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ALLEN v. CITY OF NORFOLK POLICE DEPARTMENT, et al.


ALLEN v. CITY OF NORFOLK
POLICE DEPARTMENT, et al.

(unpublished)


AUGUST 26, 1997
Record No. 0897-97-1

MARK S. ALLEN

v.

CITY OF NORFOLK POLICE DEPARTMENT AND
CITY OF NORFOLK, TRIGON ADMINISTRATORS, INC.

Present: Judges Bray, Annunziata and Overton

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Karen M. Rye, on brief), for appellant.

(Philip R. Trapani, City Attorney; AndrJ A. Foreman, Deputy City
Attorney, on brief), for appellees.


Mark S. Allen (claimant) contends that the Workers’
Compensation Commission (commission) erred in finding that he was
not entitled to the benefit of the presumption contained in Code ? 65.2-402(B). Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission’s decision. Rule 5A:27.

Code ? 65.2-402(B)
provides that "hypertension or heart
disease . . . resulting in total or partial
disability of [a city police officer] . . . 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." This presumption applies only if
persons entitled to invoke [it] have . . .
undergone preemployment physical examinations that (i) were
conducted prior to the making of any claims under this title that
rely on [this] presumption[ ], (ii) were performed by physicians
whose qualifications are as prescribed by the [employer], (iii)
included such appropriate laboratory and other diagnostic studies
as the [employer] may have prescribed, and (iv) found such
persons free of . . . hypertension . . .
or heart disease at the time of such examinations.

Code ? 65.2-402(D).

On appeal, we view the evidence in the light most favorable to
the prevailing party below. See R.G. Moore Bldg. Corp.
v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

So viewed, the evidence established that in 1978, claimant
underwent a preemployment physical examination before beginning
employment with the City of Norfolk Police Department ("the
police department"). Dr. T. E. Smith of the Norfolk Public
Health Department performed the examination. On November 28 and
30, and December 1, 1978, claimant’s blood pressure was measured
in sitting, standing, and lying positions. On December 15, 1978,
Dr. H. S. Wise noted that in all positions claimant’s blood
pressure was "persistently hypertensive." Dr. Wise
referred claimant to a cardiologist. Dr. Wise concluded that
based upon the preemployment examination, claimant had
"evidence of persistent diastolic hypertension, ranging from
moderate to slight, and occasionally [had] systolic hypertension
of a mild to moderate degree . . . ."

On February 12, 1996, claimant suffered a silent inferior
myocardial infarction and a left ventricle aneurysm. Following
claimant’s heart attack, Dr. Thomas Klevan, claimant’s
cardiologist, reported that claimant had a history of
hypertension. In responding to an August 26, 1996 letter from
claimant’s counsel, Dr. Klevan opined that claimant had
substantial exposure outside of his employment to risk factors,
including hypertension, elevated cholesterol, and a family
history of heart disease. These factors contributed to the
development of claimant’s heart disease. Dr. Klevan could not
eliminate any of these risk factors from being a primary cause of
claimant’s heart attack.

In denying claimant’s application, the commission found that
the presumption did not apply because the medical records
revealed that claimant suffered from hypertension prior to his
employment by the police department and that claimant’s
hypertension contributed to the development of his heart disease,
which ultimately resulted in his heart attack on February 12,
1996. Unless we can say as a matter of law that claimant’s
evidence proved that he was free of hypertension prior to his
employment by the police department, the commission’s findings
are binding and conclusive upon us. See Tomko v.
Michael’s Plastering Co.
, 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).

The results of the preemployment examination performed by Dr.
Smith, a qualified physician, and the conclusions drawn from that
examination by Dr. Wise, support the commission’s finding that
claimant was not free of hypertension prior to his employment by
the police department. In addition, Dr. Klevan’s opinion
established that claimant’s hypertension contributed to the
development of his heart disease. Accordingly, we cannot say as a
matter of law that claimant met his burden of proving he was
entitled to the benefit of the presumption contained in Code ? 65.2-402(B).

For these reasons, we affirm the commission’s decision.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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