded that his
employer presented sufficient evidence to overcome the occupational
disease presumption established in Code Sec. 65.2-402(B)
of the Workers' Compensation Act.
Dr. Stuart F. Seides, a cardiologist who, at the
request of claimant's employer, examined claimant and reviewed some of his
medical records, noted that claimant was found shortly after the heart
attack to have "multi-vessel coronary atherosclerosis with critical
obstruction of the 'culprit' right coronary artery." Dr. Seides
further noted that claimant's "symptom onset did occur in the setting
of his patrol duties," but added that it is highly likely that the
myocardial infarction would have occurred in or around the same time frame
regardless of his activities. Although "stress" is often
considered to be an important trigger for myocardial infarction, most
infarcts occur in the absence of an identifiable environmental event and
in those cases where there is an apparent association, it may be simple
coincidence. What is most important is the presence of the underlying
substraight of atherosclerosis which is a multifactorial process
developing over a period of many years in the setting of the risk
factors outlined in this case. The relationship of occupation to the
development of atherosclerosis is virtually nil.
In this case, the commission relied wholly upon Dr.
Seides' medical opinion that the "relationship of occupation to the
development of atherosclerosis is virtually nil" to conclude that
claimant's heart disease was not caused by his employment. That opinion,
however, merely rebuts generally the underlying premise of Code Sec. 65.2-402(B),
which establishes the presumptive causal link between occupational stress
and heart disease. Accordingly, Dr. Seides' opinion that the
"relationship of occupation to the development of atherosclerosis is
virtually nil" is not probative evidence for purposes of overcoming
the presumption of Code Sec. 65.2-402,
and the commission erred in relying on it. Disregarding that evidence, it
cannot be concluded that the employer has rebutted the presumption. John
B. Patton, Jr. v. Loudoun Co. Bd. of Supervisors, Record No.
1055-00-4 (August 28, 2001). WP
Version.
To rebut the statutory presumption, "the employer must show, by a
preponderance of the evidence, both that 1) the claimant's
disease was not caused by his employment, and 2) there was a
non-work-related cause of the disease." Bass
v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557 (1999) (citing Fairfax County Fire & Rescue Servs. v. Newman, 222
Va. 535, 539, 281 S.E.2d 897, 899-900 (1981); Page v. City of Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978)).
Evidence that job-related stress is one of several factors
contributing to a claimant's heart disease, if found credible by
the commission, is sufficient to prevent an employer from
proving the first prong required to rebut the presumption. Id. (implicitly holding such evidence
sufficient by remanding case with those facts to commission for
application of the proper legal standard); Augusta County Sheriff's Dep't.
v. Overbey, 254 Va. 522, 527, 492 S.E.2d 631,
634 (1997) (noting that a claimant is entitled to benefits under
Code Sec. 65.2-402(B) when the evidence shows that at least one
cause of the claimant's heart disease was "related to the
employment"). Claimant's treating physician opined that job
stress contributed to claimant's coronary artery disease. Accordingly, the commission did not err
in holding that employer failed to rebut the presumption of Code Sec. 65.2-402 that claimant's heart disease was an occupational
disease. Tazewell County Sheriff's
Office v. Owens, Record No. 0005-99-3 (June 29,1999). WP
Version.
After working as a firefighter for about eight years,
claimant was diagnosed with asymptomatic complete heart block. The
doctors who examined him believed the cause of his condition was
unknown or unclear. The Supreme Court recently held that "[t]o
overcome the presumption [contained in Code Sec. 65.2-402(B)],
the employer must show, by a preponderance of the evidence, both that (1)
the [employee's] disease was not caused by his [or her] employment, and
(2) there was a non-work-related cause of the disease." Bass
v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557
(1999). WP
Version. Thus, it follows that "if the employer does not prove by
a preponderance of the evidence both parts of this two-part test, the
employer has failed to overcome the statutory presumption." Id. In this case there was no evidence of a
non-work-related cause. The commission did not err in ruling that the
record failed to establish by a preponderance of credible evidence a
non-work-related cause of claimant's disease. City
of Richmond Fire Department v. George J. Dean, Record No.
1731-98-2 (July 27, 1999) WP
Version.
The commission did not err in finding that cardiac
arrhythmia constituted a compensable occupational disease.
Determining whether a condition constitutes an occupational disease
is a mixed question of law and fact and is subject to judicial review.
See A
New Leaf, Inc. v. Webb, 257 Va. 190, 196, 511 S.E.2d 102, 104
(1999) (citations omitted). WP
Version. In its decision, the
commission was required to resolve conflicting medical opinions. The
medical opinions differed on whether claimant's cardiac arrhythmia
constituted an occupational disease.
The record supports its finding that claimant's cardiac arrhythmia
was a compensable disease. Code Sec. 65.2-402(B) provides: Hypertension or
heart disease causing . . . any health condition or impairment resulting
in total or partial disability of . . . deputy sheriffs . . . shall be
presumed to be occupational diseases, suffered in the line of duty, that
are covered by this title unless such presumption is overcome by a
preponderance of competent evidence to the contrary.
In Bass
v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557
( 1999). WP
Version, the Supreme Court held: "[t]o overcome the presumption,
the employer must show, by a preponderance of the evidence, both that (1)
the disease was not caused by his employment, and (2) there was a
non-work-related cause of the disease."
Id. at 114, 515 S.E.2d at 562-63 (citation omitted). In this
case, the commission considered both parts of that two-part test.
It noted that prior to Augusta County Sheriff's Dep't.
v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), "the
employer had to pass a two-pronged test to rebut the presumption.
First, the evidence had to establish a probable non-work-related
cause of the disease. . . . Secondly, the evidence had to exclude
work-related factors as a possible contributing cause of the
disease." The commission found that employer satisfied one prong
of the test because it presented evidence that there were non-work-related
causes of the disease, primarily claimant's consumption of nicotine,
alcohol, and caffeine. However,
to satisfy the second prong of the test, employer had to exclude
claimant's work as a factor in his condition. This
it failed to do. To the
contrary, the commission found "the evidence is sufficient to prove
[claimant's] work was a proximate cause of his cardiac arrhythmia.” The
record supports the commission's finding. Claimant's use of nicotine,
caffeine and alcohol contributed to the origination and continuation of
his cardiac arrhythmia. When medical opinions conflict, the general rule
is that when an attending physician is positive in his diagnosis of a
disease, great weight will be given by the courts to this opinion. See McPeek
v. P.W. & W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445
(1969). Based on the entire record, the commission properly concluded that
claimant's cardiac arrhythmia was caused, at least in part, by the
significant stress he experienced in the line of duty.
Employer failed to rebut the statutory presumption by excluding
work stress as a contributing factor. Henrico
County Sheriff's Office v. Paul T. McQuay, Record No.
2241-98-2 (August 17, 1999). WP
Version.
The commission, in its
role as fact finder, found that employer's evidence failed to establish by
a preponderance of the evidence a non-work-related cause of claimant's
heart disease and that employer consequently failed to rebut the statutory
presumption. We cannot conclude as a matter of law that the commission
erred in its ruling. To rebut the presumption of Code Sec. 65.2-402(B),
employer was required to produce affirmative evidence of a
non-work-related cause of claimant's orthostatic hypotension. See Bass
v. City of Richmond Police Dep't, 258 Va. 103, 115, 515 S.E.2d 557,
563 ( 1999). WP
Version. Because employer's evidence did
not prove by a preponderance of the evidence that claimant's family
history or history of smoking caused him to develop orthostatic
hypotension, the commission did not err by finding that employer failed to
rebut the statutory presumption that claimant's condition is a compensable
occupational disease. See City of Norfolk v. Lillard, 15 Va. App.
424, 426, 424 S.E.2d 243, 245 (1992) ("In the absence of competent
evidence to the contrary, the statutory presumption controls and the
claimant prevails.").The Workers' Compensation Act provides for
coverage of occupational diseases arising out of and in the course of
employment. See Code Sec. 65.2-101;
A
New Leaf, Inc. v. Webb, 26 Va.
App. 460, 465, 495 S.E.2d 510, 513 (1998), aff'd, 257 Va. 190, 511 S.E.2d
102 (1999). WP
Version. Under Code Sec. 65.2-402(B),
a heart disease incurred by a deputy sheriff is "presumed to be [an]
occupational disease[], suffered in the line of duty, that [is] covered by
[the Act] unless such presumption is overcome by a preponderance of
competent evidence to the contrary." The Supreme Court of Virginia
recently re-affirmed the principle that an employer may rebut the
presumption of Code Sec. 65.2-402(B)
by proving by a preponderance of the evidence that: 1) the claimant's
disease was not caused by his or her employment, and 2) there was a
non-work-related cause of the disease. See Bass
v. City of Richmond Police Dep't.,
258 Va. 103, 115, 515 S.E.2d 557, 563 (1999). WP
Version. When the commission determines
that an employer has failed to overcome the statutory presumption, the
claimant is entitled to an award of benefits. See Code Secs. 65.2-400 to
407. Even had the medical records established a family history of heart
disease, employer failed to prove by a preponderance of the evidence
that this risk factor actually caused claimant's orthostatic
hypotension. "[T]he showing of 'risk factors' alone does not rebut
the statutory presumption and does not establish competent medical
evidence of a non-work-related cause of the disabling disease." City
of Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246
(1992).references do not constitute evidence that claimant's orthostatic
hypotension was, in fact, of genetic or inherited origin, in whole or in
part. See id. Cf. Augusta County Sheriff's Dep't
v. Overbey, 254 Va. 522, 525, 527, 492 S.E.2d 631, 633,
634 (1997) (finding that employer established a non-work-related cause of
claimant's heart disease based in part on the uncontradicted deposition
testimony of the attending physician that several non-work-related risk
factors "caused" the claimant's heart disease). Claimant also
had a history of smoking as a risk factor. No evidence was
admitted, however, concerning the actual effect of claimant's smoking on
his cardiovascular health. No physician opined that smoking caused
claimant's orthostatic hypotension. Although employer may have established
that claimant's history of smoking was a risk factor for heart disease,
employer failed to present sufficient medical evidence that claimant's
smoking habits actually caused orthostatic hypotension. See Lillard,
15 Va. App. at 429, 424 S.E.2d at 246. City
of Portsmouth Sheriff's Dept. v. Stephen Clark, Record No.
2667-98-1 (September 7, 1999). WP
Version.
The Supreme Court reaffirmed the standard for an employer seeking to
rebut a law enforcement officer's use of the causation presumption. "[I]n order to
overcome the statutory presumption, the employer merely 'must adduce competent medical
evidence of a non-work-related cause of the disabling disease.'" Augusta County Sheriff's Dep't.
v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), (citing Doss v.
Fairfax County Fire & Rescue Dep't, 229 Va. 440, 442, 331 S.E.2d 795, 796 (1985)).
The Court announced that nothing in the statute or the several decisions of this Court
dealing with rebuttal of this presumption suggests that the employer has the burden of
excluding the "possibility" that job stress may have been a contributing factor
to heart disease. Augusta
County Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997) The
purpose of the presumption provided by Code Sec. 65.2-401(B)
is to establish a causal connection between, inter alia, disability from
heart disease and the occupation of a state trooper. Page v. City of Richmond, 218
Va. 844, 847, 241 S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App.
424, 426, 424 S.E.2d 243, 244-45 (1992). The presumption of causation provided by Code
Sec. 65.2-402(B)
is "overcome by a preponderance of evidence to the contrary," and, "[i]n
the absence of competent evidence to the contrary, the statutory presumption controls and
the claimant prevails." Lillard, 15 Va. App. at 426, 424 S.E.2d at 245. The
law is well settled that [i]n order to rebut the presumption, it is not sufficient that
the employer merely adduce evidence that the heart disease was not caused by the
employment; the employer must establish by competent medical evidence a non-work-related
cause to rebut or overcome the statutory presumption that causation exists. Fairfax Co.
Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033, 1036-37, 421 S.E.2d 668, 670-71
(1992) (citing Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337
S.E.2d 307, 308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777.
Code Sec. 65.2-402
provides that "heart disease . . . resulting in total or partial disability of [a
police officer] . . . shall be presumed to be [an] occupational disease, suffered in the
line of duty, . . . unless such presumption is overcome by a preponderance of competent
evidence to the contrary." Thus, to rebut the presumption, an employer must establish
by competent medical evidence a non-work-related cause of the employee's heart disease. City
of Norfolk v. Lillard, 15 Va. App. 424, 430, 424 S.E.2d 243, 246-47 (1992).
"[T]he showing of 'risk factors' alone does not rebut the statutory presumption and
does not establish competent medical evidence of a non-work-related cause of the disabling
disease." Lillard, 15 Va. App. at 429, 424 S.E.2d at 246. No medical evidence
proved either that a non-work-related factor caused Coleman's heart attack or that
work-related stress was not a contributing cause of his disability.
To recover compensation for an ordinary disease of life
as an occupational disease, a claimant must establish "by clear and convincing
evidence, to a reasonable medical certainty, that [his illness] arose out of and in the
course of his employment." Code Sec. 65.2-401.
However, the legislature "has accorded policemen who suffer from heart disease or
hypertension preferential status." Department of State Police v. Talbert, 1
Va. App. 250,253, 337 S.E.2d 307, 308 (1985). Code Sec. 65.2-402
creates a rebuttable presumption that a causal connection exists between an
individual's employment as a police officer and certain diseases. "A presumption
is a rule of law that compels the fact finder to draw a certain conclusion . . . from a
given set of facts." Martin v. Phillips, 235 Va. 523, 526, 369 S.E.2d 397, 399
(1988) (citing Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320,329 (1934)).
"The primary significance of a presumption is that it operates to shift to the
opposing party the burden of producing evidence tending to rebut the
presumption." Martin, 235 Va. at 526, 369 S.E.2d at 399. "[T]he effect of
the presumption is to eliminate the need for a claimant to prove a causal connection
between his disease and his employment." City of Norfolk v. Lillard, 15 Va.
App. 424, 426, 424 S.E.2d 243,244-45 (1992). "In the absence of competent evidence to
the contrary, the statutory presumption controls, and the claimant prevails." Fairfax
County Fire & Rescue Dep't v. Mitchell, 14 Va. App. 1033, 1035, 421 S.E.2d 668,
670 (1992). To trigger the presumption, claimant need only prove his occupation
and his disability from heart disease or hypertension, the diseases
identified in Code Sec. 65.2-402.
Once claimant has established his prima facie case, "[t]he presumption shifts the
burden of going forward with the evidence from the claimant to his employer." Id.
Proof of claimant's disability from heart disease or hypertension depends upon medical
evidence.
Fairfax County Fire and Rescue Services v. Newman, 222 Va. 535,
281 S.E.2d 897 (1981), held that the causation presumptions now codified at Code Sec. 65.2-402
cast "the ultimate risk of nonpersuasion" upon the employer, 222 Va. at 541, 281
S.E.2d at 901. It is fundamental and well settled that the "risk of
nonpersuasion" is a direct reference to the burden of persuasion. See Darden v.
Murphy, 176 Va. 511, 518, 11 S.E.2d 579, 580 (1940) (stating that "the burden of
proof in the sense of the risk of nonpersuasion" is distinguishable from "the
burden of going forward with the evidence").
(See Supreme Court case above: City
of Hopewell, et al.
v. Michael W. Tirpak, Record No. 982126 (
June 11, 1999), WP
Version, placing the burden on the employer to prove by a
preponderance of the evidence that the claimant's disease was not caused by
his employment, and there was a non-work-related cause of the disease.) The
Court of Appeals had held that whether an employer has rebutted the causation presumption is
determined by the commission in its role as fact finder after weighing the evidence
offered by both parties on the issue of causation. because the causation presumption
shifts both the burdens of production and persuasion to the employer, whether proof of
a non-work-related cause is sufficient to rebut the presumption depends upon how the
commission weighs the evidence presented by the parties. If the preponderance of the
evidence produced by the parties indicates to the commission, the trier of fact, that the
heart disease was caused by non-work-related factors and that there was no proximate
causal connection between the disease and the employment, then the causation presumption
is rebutted. A claimant who proves that the causation presumption applies to his or her
claim is entitled to full benefits if there is affirmative evidence deemed persuasive by
the commission that the employment was a contributing cause of the claimant's heart
disease. Thus, if the preponderance of the evidence indicates to the commission that
the claimant's heart disease had multiple causes, at least one of which is related to the
employment, then the presumption that the heart disease was "suffered in the line of
duty" is not rebutted. City
of Hopewell v. Michael W. Tirpak, Record No. 1369-97-2 (July 28, 1998).
The purpose of the presumption provided by Code Sec. 65.2-401(B)
is to establish a causal connection between, inter alia, disability from heart disease and
the occupation of a state trooper. Page v. City of Richmond, 218 Va. 844, 847, 241
S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App. 424, 426, 424
S.E.2d 243, 244-45 (1992). The presumption of causation provided by Code Sec. 65.2-402(B)
is "overcome by a preponderance of evidence to the contrary," and, "[i]n
the absence of competent evidence to the contrary, the statutory presumption controls and
the claimant prevails." Lillard, 15 Va. App. at 426, 424 S.E.2d at 245. The
law is well settled that [i]n order to rebut the presumption, it is not sufficient that
the employer merely adduce evidence that the heart disease was not caused by the
employment; the employer must establish by competent medical evidence a non-work-related
cause to rebut or overcome the statutory presumption that causation exists. Fairfax Co.
Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033,1036-37, 421 S.E.2d 668, 670-71
(1992) (citing Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337
S.E.2d 307, 308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777. The issue here
is whether the employer must establish a non-work-related cause to the exclusion of
work-related factors. In Mitchell, the Court of Appeals held that where the
employer's "rebuttal evidence fail[s] to exclude a work-related factor as a cause of
the heart disease, the finding of the commission that the employer failed to rebut the
presumption in claimant's favor is conclusive and binding on appeal." Mitchell,
14 Va. App. at 1034, 421 S.E.2d at 669; see also Talbert, 1 Va. App. at 253, 337
S.E.2d at 308; County of Amherst v. Brockman, 224 Va. 391, 399,297 S.E.2d 805,
809-10 (1982) (commission's award affirmed if rebuttal evidence does not exclude stress as
possible "contributing cause"). Here, employer presented significant evidence
of non-work-related factors which may have contributed to the claimants' conditions, but
it did not exclude the claimants' work as a contributing factor. In proving
causation in a workers' compensation case where the evidence demonstrates two or more
potential causative factors, one of two conclusions follows. Either, a combination of
factors contributed to cause the disability; or, one of the factors caused the disability
to the exclusion of the others. The "two causes rule" addresses those cases
"where a disability has two causes: one related to the employment and one
unrelated." Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28, 294 S.E.2d 805,
808 (1982) (quoting Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801,
803 (1981)); see also Shelton v. Ennis Business Forms, 1 Va. App. 53, 55, 334
S.E.2d 297, 299 (1985). Under the two causes rule, "full
benefits [are] allowed when it is shown that `the employment is a contributing factor.'"
Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergman, 222 Va.
at 32, 278 S.E.2d at 803); see also Shelton, 1 Va. App. at 55, 334 S.E.2d at 299.
The "more probable than not rule," addresses those cases where only one of a
number of possible factors caused the disability. See id. Under the more
probable than not rule, for the disability to be compensable, it must be more
probable than not that it was caused by the work-related factor. Id. That
is, a preponderance of evidence must show that work was the cause of the disability. Id.
As in Smith and Bergmann, the evidence in this case proved that a number of
factors contributed to the development of claimants' conditions. Under the
"two causes" rule, causation, and therefore compensability, is established when
it is shown that work contributed to the disability. For this reason, in
a case where the evidence demonstrates that multiple factors, including job stress,
contributed to the development of a police officer's heart disease, the employer must
exclude work-related stress as a contributing factor to rebut the presumption of
causation. Here, both the deputy commissioner and the full commission found
that employer's evidence failed to exclude job stress as a contributing factor. Cf. Doss
v. Fairfax County Fire Dept., 229 Va. 440, 441-42, 331 S.E.2d 795, 795-96 (1985)
(employer's evidence established a non-work-related cause to the exclusion of work-related
factors); Cook v. City of Waynesboro, 225 Va. 23, 28-30, 300 S.E.2d 746, 748-49
(1983) (same). Finch
Weston Duffy, et al. v. Commonwealth of Virginia/Department of State Police,
Record No. 0945-95-4 (April 9, 1996).
Sec. 65.2-402(C) presumption requires proof of cause. After 30 years with
the fire department, Claimant was diagnosed with prostate cancer,
an ordinary disease of life of unknown etiology. Claimant's evidence, however, documented an exposure to
cadmium, a substance identified as carcinogenic by the International
Agency for Research on Cancer (IARC), as a suspected cause of prostate
cancer. Code Sec. 65.2-402(C), provides, in pertinent part, that “prostate
cancer, caused by a documented contact with a toxic substance that a . . .
fire fighter . . . has encountered in the line of duty and that causes . .
. any health condition or impairment[,] . . . shall be presumed to be an
occupational disease, suffered in the line of duty, that is covered by
this title, unless such presumption is overcome by a preponderance of
competent evidence to the contrary. For
the purposes of this section, a ‘toxic substance’ is one which is a
known or suspected carcinogen, as defined by the International Agency for
Research on Cancer [IARC], and which causes, or is suspected to cause, . .
. prostate . . . cancer.” Code Sec. 65.2-402
(C) explicitly
provides that the presumption of occupational disease applies to prostate
cancer "that is caused by a documented contact with a toxic
substance." Claimant was not entitled to the statutory presumption
of occupational disease because he did not prove that exposure to the
toxic substance cadmium "caused or contributed to cause, his prostate
cancer." Newell
E. Whitehead, Jr. v. City of Portsmouth FD, Record No. 2975-98-1
(July 27, 1999). WP
Version.
The full commission erred
in finding that the employer had carried its burden of proving in each
case, by a preponderance of the evidence, that Medlin's and Vass' work was
not a proximate cause of their heart disease.
In this matter of first impression before the Virginia
appellate courts, the court addressed the question of whether testimony
which only generally refutes the existence of a causal relationship
between work-related stress and heart disease rebuts the statutory
presumption established under Code Sec. 65.2-402(B).
The court held that testimony of this nature is not probative on the
issue.
Code Sec. 65.2-402(B)
provides the following presumption in certain workers' compensation cases:
Hypertension or heart disease causing the death of, or any health
condition or impairment resulting in total or partial disability of
[various specified law enforcement personnel] shall be presumed to be
occupational diseases, suffered in the line of duty, that are covered by
this title unless such presumption is overcome by a preponderance of
competent evidence to the contrary. The statute requires that in order for
the presumption to apply, the employee must have undergone a
pre-employment physical examination, if requested by the employer, and
must have been found to be free of hypertension or heart disease at the
time of that examination. Code Sec. 65.2-402(D).
Medlin proved that the presumption applied to him.
He was a member of the Henrico County Police Department at all times
relevant to this claim. Although Medlin began his employment with the
County in 1974, he was not asked to undergo a physical examination until
1976. At the time of the examination, he was found to be free of heart
disease and hypertension. Finally, Medlin was diagnosed with heart disease
in May, 1998 and was also found to be suffering from hypertension at that
time.
Likewise, Vass proved the presumption applied to
him. Vass has been employed by the Henrico County Police Department
since 1974. In 1976, he was found to be free of heart disease and
hypertension following a physical examination conducted at the direction
of his employer. Finally, Vass was diagnosed with hypertension and heart
disease in February, 1997.
After the claimant establishes that he is entitled to
the presumption, the burden shifts to the employer to refute the
presumption. Fairfax County Fire and Rescue Dept. v. Mitchell,
14 Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992). The employer must
prove, by a preponderance of the evidence, two factors: (1) a
non-work-related cause for the heart disease; and (2) that work was not a
cause of the claimant's heart disease. Bass
v. City of Richmond Police Dept., 258 Va. 103, 112-13, 515
S.E.2d 557, 561-62 (1999).
Medlin conceded that, in addition to work-related
causes, there were non-work-related causes that contributed to his
heart disease. Vass likewise conceded that both work-related and
non-work-related causes contributed to his heart disease. Therefore, because
a non-work-related cause was established, the remaining question is
whether the employer proved, by a preponderance of competent evidence,
that the work that Medlin and Vass performed as police officers did not
contribute to their heart disease.
In finding that the employer had proved Medlin's work
was not a cause of his heart disease, the commission relied, in part, on
the testimony of Dr. Hess. Dr. Hess concluded that, as a general
matter, occupational stress does not cause heart disease. In Vass'
case, the commission relied, in part, on the testimonies of Drs. Hess and
Seides in finding the employer had proved Vass' work was not a cause of
his heart disease. Both doctors testified that, as a general matter,
occupational stress is not linked to the development of heart disease.
The court found that because of the legislatively
created presumption to the contrary, Dr. Hess' and Dr. Seides' opinions
regarding the relationship between occupational stress and heart disease
were of no probative value to the issues in these cases. See Page
v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978).
Code Sec. 65.2-402
"has long been recognized as a remedial statute, enacted by the
legislature to overcome the difficulty that a [police officer] would
otherwise have in proving causation." City of Norfolk v. Lillard,
15 Va. App. 424, 430, 424 S.E.2d 243, 247 (1992). In enacting the statute,
"[t]he legislature knew that the causes of . . . cardiac diseases are
unknown and that the medical community is split regarding the impact of
stress and work environment on these diseases." Fairfax County
Fire and Rescue Services v. Newman, 222 Va. 535, 540, 281 S.E.2d 897,
900 (1981); see also Stephens v. Workmen's Compensation Appeals Board,
20 Cal. App. 3d 461, 465 (Cal. Ct. App. 1971); Robertson v. North
Dakota Workers' Compensation Bureau, 616 N.W.2d 844, 854 (N.D. 2000); Sperbeck
v. Dept. of Industry, Labor & Human Relations, 174 N.W.2d 546, 548
(Wis. 1970). By enacting the statutory presumption, the General Assembly
resolved the split in medical opinions in favor of the employee and
adopted the presumption that the stress of working as a law enforcement
officer causes or contributes to the development of heart disease. See Stephens,
20 Cal. App. 3d at 465; Linnell v. City of St. Louis Park, 305
N.W.2d 599, 601 (Minn. 1981); Cunningham v. City of Manchester Fire
Dept., 525 A.2d 714, 718 (N.H. 1987); Robertson, 616 N.W.2d at
854.
Testimony which merely refutes the premise of such a
legislatively enacted presumption does not constitute proper evidence in
rebuttal. Where the General Assembly has concluded that there is a
causal link between stress and heart disease, it is not for the commission
or the courts to reconsider the issue, for to do so would defeat the
intentions of the legislature. It thus follows that, "[i]t is
impermissible for the [commission] to accept the opinion of a physician so
disposed as the basis for disallowing a claim." Stephens, 20
Cal. App. 3d at 467; Swanson v. City of St. Paul, 526 N.W.2d 366,
368 (Minn. 1995); Cunningham, 525 A.2d at 718; Robertson,
616 N.W.2d at 854. Stated otherwise, the employer may not, in effect,
"repeal" the statute "by seeking out a doctor whose beliefs
preclude its possible application." Stephens, 20 Cal. App. 3d
at 467; see also Linnell, 305 N.W.2d at 601; Sperbeck, 174
N.W.2d at 289. In Sperbeck, the court noted that "[e]vidence
which only attacks the rationale of the statute . . . does nothing more
than question the wisdom of the legislature." Sperbeck, 174
N.W.2d at 289. If the majority of the medical community concludes there is
no link between stress and heart disease, the employer's remedy is to go
back to the General Assembly. Sperbeck, 174 N.W.2d at 289.
Accordingly, evidence that merely rebuts generally the underlying
premise of the statute, which establishes a causal link between stress and
heart disease, is not probative evidence for purposes of overcoming the
presumption. The commission therefore erred when it relied, in part,
on the testimonies of Dr. Hess and Dr. Seides, which did no more than
refute the conclusion of the Virginia General Assembly. Because the weight
the commission assigned to Dr. Hess' and Dr. Seides' opinions in reaching
its decisions is unclear, both cases must be remanded to the commission
to determine whether the employer has sufficiently rebutted the
presumption in light of the remaining probative evidence in these cases.
See Virginia Dept. of State Police v. Talbert, 1 Va. App. 250, 253,
337 S.E.2d 307, 308 (1985) ("We do not review the weight or
preponderance of the evidence nor the credibility of the witnesses, except
to consider whether there exists sufficient credible evidence to sustain
the findings.").
In City
of Portsmouth Sheriff's Dept. v. Clark, 30 Va. App. 545, 518
S.E.2d 342 (1999). In Portsmouth, the court held that proof of a
"risk factor" alone does not establish a non-work-related cause
for a claimant's heart disease. Portsmouth, 30 Va. App. at 554,
518 S.E.2d at 346. The court found that the employer in that case had
failed to prove that the claimant's family history risk factor actually
caused his disease. Id. The commission erred in its
application of the holding in Portsmouth. Contrary to the
commission's conclusion that "Dr. Schwartz speaks only of 'risk
factors,'" the record shows that in Vass' case, Dr. Schwartz opined
that Vass' occupational stress was a risk factor that "can be
considered a contributing factor" in the development of his
disability. Because it erroneously applied the holding in Portsmouth,
the commission did not consider what weight, if any, it would accord Dr.
Schwartz's opinion, as it is required to do. Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991)
("Medical evidence is not necessarily conclusive, but is subject to
the commission's consideration and weighing."). On remand, the
commission will have to reconsider Dr. Schwartz's opinion, together with
all the remaining evidence in this case, in light of this holding.
The commission also erred, as a matter of law, in
concluding that because Drs. Bennett and Matthews stated that Medlin's
work was a contributing factor in "the development, acceleration
and/or aggravation" of Medlin's heart disease, that the disease must
have pre-existed his employment. The commission similarly erred in Vass'
case with respect to the commission's treatment of Dr. Overmeyer's
opinion.
In both opinions, the commission cited Ashland
Oil Co. v. Bean, 225 Va. 1, 300 S.E.2d 739 (1983), for the
proposition that "[i]f work merely aggravates a disease, then the
disease must have pre-existed the employment. Work, then, could not have
been the originating cause of the disease, and the aggravation would not
be compensable as an occupational disease." The Virginia Supreme
Court held in Ashland Oil
that an employee cannot recover "for aggravation of ordinary diseases
of life," id. at 3, 300 S.E.2d at 740. Here, the uncontroverted
evidence showed that Medlin and Vass began their employment in 1974 and
were found to be free of heart disease and hypertension in 1976, following
a physical examination conducted at the direction of the County.
Therefore, Medlin's and Vass' conditions did not pre-exist their
employment. In addition, the Code Sec. 65.2-402
presumption provides that if the employee can prove he was free of heart
disease or hypertension at the beginning of his employment, his disease
will be presumed to be an occupational disease. Therefore, the commission
erred, as a matter of law, in misinterpreting Ashland
Oil, and in concluding that Medlin's and Vass' disease
pre-existed their employment.
Because the commission improperly considered Dr. Hess'
and Dr. Seides' opinions in reaching its decisions, both cases were
remanded to the commission for reconsideration of the remaining evidence. James
Isaac Medlin, Jr. v. County of Henrico Police, 34 Va. App.
396, 542 S.E.2d 32 (2001), Record No.
1047-00-2 (January 27, 2001); Stephen
Douglas Vass v. County of Henrico Police, Record No. 1048-00-2
(January 27, 2001).WP
Version.
Medlin II. Medlin I (Medlin v. County of Henrico Police,
34 Va. App. 396, 542 S.E.2d 33 (2001)) does not require exclusion of
expert testimony and opinion that is inconsistent with the Code Sec.
65.2-402 presumption. That contention misreads Medlin I.
Medlin I holds only that "evidence that merely rebuts generally the
underlying premise of the statute, which establishes a causal link between
stress and heart disease, is not probative evidence for the purposes of
overcoming the presumption." Medlin I, 34 Va. App. at 407,
542 S.E.2d at 39 (emphasis added). Under this holding, expert
opinion that merely discounts the presumption is non-probative and
irrelevant to refute the presumption. To refute the
presumption, evidence must deny that work was a cause or risk factor of
the claimant's heart disease, see
Bristol City
Fire Dep't and Virginia Mun. Group Self-Ins. Ass'n v. Maine,
35 Va. App. 109, 117, 542 S.E.2d 822, 826 (2001), and must attribute
the claimant's heart disease to a specific, non-work-related cause.
The commission did not exceed its authority by re-examining
the evidence on remand. The direction of the Court of Appeals in
Medlin I refutes this argument. Holding that the commission
erred in relying on Dr. Hess's testimony, the court gave the following
instruction: Because the weight the commission assigned to Dr.
Hess's . . . opinions in reaching its decisions is unclear, we remand . .
. to the commission to determine whether the employer has sufficiently
rebutted the presumption in light of the remaining probative evidence . .
. .Medlin I, 34 Va. App. at 408, 542 S.E.2d at 39.
The law of the case doctrine also does not apply. The
law of the case doctrine provides that "[w]here there have been two
appeals in the same case, between the same
parties, and the facts are the same, nothing decided on the first appeal
can be re-examined on a second appeal."
Uninsured
Employer's Fund v. Thrush, 255 Va. 14, 18, 496 S.E.2d 57,
58-59 (1998). This doctrine does not apply to the case before us.
No determinations from the first case carried forward to this case.
The commission's original factual determinations were not addressed in
Medlin I. The case was remanded because those factual
determinations were based on an erroneous application of law.
The commission did not err in finding that the Code Sec.
65.2-402(B) presumption was not rebutted. Medlin was free of heart
disease and hypertension when he began working for the Henrico County
Police Department in 1976. Expert testimony that his May 2, 1997
attack and his heart disease were stress-related supports the presumption
and the
commission's decision to award him benefits. "Decisions of the
commission as to questions of fact, if supported by credible evidence, are
conclusive and binding on this Court." Manassas Ice, 13 Va.
App. at 229, 409 S.E.2d at 826. "The fact that
contrary evidence may be found in the record is of no consequence if
credible evidence supports the commission's finding." Id.
County of
Henrico Police v. James Isaac Medlin, Jr., Record No.
1891-01-2 (March 26, 2002).
WP Version.
The Workers' Compensation Commission
("commission") did not err in awarding temporary total and
medical benefits to claimant. Employer did not rebut the presumption
afforded by Code Sec. 65.2-402
and claimant presented evidence sufficient to prove that his heart disease
arose out of and in the course of his employment.
Claimant began work as a firefighter for employer in
1971. He was not given a pre-employment physical; however, the results of
all later physicals done prior to his heart attack were within normal
limits. Claimant described his employment history and the stressful
situations he experienced as a firefighter. During the time period of
September 27-30, 1996 claimant suffered a heart attack. He was treated by
Dr. Mark A. Borsch, who performed two separate angioplasties. Dr. Borsch
released claimant to return to full duty employment on March 31, 1997. The
parties stipulated that claimant: (1) was entitled to claim the
presumption afforded by Code Sec. 65.2-402;
(2) was employed with Bristol City Fire Department at all times relevant
to this case; (3) suffered a heart attack; and (4) was disabled for the
period claimed.
Bass
v. City of Richmond Police Department, 258 Va. 103, 515 S.E.2d
557 (1999) clarified the decision in Augusta
County Sheriff's Department v. Overbey, 254 Va. 522, 492
S.E.2d 631 (1997), and set out a two-prong test employers must meet to
overcome the presumption of Code Sec. 65.2-402.
"To overcome the presumption the employer must show, by a
preponderance of the evidence, both that 1) the claimant's disease was not
caused by his employment, and 2) there was a non-work related cause of the
disease." Bass,
258 Va. at 112-13, 515 S.E.2d at 561-62. The commission found that
employer failed to meet the second prong of the Bass test.
Regarding this prong, both the claimant's treating
physician, Dr. Borsch, and the employer's expert, Dr. Hess, identified
non-work related causes of the claimant's heart disease. Dr. Seides, while
identifying some risk factors, failed to specifically state that these
risk factors caused the claimant's disease. On the other hand, Dr.
Schwartz excluded both family history and elevated cholesterol as risk
factors. Admittedly, Dr. Schwartz speaks in terms of statistical
correlates vice [sic] causative factors. Thus, a positive identification
by Dr. Schwartz of a risk factor may not constitute persuasive evidence of
a cause of a disease. The converse, however, is not true. No physician has
identified a cause of the claimant's disease without first finding the
causative factor to be a risk factor. Accordingly, Dr. Schwartz' opinion
that family history and cholesterol are not risk factors constitutes
evidence that these factors are not causes of the disease.
The medical opinions of Drs. Hess and Seides simply
attempt to discount the presumption of Code Sec. 65.2-402,
rather than evaluating whether work was a cause or risk factor of the
heart disease. We have recently held "that because of the
legislatively created presumption to the contrary, Dr. Hess' and Dr.
Seides' opinions regarding the relationship between occupational stress
and heart disease were of no probative value to the issues in these
cases." Medlin
v. County of Henrico Police, 34 Va. App. 396, 40, 542 S.E.2d
33, 38-39 (2001). Testimony which merely refutes the premise of such a
legislatively enacted presumption does not constitute proper evidence in
rebuttal. Where the General Assembly has concluded that there is a causal
link between stress and heart disease, it is not for the commission or the
courts to reconsider the issue, for to do so would defeat the intentions
of the legislature. Id. at ___, ___ S.E.2d at ___. "Evidence
that merely rebuts generally the underlying premise of the statute, which
establishes a causal link between stress and heart disease, is not
probative evidence for purposes of overcoming the presumption." Id.
at ___, ___ S.E.2d at ___.Therefore, the commission did not err in giving
greater weight to the medical opinion of Dr. Schwartz. He addressed
claimant's situation specifically and opined that his family history and
cholesterol levels were not risk factors in the development of his heart
disease. Bristol
City Fire Dep't. v. Roy Carroll Maine, 35 Va. App. 109, 542
S.E.2d 822 (2001), Record No. 1537-00-4
(March 13, 2001). WP
Version.
Application of the presumption to claimant's
virally
induced heart disease, coupled with evidence that work-related stress made
claimant more susceptible to the virus and resulting heart disease, is
constitutional under Fairfax County Fire & Rescue Services v. Newman,
222 Va. 535, 281 S.E.2d 897 (1981). Quoting its earlier
decision in Crenshaw v. Commonwealth, 219 Va. 38, 42, 245 S.E.2d
243, 246 (1978), it held that for the application of such a presumption to
be constitutional, "(1) a 'natural and rational' evidentiary nexus must
exist between the fact proved and the fact presumed and (2) the
presumption must be rebuttable." Newman, 222 Va. at 539-40,
281 S.E.2d at 900. In claimant's case, a "natural and rational nexus"
exists between law enforcement occupations and heart disease in general.
Id. at 540, 281 S.E.2d at 900. As the Court observed in
Newman, the primary causes of many cardiac diseases are unknown, and
the medical community is split regarding the impact of stress and work
environment on these diseases. Id.; see also, e.g., City
of Portsmouth Sheriff's Dep't v. Clark, 30 Va. App. 545, 553-56, 518
S.E.2d 342, 346-47(1999)(discussing "risk factors" for coronary artery
disease and noting absence of evidence of definitive causes of such
disease); City of Richmond Fire Dep't v. Dean, 30 Va. App. 306,
312, 516 S.E.2d 709, 712 (1999) (noting that twenty to thirty percent of
"heart block" cases are of unknown origin); Duffy v. Dep't of State
Police, 22 Va. App. 245, 247, 468 S.E.2d 702, 703 (1996) (noting
evidence that stress contributed to development of police officer's
coronary artery disease). The jobs of law enforcement officers, like
firefighters, are often stressful. Because at least some members of
the medical community believe stress is a factor in the development of
heart disease, a natural and rational nexus exists between the occupation
and the disease, rendering Code Sec. 65.2-402(B) constitutional on its
face.
Further, a "natural and rational
nexus" exists between claimant's duties as a police officer and
cardiomyopathy, the specific heart disease from which he suffers.
Although some of the evidence was conflicting, claimant presented
testimony accepted by the commission that his virally induced
cardiomyopathy was work-related because it was more likely than not that
he contracted it during close interpersonal contact required by his
employment and because the stress inherent in his job made him more
susceptible to contracting the virus. Thus, although heart disease
that is virally induced may be unusual, a "natural and rational" nexus
exists between the presumption and the fact to be proved under the facts
of this case.
Finally, the presumption was not
irrebuttable under the facts of this case. Here, as in Newman,
employer's inability to rebut the presumption resulted from the
shortcomings of medical science, i.e., the difficulties inherent in trying
to pinpoint the precise source from which one has contracted a virus and
in determining the impact of job stress on the ability of one's immune
system to resist such a virus. The employer's difficulties in
rebutting the presumption did not result from an evidentiary rule which,
"for all practical purposes," excluded relevant evidence, which was the
case with the presumption found unconstitutional in Crenshaw, 219
Va. at 42, 245 S.E.2d at 246. Thus, application of the presumption was not
unconstitutional under the facts of this case.
The evidence that
claimant's heart disease resulted from a virus did not prove a
non-work-related cause of the heart disease sufficient to rebut the
presumption because the evidence supported a finding that claimant
could have contracted the virus, and more probably than not did contract
it, through work-related exposure and that claimant's job stress increased
his susceptibility to the virus. Thus, the evidence supports the
commission's conclusion that employer failed to prove a non-work-related
cause. Employer failed to rebut the presumption. The legal
principles are simple. Claimant established a prima facie case of
coverage by proving he was a police officer and that he experienced a
disability resulting from heart disease. City of Norfolk v.
Lillard, 15 Va. App. 424, 427, 424 S.E.2d 243, 245 (1992). The
burden then shifted to employer to prove by a preponderance of the
evidence both that (1) the claimant's disease was not caused by his
employment and (2) a non-work-related cause of the disease existed. Bass
v. City of Richmond Police Department, 258 Va. 103, 115, 515 S.E.2d
557, 563 (1999). Employer failed to meet that burden.
The commission found, as employer
concedes it was entitled to do, that claimant's heart disease was caused
by a virus. The mere fact that claimant could have contracted the
virus which caused his cardiomyopathy from a source unrelated to his
employment is insufficient to establish the cause was, in fact,
non-work-related. Further, evidence before the commission indicated
that the nature of claimant's work as a police officer in fact increased
his risk of contracting the type of "community acquired" virus which
caused his heart condition because it both (1) placed him in greater
contact with the public and with their various bodily fluids and (2)
increased the overall level of stress in his life, thereby rendering him
more susceptible to all viruses.
In arguing the constitutional
question on brief, employer concedes that even without the presumption, a
claimant may establish a connection between his employment and "all manner
of viruses and bacterial infections." Thus, employer's contention
that the unknown, "community acquired" virus which caused claimant's
cardiomyopathy was inherently non-work-related is disingenuous.
Carried to its logical extreme, employer's argument would prevent coverage
for any disability resulting from a virus spread among the general
population, even if a claimant could prove the required nexus between the
virus and his employment. If the legislature had wished to exclude
from the coverage of the presumption those forms of heart disease with
known causes or viral causes, it could have done so, but it did not.
Thus, credible evidence supports the commission's decision.
Town of
Purcellville Police v. Bromser-Kloeden, Record No. 2335-00-4
(April 10, 2001).
WP Version.
The commission did not err in finding that
claimant had heart disease and did not err in holding that employer failed
to rebut the statutory presumption of Code Sec. 65.2-402(B)
that claimant's heart condition was an occupational disease covered by the
Workers' Compensation Act.
Claimant was a fifty-three-year-old police officer who had
been on the force for approximately twenty six years. Thirty minutes after
carrying a television into his home, he died. Without examining the body,
claimant's
family physician for thirty years, Dr. Forbes, executed the death
certificate, indicating that Coffey died as a result of acute myocardial
infarction. No autopsy was performed or requested. Claimant had not
been diagnosed with heart disease prior to his death.
The first issue is whether the evidence is
sufficient to prove that claimant died as a result of a heart attack or
heart disease. See Code Sec. 65.2-402(B); Page v. City
of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978). Six
physicians rendered opinions as to the cause of claimant's death.
See Code Sec. 8.01-401.1 ("[A]ny expert witness may give testimony and
render an opinion or draw inferences from facts, circumstances, or data
made known to . . . such witness . . . . The expert may testify in
terms of opinion or inference and give his reasons therefor without prior
disclosure of the underlying facts or data . . . ."); Cox v. Oakwood
Mining, Inc., 16 Va. App. 965, 434 S.E.2d 904 (1993) (applying Code
Sec. 8.01-401.1). "An expert's opinion which is neither based upon facts
within his own knowledge nor established by other evidence is speculative
and possesses no evidential value." Gilbert v. Summers, 240
Va. 155, 160, 393 S.E.2d 213, 215 (1990). However, a doctor's expert
medical opinion is not speculative if based on an accurate understanding
of the relevant facts. See id.; cf.
Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15,16 (1985) (per curiam) (holding that a doctor's medical opinion was not
credible when based upon a faulty premise); Spruill v. Commonwealth,
221 Va. 475, 479, 271 S.E.2d 419, 421 (1980) (stating that a medical
opinion is speculative if based on a "possibility" but admissible and
sufficient if based on a "reasonable probability"); Circuit City
Stores, Inc. v. Scotece, 28 Va. App. 383, 387-88, 504 S.E.2d 881,
883-84 (1998) (adopting standard for admissibility of medical evidence
articulated in Spruill). In rendering their opinions, the
physicians had access to claimant's medical records, the records of the
emergency personnel who attempted to resuscitate claimant, and claimant's
wife's deposition detailing the facts and circumstances immediately
preceding claimant's death. Several doctors attributed claimant's
death to heart disease or conditions associated with it. Although
employer's experts advanced alternative causes for claimant's death, the
physicians stated that such causes other than heart disease were unusual.
Therefore, credible evidence supports the commission's finding that
claimant died of heart disease.
The second issue is whether the employer rebutted the
presumption of Code Sec. 65.2-402(B)
that once the claimant had shown that the law enforcement official died
as a result of heart disease, the heart disease shall be presumed to be an
occupational disease unless this presumption is sufficiently rebutted by
employer. The Supreme Court recently held that [t]o overcome the
presumption [contained in Code Sec. 65.2-402(B)],
the employer must show, by a preponderance of the evidence, both that
1) the [employee's] disease was not caused by his employment, and 2)
there was a non-work-related cause of the disease. Thus, if the
employer does not prove by a preponderance of the evidence both parts of
this two-part test, the employer has failed to overcome the statutory
presumption. Bass
v. City of Richmond Police Department, 258 Va. 103, 114, 515
S.E.2d 557, 562-63 (1999) (citations omitted). Although employer's experts
presented evidence of non work-related causes of claimant's heart disease,
the the medical evidence was in substantial conflict. Two of
employer's experts impermissibly attempted to rebut the legislative
presumption by negating any causal link between occupational stress and
heart disease, and, thus, is not probative rebuttal evidence. Medlin
v. County of Henrico Police, 34 Va. App. 396, 40, 542 S.E.2d
33, 38-39 (2001). Although another employer expert conceded that stress
was a "minor factor" in this case, he failed to exclude it as a
significant factor causing his heart disease. Accordingly, the
commission did not err in finding that employer's rebuttal evidence failed
to exclude claimant's occupational stress as a cause of his heart disease.
City of
Waynesboro Police v. Sharon Coffey, etc., Record No.
1456-00-2 (April 17, 2001).
WP Version.
VIRGINIA
BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ACT
The commission did not err when it
found that the Virginia Birth-Related Neurological Injury Compensation
Program (Program) failed to rebut the statutory presumption contained
in Code Sec. 38.2-5008(A).
The Virginia Birth-Related Neurological Injury Compensation Act (Act) was
established to provide compensation to families whose neonates suffer
"birth-related neurological injuries." See Code Secs. 38.2-5000
through 38.2-5021. Code Sec. 38.2-5001 defines a "birth-related
neurological injury" as follows:
"Birth-related neurological injury" means injury to the brain or
spinal cord of an infant caused by the deprivation of oxygen or mechanical
injury occurring in the course of labor, delivery or resuscitation in the
immediate post-delivery period in a hospital which renders the infant
permanently motorically disabled and (i) developmentally disabled or (ii)
for infants sufficiently developed to be cognitively evaluated,
cognitively disabled.
Code Sec. 38.2-5008(A)
provides as follows: A rebuttable presumption shall arise that the
injury alleged is a birth-related neurological injury where it has been
demonstrated, to the satisfaction of the Virginia Workers' Compensation
Commission, that the infant has sustained a brain or spinal cord injury
caused by oxygen deprivation or mechanical injury, and that the infant was
thereby rendered permanently motorically disabled and (i) developmentally
disabled or (ii) for infants sufficiently developed to be cognitively
evaluated, cognitively disabled. The presumption set forth in Code Sec.
38.2-5008(A)
must be construed according to the "Morgan theory." Therefore,
the presumption set forth in Code Sec. 38.2-5008(A)
shifts to the Program both the burden of production and the burden of
persuasion on the issue of causation. Tommy, who suffers from severe
cerebral palsy, was born on March 30, 1989, after twenty-seven weeks
gestation. The Program has not carried its burden. Notwithstanding
the opinions of Dr. Seeds, writing on behalf of the panel, and Dr.
Partridge, it is clear that Tommy suffered from oxygen deprivation during
the birth-process -- he was not breathing when he was born, the umbilical
cord was wrapped around his neck, and he required seven minutes of CPR to
resuscitate him. Although his condition improved for a few moments after
resuscitation, he immediately decompensated in intensive care and for
several hours the doctors were unable to obtain acceptable oxygen levels.
As to the contribution of this oxygen deprivation to his disability, Dr.
Brennan, a neurologist, and Dr. Bryant, who treated Tommy shortly after he
was born, both attributed his problems in part to asphyxia. Dr. Brennan
specifically referred to "initial asphyxia" as contributing to
his neurological condition. Dr. Wells, another treating physician, simply
described Tommy's cerebral palsy as a "birth injury." Dr.
Partridge's report indicates that he was trying to discern the
"asphyxia causation." Virginia
Birth-Related Neur. Inj. Comp. v. Ada Young, 34 Va.
App. 306, 311, 541 S.E.2d 298, 301 (2001), Record No.
0827-00-2 (February 13, 2001). WP
Version.
The commission did not err in assuming
jurisdiction and deciding his claim without affording the claimant legal
counsel; but the commission erred in holding that the Birth-Related
Neurological Compensation Program (the Program) had successfully rebutted
the presumption set forth in Code Sec. 38.2-5008(A)(1).
The commission's failure to appoint legal counsel to
prosecute claimant's petition and a guardian ad litem to protect
claimant's interests did not deny it jurisdiction to decide his claim.
The commission properly afforded claimant his procedural rights under the
Act and that it had jurisdiction to decide his claim.
The Act provides monetary relief to claimants who have
sustained a "[b]irth-related neurological injury," which is
defined as injury to the brain or spinal cord of an infant caused by the
deprivation of oxygen or mechanical injury occurring in the course of
labor, delivery or resuscitation in the immediate post-delivery period in
a hospital which renders the infant permanently motorically disabled and (i)
developmentally disabled or (ii) for infants sufficiently developed to be
cognitively evaluated, cognitively disabled . . . [and which] disability
[causes] the infant to be permanently in need of assistance in all
activities of daily living. Code Sec. 38.2-5001.
Recognizing the difficulty in proving when such an injury was sustained,
the legislature enacted a presumption to assist potential claimants in
obtaining benefits. Code Sec. 38.2-5008(A)(1)
provides, in pertinent part, as follows: A rebuttable presumption shall
arise that the injury alleged is a birth-related neurological injury where
it has been demonstrated, to the satisfaction of the Virginia Workers'
Compensation Commission, that the infant has sustained a brain or
spinal cord injury caused by oxygen deprivation or mechanical injury,
and that the infant was thereby rendered permanently motorically
disabled . . . . If either party disagrees with such presumption, that
party shall have the burden of proving that the injuries alleged are
not birth-related neurological injuries within the meaning of the
chapter. This is a "Morgan theory" presumption, which shifts
"'both the burden of production and the burden of persuasion on the
factual issue in question to the party against whom the presumption
operates.'" Virginia
Birth-Related Neurological Injury Compensation Program v. Young,
34 Va. App. 306, 311, 541 S.E.2d 298, 301 (2001).
The Code Sec. 38.2-5008(A)(1)
presumption is stated in essentially the same terms as the heart-lung
presumption of Code Sec. 65.2-402(A), (B). Thus, to defeat the
Code Sec. 38.2-5008(A)(1)
presumption, the Program must prove, to a reasonable degree of medical
certainty, see Augusta
County Sheriff's Dep't v. Overbey, 254 Va. 522, 527, 492 S.E.2d 631,
634 (1997), both (1) that the claimant's brain or spinal cord injury did
not occur "in the course of labor, delivery or resuscitation in the
immediate post-delivery period in a hospital" and (2) that there was
a specific, non-birth-related cause of the injury.
No physician concluded, to a reasonable degree of
medical certainty, that claimant's injuries did not occur at birth.
None of the medical opinions was stated to a reasonable degree of medical
certainty. The three-physician panel concluded that claimant's
"prompt response to resuscitation and his early neonatal course are
inconsistent with birth-related neurological injury," but did not
state this opinion to a reasonable degree of medical certainty.
Assuming arguendo that the evidence supports a finding
that claimant's injuries did not occur at birth, it fails to prove, to a
reasonable degree of medical certainty, a specific, non-birth-related
cause. None of the medical opinions identified, to a reasonable
degree of medical certainty, a non-birth-related cause of claimant's
condition.
The evidence failed, as a matter of law, to support
the commission's holding that the Program had rebutted the Code Sec. 38.2-5008(A)(1)
presumption. Thus, the presumption carried claimant's burden of
proof, and he is entitled to an award of benefits under the Act. Devin
M. Coffey, An Infant v. Virginia Birth-Rel. Neurolological Injury Program,
Record No. 0529-01-4 (January 29, 2002). WP
Version.
The commission did not err when it found claimant's claim did not meet
the requirements of Code Sec.
65.2-406 because he filed the claim more than two years after
he received a diagnosis of an occupational disease. Claimant
began working for the York County Fire and Rescue Department in 1973.
Claimant remained employed with the Fire and Rescue Department until 1999.
He filed a claim for benefits on October 21, 1999, alleging he had
contracted an occupational disease, hypertension.
In a 1995 examination claimant had a blood pressure reading
of 190/100. He was diagnosed with "hypertension, stage II."
Dr. Hollingsworth placed claimant on hypertension medicine, indicating he
would discuss treadmill tests with the fire chief "before this patient can
be cleared for the Fire Department." On January 23, 1996, Dr. Bryant
examined claimant. Dr. Bryant confirmed Dr. Hollingsworth's diagnosis of
"hypertension" and again prescribed hypertension medication.
Claimant's blood pressure was 221/110. On January 25, 1996 Dr.
Bryant recommended the same hypertension medication, but at an increased
dosage, and advised claimant "he would not be able to work if the [blood
pressure] was not well controlled." Dr. Bryant listed claimant's
primary problem as "severe hypertension with poor compliance."
Claimant received follow up treatments for hypertension and related
illnesses with Dr. Bryant on February 2, 1996, February 8, 1996, March 5,
1996, May 29, 1996, and February 25, 1997. On January 13, 1998 the
doctor diagnosed severe hypertension. Dr. Bryant also had a "[l]engthy
discussion with [claimant] on the importance of compliance with
[medications], diet and exercise."
Claimant testified that prior to his January 13, 1998
appointment with Dr. Bryant, he never received a diagnosis or information
from any source, including Dr. Bryant, that he was suffering from
hypertension. Claimant testified he did not understand he was
suffering from hypertension until January 1998, when Dr. Bryant allegedly
told him that his hypertension was caused by his work at the fire
department and that claimant needed to retire. Claimant had been president
of his local union. He worked with the International Association of
Firefighters and the Virginia Professional Firefighters developing
legislation on presumptive occupational disease claims. Claimant
testified he was aware, prior to January 1998, that he was afforded
special workers' compensation coverage for the disease of hypertension.
Claimant acknowledged he had known for at least fifteen years that
hypertension "is a condition that's covered under the presumption under
Workers' [Compensation Act] that you as a firefighter would be entitled
to." Claimant testified that if a doctor had diagnosed him with
hypertension prior to January 1998, he would have filed his claim earlier.
Code Sec. 65.2-406(A) states, in part:
The right to compensation under this chapter shall be forever barred
unless a claim is filed with the commission within one of the following
time periods:
* * *
* * *
*
5. For all other occupational diseases [including hypertension], two
years after a diagnosis of the disease is first communicated to the
employee or within five years from the date of the last injurious exposure
in employment, whichever first occurs.
This filing requirement is jurisdictional. Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 401, 374 S.E.2d 695, 696
(1988); Musick v. Codell Constr. Co., 4 Va. App. 471, 473, 358
S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co.,
214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "Moreover, the burden
is upon the claimant to prove compliance with the statute." Hawks,
7 Va. App. at 401, 374 S.E.2d at 697.
"Whether a diagnosis of an occupational disease was
communicated and when the communication occurred are factual
determinations to be made by the commission upon the evidence. Upon
appellate review, the findings of fact made by the commission will be
upheld when supported by credible evidence."
Uninsured
Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484 S.E.2d
140, 144 (1997) (citations omitted), aff'd on other grounds, 255 Va. 254,
497 S.E.2d 464 (1998). See also A. G. Van Metre, Jr., Inc. v.
Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198, 203 (1988).
Credible evidence supports the commission's finding that
claimant was diagnosed with hypertension as early as 1995. See
Dan River,
Inc. v. Giggetts, 34 Va. App. 297, 302, 541 S.E.2d 294, 296
(2001). Claimant's own testimony proved he knew "hypertension was high
blood pressure." Even if he did not, "a physician is not required to
utilize precise medical terminology to communicate the existence of
occupational disease in order to trigger the obligation to file a claim."
Hawks, 7 Va. App. at 403, 374 S.E.2d at 697 (finding an employee
received communication of the occupational disease interstital fibrosis
when a doctor informed the employee that he had "scarring" of the lungs).
Claimant's medical records indicate Dr. Bryant repeatedly diagnosed
hypertension, prescribing medications and behavioral changes to bring the
condition under control.
Code Sec.
65.2-406(A)(5) requires communication of two distinct facts:
(1) a diagnosis of the disease; and (2) the disease is an
"occupational disease." Code Sec. 65.2-400 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."
A diagnosis of an occupational disease is not completely
communicated to an employee until he receives information indicating the
disease is "one 'arising out of and in the course of the employment.'"
Garrison v. Prince William County Bd. of Supervisors, 220 Va. 913,
917, 265 S.E.2d 687, 689 (1980) (citing Code Sec. 65.1-46, a previous
version of Code Sec. 65.2-400) (holding the statute of limitations
did not bar a claim filed in 1978, where the employee was told he had
hypertension in 1975, but he was not told hypertension arose out of and in
the course of his employment). The determinative issue here,
therefore, is whether the diagnosis of hypertension as an
"occupational disease" was communicated to claimant prior to October 21,
1997, two years before the filing of his claim.
No physician communicated to claimant that a nexus existed
between his hypertension and his job prior to the appointment with Dr.
Bryant in January 1998. However, this fact does not end our
inquiry. It must be determined when claimant was informed that
hypertension is an occupational disease.
Communication of an occupational disease need not come from a
medical doctor. In Ratliff v. Dominion Coal Co., 3 Va. App.
175, 179, 349 S.E.2d 147, 149 (1986), the Court held a letter from the
United States Department of Labor, informing a miner that he was disabled
under the Black Lung Benefits Act, constituted "a medical determination of
total disability due to pneumoconiosis" and triggered the running of the
Virginia statute of limitations for workers' compensation benefits.
The Court rejected Ratliff's argument "that the Department of Labor letter
was an administrative or legal determination, but not a 'medical
determination.'" Id. The Court further explained that Ratliff
knew or should have known after receiving the letter that, although the
letter referred to federal standards, "it was,
nevertheless, incumbent upon Ratliff to file a Virginia claim" of
disability due to pneumoconiosis within three years of receiving the
letter. Id. at 180, 349 S.E.2d at 149-50.
Alexandria v.
Cronin, 20 Va. App. 503, 458 S.E.2d 314 (1995), aff'd, 252 Va.
1, 471 S.E.2d 184 (1996) is dispositive of this case. In
Cronin, Cronin received a formal diagnosis of coronary heart disease
in October 1989 and soon thereafter filed with the city for
service-connected disability retirement from his job as a firefighter.
Id. at 505, 458 S.E.2d at 315. Cronin died on February 22,
1992, and his estate filed a claim for benefits with the commission.
Id. at 506, 458 S.E.2d at 315. The commission concluded
Cronin's estate was not barred by the limitation period because Cronin was
"not 'medically advised that his condition was causally related to his
work.'" Id. at 507, 458 S.E.2d at 316 (citing the
commission's decision).
In overturning the commission, the Court held: 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.
* * *
* * *
*
Neither the Court of Appeals nor the Supreme Court of Virginia has
interpreted Code Sec.
65.2-406(A)(5) as requiring a communication from a physician to
trigger the running of the limitations period. Code Sec.
65.2-406(A)(5) does not require that an employee receive from a
physician a communication that his disease 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). Id. at 508-09, 458 S.E.2d at
316-17. The Court concluded, "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." Id. at 510,
458 S.E.2d at 317.
As in Cronin, claimant here was not informed by a
doctor that his hypertension was work-related. However,
claimant had known for ten to fifteen years that hypertension is an
occupational disease which is presumptively compensable under Code Sec.
65.2-402(B). He had lobbied for legislation to enact that
presumption. He was aware, prior to his diagnosis, that his work as
a firefighter afforded him special workers' compensation coverage for
hypertension. Most significantly, claimant testified that if a
doctor had diagnosed him with hypertension prior to January 1998, he would
have filed his claim earlier, suggesting he knew such a diagnosis was an
occupational disease. This testimony also belies claimant's
contention that he only had a "general knowledge" of the compensability of
hypertension. Overall, claimant's testimony actually underscored the
fact that he did know hypertension was a presumptively compensable
occupational disease.
As in Cronin, claimant "receive[d] the
communication that such a disease is a compensable occupational disease
from someone other than a physician." 20 Va. App. at 508, 458 S.E.2d
at 316. He had this knowledge when the diagnosis was communicated to
him, as he had known hypertension was an occupational disease for at least
fifteen years prior to the diagnosis.
The evidence supports the commission's findings that a
diagnosis of an occupational disease was communicated to claimant as of
January 1995. Therefore, his October 1999 filing falls far outside
the two-year statute of limitations set forth in Code Sec.
65.2-406(A)(5). The source of the communication of
occupational disease is immaterial as long as claimant learned "that the
condition is an occupational disease for which compensation may be
awarded." Id. at 509, 458 S.E.2d at 317.
Kenneth R.
Owens v. York Co. Fire & Rescue, Record No. 1898-01-4 (May 28,
2002). WP
Version.
The commission did not err in denying claimant's
October 7, 1997 claim for benefits under Code Sec. 65.2-402(A), but did
err in denying his June 7, 2000 claim for benefits under Code Sec.
65.2-402(A). On October 30, 1995, Dr. Thomas L. Munzel diagnosed claimant,
who had worked as a firefighter with the James City County Fire Department
since June of 1976, as having "virtually reversible obstruction," which,
according to Dr. Munzel, was essentially a mild asthma variant of "adult
onset reversible obstructive airways disease." Claimant received treatment
from Dr. Munzel for his asthma from 1995 to 1999 but did not miss work or
have any work restrictions imposed on him during that period.
However, in early 2000, after working at a fire in December of 1999,
claimant's progressively worsening lung condition became disabling.
On February 7, 2000, Dr. Munzel, having diagnosed claimant's pulmonary
condition as irreversible chronic obstructive pulmonary disease and acute
exacerbation of his asthma, directed that claimant not return to work as
an active firefighter for at least two months. Dr. Munzel explained
that claimant was disabled from working as an active firefighter at the
time "due to his asthma," which was "clearly exacerbated by the fire
fighting." From that point on, claimant never returned to work in an
unrestricted capacity. In December of 2000, Dr. Munzel
testified claimant had "continued to be disabled due to his asthma" and
would never be able to actively fight fires again.
Based on the first diagnosis, claimant filed a claim for
benefits with the commission on November 14, 1995, for "virtually
reversible obstruction" disease with a date of communication of October
30, 1995. Although he sought no specific benefits, claimant filed
the claim to "have [it] on the record for [the] future." Claimant
withdrew the claim on May 2, 1996, but timely refiled it on October 7,
1997. In refiling the claim, claimant specifically indicated he had
"not missed any work at [that] time." Rather, he simply wanted to
have his claim "on [the] record for [the] future." On June 7, 2000,
claimant notified the commission that he sought payment of his medical
bills related to the virtually reversible obstructive disease communicated
to him by Dr. Munzel on October 30, 1995. On June 7, 2000, claimant filed
a second claim for benefits alleging "Chronic obstructive pulmonary
disease (COPD)/small airways disease/asthma" with a date of communication
of February 7, 2000. In filing that claim, claimant sought
disability and medical benefits for the period beginning February 7, 2000.
Code Sec. 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. Parris v. Appalachian
Power Co., 2 Va. App. 219, 225-26, 343 S.E.2d 455, 458-59 (1986)
(footnote omitted). "[I]f an employee receives a communication of a
diagnosis of an occupational disease, and does not act on that
communication prior to the
running of the statute of limitations, then he is barred from filing a
later claim based on a later diagnosis." Id. at 225, 343
S.E.2d at 458 (citing Anderson v. Clinchfield Coal Co., 214 Va.
674, 675, 204 S.E.2d 257, 258 (1974)). "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 Sec. 65.1-46 [now Code
Sec. 65.2-400], and if so, (2) whether that occupational disease is
compensable." Id. at 226, 343 S.E.2d at 459 (footnote omitted).
In this case, claimant acted appropriately upon receiving a
communication of a possible occupational disease from Dr. Munzel.
Once Dr. Munzel diagnosed him with virtually reversible obstruction on
October 30, 1995, claimant, after withdrawing an earlier claim, filed a
timely claim for virtually reversible obstruction with the commission on
October 7, 1997. Hence, it then became the commission's duty to
determine whether
the claimant's disease was an occupational disease, and if so, whether
that occupational disease was compensable. Code Sec. 65.2-402(A)
provides, in pertinent part: Respiratory diseases that cause . . . any
health condition or impairment of [volunteer or salaried] firefighters . .
. resulting in total or partial disability shall be presumed to be
occupational diseases, suffered in the line of duty, that are covered by
this title unless such presumption is overcome by a preponderance of
competent evidence to the contrary. Thus, in order to establish the
relevant prima facie case necessary to secure the benefit of the
presumption in Code Sec. 65.2-402(A), a claimant must prove his occupation
as a firefighter and his disability from a respiratory disease. See
City of Norfolk v. Lillard, 15 Va. App. 424, 427, 424 S.E.2d 243,
245 (1992). "Disability from a disease has been defined as the stage
when the disease prevents the employee from performing his work
efficiently." Salyer v. Clinchfield Coal Corp., 191 Va. 331,
338, 61 S.E.2d 16, 20 (1950). Here, claimant failed to establish that
the respiratory disease referenced in his October 7, 1997 claim rendered
him totally or partially disabled. Accordingly, the deputy
commissioner and the commission did not err in holding the presumption in
Code Sec. 65.2-402 had no application to claimant's October 7, 1997 claim
and in concluding claimant failed to prove that virtually reversible
obstruction was a compensable occupational disease.
However, claimant filed a claim for benefits on June 7,
2000, for "Chronic obstructive pulmonary disease (COPD)/small airways
disease/asthma," with a date of communication of February 7, 2000.
In that claim, claimant sought disability benefits commencing February 7,
2000. The commission ruled that claimant's June 7, 2000 claim was not a
separate claim and that the claimant sought "disability benefits beyond
the running of the statute of limitations for his lung condition, which
[was] not compensable."
In Parris v. Appalachian Power Co., 2 Va. App. 219,
226, 343 S.E.2d 455, 459 (1986) after examining four prior cases involving
multiple diagnoses of the "same" occupational disease, the Court of
Appeals set out the "rule of law" discerned from those cases, stating as
follows: "If the Commission determines that the claimant does not have
an occupational disease, or that his occupational disease is not
compensable, then the statute of limitations in regard to the first
communication of the diagnosis forming the basis of that claim has no
bearing on a subsequent diagnosis and a claim filed as a result of the
communication of that diagnosis." See Cook v. Clinchfield Coal Co.,
215 Va. 599, 212 S.E.2d 263 (1975). Here, claimant, after failing to prove
he had a compensable occupational disease based on his first diagnosis and
claim, received a second diagnosis and filed a timely second claim
pertaining to the same condition, which had since worsened and become
compensable. Thus, applying the same rationale set forth in
Parris to the instant case, we conclude the commission erred in
denying and dismissing claimant's June 7, 2000 claim and, in light of
employer's stipulation that it could not overcome the presumption in Code
Sec. 65.2-402 as to that claim, in holding that the disease upon which the
June 7, 2000 claim was based was not compensable. It matters not,
under Cook and Parris, that claimant's June 7, 2000 claim
was based, as the commission found, upon the same condition upon which
claimant's initial, denied claim was based. Once the commission
determined that claimant had failed to prove he had a compensable
occupational disease, with respect to his first claim, the claimant was
not barred from receiving an award on his June 7, 2000 claim based on the
diagnosis communicated to him on February 7, 2000.
Melvin H.
Tomes, Jr. v. James City County, Record No. 2450-01-4
(December 17, 2002).
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