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AUGUSTA COUNTY SHERIFF'S DEPT., ET AL. v. OVERBEY


AUGUSTA COUNTY SHERIFF’S
DEPARTMENT, ET AL.

v.

OVERBEY


October 31, 1997

Record No. 962561

AUGUSTA COUNTY SHERIFF’S DEPARTMENT, ET AL.

v.

PATRICK L. OVERBEY

OPINION BY SENIOR JUSTICE HENRY H. WHITING

FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton, Lacy, Hassell, and Kinser,
JJ., and Stephenson and Whiting, Senior Justices


In an employer’s appeal of a workers’ compensation claim, we
consider a provision in Code ? 65.2-402(B) which creates a
presumption that a deputy sheriff’s heart disease was an
occupational disease suffered in the line of duty "unless
such presumption is overcome by a preponderance of competent
evidence to the contrary." [1]

While on duty and talking to another deputy sheriff, Deputy
Sheriff Patrick Lindy Overbey sustained sharp chest pains for a
period of 9 or 10 minutes on the morning of January 31, 1995.
Later that day, acting as a deputy sheriff-security guard at a
local high school basketball game, Overbey again suffered chest
pains which his attending physician, Dr. David B. Chernoff,
diagnosed as a myocardial infarction or "heart attack."

Following a period of hospitalization and recovery, Overbey
filed a claim for workers’ compensation against his employer, the
Augusta County Sheriff’s Department, and its insurer, the
Virginia Municipal Group Self-Insurance Association
(collectively, the employer). Asserting that Overbey’s disability
was not the result of an occupational disease suffered in the
line of his duties as a deputy sheriff, the employer denied
liability.

After a hearing, a deputy commissioner of the Workers’
Compensation Commission dismissed the claim on the ground that
the evidence was sufficient to overcome the Code
? 65.2-402(B) presumption that Overbey’s heart disease was
a result of work-related causes. On Overbey’s appeal, the
Workers’ Compensation Commission disagreed with the deputy
commissioner and awarded benefits. On the employer’s appeal, the
Court of Appeals affirmed the Commission’s decision. Concluding
that this case involves matters of significant precedential
value, we awarded an appeal to the employer. Code
? 17-116.07(B).

Prior to the hearing before the deputy commissioner, the
employer took the deposition of Dr. Chernoff. According to Dr.
Chernoff, although there was no "single etiologic
cause" for Overbey’s heart attack, there were several
"risk factors" which he thought caused the attack. Dr.
Chernoff listed the following risk factors: (1) a history of
heavy smoking (according to Overbey, he had smoked from two to
two-and-a-half packs of cigarettes each day from age 19 until he
had his heart attack at the age of 41); (2) elevated cholesterol;
(3) a family history of heart trouble (Overbey’s father had a
heart attack while "in his 50′s"); and (4)
non-insulin-dependent diabetes mellitus coupled with a strong
family history of diabetes.

Although Dr. Chernoff did not ask Overbey about his specific
job duties, Dr. Chernoff had previously treated "a few"
law enforcement officers in the Staunton area and "a number
of Security Police" while he was a physician in the United
States Air Force. Dr. Chernoff testified that, in his opinion,
Overbey’s employment was not a risk factor or a cause of his
heart disease. However, on cross-examination, Dr. Chernoff
indicated that it was "possible" that
"stress" may have contributed to cause Overbey’s heart
attack.

Overbey testified about the stressful incidents in his job. In
his regular duties as a civil process server, he had many papers
to serve in a limited time, occasionally upon people who were
uncooperative. Overbey also testified that while serving papers,
he encountered dogs "two or three times a week." He
responded to domestic violence calls "[a]bout once a
week," house or bank burglar alarms on an "average of
two or three a week," and "on occasions," he
"worked accidents." When he could "feel" his
heart racing while driving a car at work, he would "just
pull off the side of the road and just wind down."

Approximately three weeks before Overbey’s heart attack, his
wife was suspended from her job, and a few days later she was
charged with embezzlement and forgery. About a week before his
heart attack, Overbey and his wife separated. Overbey testified
that his state of mind was "easier" after the
separation. However, when Dr. Chernoff was treating Overbey’s
heart disease, Overbey’s description of his wife’s legal problems
caused Dr. Chernoff to describe them as the "main
stressor." No physician contradicted Dr. Chernoff’s
testimony listing the non-job-related risk factors which he
thought contributed to cause Overbey’s heart disease.

To recover compensation for heart disease, a workers’
compensation claimant must ordinarily establish, among other
things, that the illness is an "occupational disease
. . . by clear and convincing evidence, to a reasonable
medical certainty, [and] that it arose out of and in the course
of employment." Code ? 65.2-401.[2] However, in the case of
certain law enforcement officials, including deputy sheriffs,
Code ? 65.2-402(B) creates a presumption that their heart
diseases are occupationally related, "unless such
presumption is overcome by a preponderance of competent evidence
to the contrary."

The employer concedes that the presumption in Code
? 65.2-402(B) requires it to establish a non-work-related
cause for Overbey’s heart condition and that job stress was not
the cause. Overbey contends that this presumption also imposes
the burden upon the employer of producing a preponderance of
evidence excluding the possibility that his heart disease
was work related. The employer responds that Overbey’s contention
adds an additional burden upon it that is neither stated nor
implied in the statute.

We agree with the employer. In Page v. City of Richmond,
218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978), this Court noted
that in rebutting the presumption that heart disease is work
related, the employer must adduce competent medical evidence of a
non-work-related cause.

Overbey suggests that in County of Amherst v. Brockman,
224 Va. 391, 399, 297 S.E.2d 805, 810 (1982), we established an
obligation that the employer "exclude" the
"possibility" of job-related causes. We disagree. In Brockman,
our statement about the employer’s failure to "exclude
stress as a possible ‘contributing cause’" was made in the
context of our affirmance of the Commission’s award of
compensation based upon conflicting medical evidence. In Brockman,
not only had the employer failed to exclude job-related stress as
a cause, but its medical evidence of a non-job-related cause of
heart attacks was contradicted by other medical evidence
"adopted" by the deputy commissioner and the full
Workers’ Compensation Commission on review. Id., 297
S.E.2d at 809. Here, there was no medical evidence other than
that presented by the employer.

Our decisions subsequent to Brockman have applied the
basic standard noted in Page with no suggestion that the
employer’s proof must exclude the possibility of all job-related
causation hypotheses. Thus, in Doss v. Fairfax County Fire
& Rescue Department
, 229 Va. 440, 442, 331 S.E.2d 795,
796 (1985), the Court simply applied the conclusion stated in Page
that in order to overcome the statutory presumption, the employer
merely "must adduce competent medical evidence of a
non-work-related cause of the disabling disease." That
burden has been met upon submission of competent medical evidence
that the claimant’s condition was more than likely a hereditary
phenomenon, id., or a showing that the claimant’s heart
condition was "generally thought to be congenital" or
was "probably" congenital. Cook v. City of
Waynesboro Police Department
, 225 Va. 23, 28-30, 300 S.E.2d
746, 748-49 (1983). Thus, 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.

Because we conclude that the employer introduced sufficient
evidence to rebut the presumption, Overbey had the burden of
"establishing by clear and convincing evidence, to a
reasonable medical certainty," that his heart disease arose
out of and in the course of his employment. See Code
? 65.2-401. As noted, no medical expert contradicted Dr.
Chernoff’s opinion. Hence, Overbey’s description of his work
stresses was, as a matter of law, insufficient to establish
"to a reasonable medical certainty" that his heart
disease arose out of his employment. For these reasons, we reject
Overbey’s contention that his claim for compensation was properly
awarded under the "two causes rule." That rule applies
when the evidence shows that an employee’s "’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)).
Here, as we have said, the employer has met the burden of
overcoming the statutory presumption and Overbey has not shown
that his heart disease arose out of his employment. Thus, he has
not shown that there was a cause "related to the
employment," an essential component of the "two causes
rule."

Accordingly, we will reverse the judgment of the Court of
Appeals and dismiss the claimant’s application for benefits.

Reversed and dismissed.

 

 

FOOTNOTES:

[1] Code ? 65.2-402(B)
provides in pertinent part:

 

Hypertension or heart disease causing . . .
any health condition or impairment resulting in total or
partial disability of . . . [certain law
enforcement officers including] 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.

[2]
In 1997, Code ? 65.2-401 was amended to delete "to a
reasonable medical certainty," and to add "(not a mere
probability)."

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