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BASS v. CITY OF RICHMOND POLICE DEPT.


BASS, JR.

v.

CITY OF RICHMOND POLICE
DEPARTMENT


June 11, 1999

Record No. 980861

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. 982126

CITY OF HOPEWELL, ET AL.

v.

MICHAEL W. TIRPAK

FROM THE COURT OF APPEALS OF VIRGINIA

OPINION BY JUSTICE BARBARA MILANO KEENAN

 

 


We consolidated for argument three workers’ compensation
appeals from the Court of Appeals. All three cases present the
question whether the Workers’ Compensation Commission properly
concluded that the employers failed to present sufficient
evidence to overcome the occupational disease presumption
established in Code Sect. 65.2-402(B). The facts in the
three cases differ and will be described separately.

Code Sect. 65.2-402(B) of the Virginia Workers’
Compensation Act provides, in relevant part:

Hypertension or heart disease causing the death of, or
any health condition or impairment resulting in total or
partial disability of . . . (iii) members of
county, city or town police departments [and] (iv)
sheriffs and 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.

BASS v. CITY OF RICHMOND POLICE DEPARTMENT

In October 1994, Claude A. Bass, Jr., suffered a temporary
loss of vision in his left eye and was diagnosed with
atherosclerotic blockages of his left carotid and right iliac
arteries. He underwent surgery to correct these conditions and
was unable to work for about one month after the operation. At
the time, Bass was a police captain in the City of Richmond
Police Department (the employer), where he had worked since 1964.
He had been diagnosed with hypertension in the early 1970′s and
had taken medication for that condition since the mid-1980′s.

In April 1996, Bass filed a claim for workers’ compensation
benefits under Code Sect. 65.2-402(B), seeking temporary
total disability benefits for his hypertension and vascular
disease. At a hearing before a deputy commissioner, Bass
presented evidence from Dr. Nicolas P. Tulou, his treating
physician, who first stated that Bass’ employment "in large
measure" contributed to his hypertension and vascular
disease, but later testified that job stress was only a
"plausible" factor in the development of his condition.
Dr. Tulou also stated that several non-work-related "risk
factors" were present in Bass’ case, including a family
history of heart disease, a lengthy history of cigarette smoking,
high blood cholesterol levels, and excess weight.

Dr. Ronald K. Davis, a vascular surgeon who treated Bass,
stated that the probable causes of Bass’ condition were
"genetic and environmental," but that he could not
"rule out" occupational stress as a contributing
factor. Dr. Michael L. Hess, a cardiologist who reviewed Bass’
medical records at the request of the employer, stated that
"it was extremely difficult to incriminate" job stress
as the cause of Bass’ condition.

The deputy commissioner awarded Bass compensation benefits,
and the Commission affirmed the award, noting that Bass presented
medical evidence that occupational stress "played some
part" in the development of his condition, and that there
was "no medical evidence to the contrary." The
Commission agreed with the deputy commissioner’s conclusion
"that, on a somewhat conflicting record, the claimant’s
evidence was sufficient to bring him within the purview of the
presumption."

In a published opinion, the Court of Appeals reversed the
Commission’s award of benefits and dismissed Bass’ claim. City
of Richmond Police Dept. v. Bass
, 26 Va. App. 121, 493 S.E.2d
661 (1997). The Court noted that two physicians attributed Bass’
condition to a genetic cause. Id. at 134, 493 S.E.2d at
667. The Court stated that, "[u]nder the standard set forth
in [Augusta County Sheriff's Dept. v. Overbey, 254 Va.
522, 492 S.E.2d 631 (1997)], this evidence of a genetic cause
sufficiently rebutted the statutory presumption that claimant’s
heart disease is work-related." Bass, 26 Va. App. at
134, 493 S.E.2d at 667. The Court held that Bass failed to prove
by clear and convincing evidence, under Code Sect. 65.2-401,
that his disease arose out of and in the course of his
employment. Id. at 135, 493 S.E.2d at 667.

PATTON v. LOUDOUN COUNTY BOARD OF
SUPERVISORS

In July 1994, John B. Patton, Jr., suffered a myocardial
infarction, or "heart attack," and underwent emergency
cardiac catheterization and angioplasty. The symptoms of the
heart attack began while Patton was working on the patrol
division evening shift in the Loudoun County Sheriff’s Department
(the employer), where he had been employed for about 14 years.
Patton later had a recurrence of chest pain and, as a result, had
coronary artery bypass surgery.

Patton later filed a workers’ compensation claim seeking
temporary total disability benefits for his heart disease. At a
hearing before a deputy commissioner, Patton introduced evidence
from Dr. Carey M. Marder, his treating cardiologist. Dr. Marder
noted that Patton had "multiple cardiovascular risk
factors," including a past history of cigarette smoking, a
history of adult onset diabetes, hypertension, a positive family
history for heart disease, and high cholesterol levels in his
blood. Dr. Marder stated that it was difficult to say how much of
Patton’s coronary artery disease was related to the stress of his
employment, because "[s]tress as an independent risk factor
is very difficult to quantitate."

Dr. Richard A. Schwartz stated that occupational stress,
hypertension, a history of cigarette smoking, and possibly
diabetes, were identifiable factors causing Patton’s heart
disease. Dr. Schwartz explained that coronary artery disease is a
"multifactorial process" and that none of the above
factors could be specifically implicated or excluded.

The employer presented the opinion of Dr. Stuart F. Seides, a
cardiologist, who stated that although Patton experienced the
onset of his heart attack while on duty as a police officer,
"it is highly likely that [the heart attack] would have
occurred in or around the same time frame regardless of his
activities." Dr. Seides stated that the presence of
atherosclerosis is the most important factor in the development
of a myocardial infarction, and that the "relationship of
occupation to the development of atherosclerosis is virtually
nil."

The deputy commissioner awarded benefits to Patton. The
Commission affirmed the award, holding that the employer had not
excluded work-related stress as a contributing cause of the
claimant’s heart disease. The Commission noted that both Dr.
Marder and Dr. Schwartz concluded that "occupational stress
was one of the [causative] factors in the claimant’s heart
disease."

While the employer’s appeal of the Commission’s decision was
pending in the Court of Appeals, this Court decided the Overbey
case. Patton then filed a petition asking the Court of Appeals to
remand the entire case to the Commission for reconsideration
"under the Overbey standard." Citing Overbey,
the Court of Appeals held in an unpublished order that "the
evidence of claimant’s risk factors and the medical opinions
offered constituted ‘competent medical evidence of a
non-work-related cause’ sufficient to rebut the
presumption." Board of Supervisors v. Patton, Record
No. 2015-97-4 (Feb. 6, 1998). However, since the Court was unable
to determine whether Patton had proved "by clear and
convincing evidence that his heart disease arose out of and in
the course of his employment," the Court remanded the case
to the Commission to make specific findings regarding the
credibility of conflicting medical evidence. Id.

CITY OF HOPEWELL v. MICHAEL W. TIRPAK

In February 1995, Michael W. Tirpak had a "stress
test" as part of a routine physical examination scheduled by
his employer, the City of Hopewell Police Department (the
employer). During the test, Tirpak experienced a burning
sensation in his chest and shortness of breath, and an
electrocardiogram revealed some coronary abnormalities. A cardiac
catheterization showed blockages in three of his coronary
arteries. As a result, Tirpak had coronary artery bypass surgery.
At the time of surgery, Tirpak was a supervising sergeant of the
evening patrol shift for the City of Hopewell Police Department,
where he had been employed since 1973.

Tirpak filed a claim for temporary total disability benefits
based on his heart disease. At a hearing before a deputy
commissioner, Tirpak presented evidence from his treating
cardiologist, Dr. Ashok Kumar, who stated that Tirpak had a
30-year history of smoking cigarettes, and that he had a family
history of premature coronary artery disease. Dr. Kumar also
stated that he could not exclude job-related stress as a cause of
Tirpak’s heart disease. Dr. J. James Zocco, the cardiac surgeon
who performed Tirpak’s surgery, stated that work-related stress
could not be excluded as a contributing factor in Tirpak’s heart
disease. Dr. Zocco also stated that Tirpak had other coronary
risk factors, including a family history of heart disease, a
30-year history of smoking cigarettes, hypertension, and elevated
blood cholesterol levels.

The employer presented evidence from Dr. Stuart F. Seides, a
cardiologist who reviewed Tirpak’s medical records. Noting
Tirpak’s several "risk factors," Dr. Seides stated that
Tirpak’s employment had "nothing whatsoever" to do with
his coronary artery disease. The employer also presented evidence
from Dr. Jack Freund, a specialist in internal medicine who
reviewed Tirpak’s medical records. Dr. Freund stated that, based
on Tirpak’s non-work-related "risk factors" for
coronary artery disease, Tirpak’s heart disease and heart attack
"would have occurred no matter what type of employment he
was engaged in."

The deputy commissioner awarded Tirpak benefits, and the
Commission affirmed the award, stating that it gave greater
weight to the opinion of the treating physicians, who had stated
that they could not exclude employment-related stress as one of
the contributing factors. The Commission stated that "[t]he
employer fails to rebut the [statutory] presumption where a work
related factor such as occupational stress is not excluded."

On appeal, the Court of Appeals held that the Commission’s
language "indicated" that it had applied an incorrect
standard, which required the employer to exclude the possibility
of a work-related cause of Tirpak’s disease without regard to
whether he had presented evidence of such a causal link. City
of Hopewell v. Tirpak
, 28 Va. App. 100, 111-12, 502 S.E.2d
161, 166-67 (1998). The Court vacated the award of benefits and
remanded the case to the Commission for further proceedings on
the issue whether the employer had overcome the statutory
presumption. Id. at 129, 502 S.E.2d at 175.

APPLICATION OF THE STATUTORY PRESUMPTION

In Code Sect. 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), we 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. We 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.

We 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
Sect. 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, we 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), we 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. We
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 Overbey, the employer acknowledged the applicability
of the two-part test by conceding that, to overcome the statutory
presumption of Code Sect. 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, we 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 our holding that, to overcome the statutory
presumption of Code Sect. 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.
However, because that quotation did not discuss both parts of the
two-part test applied in Page and our other decisions,
some confusion has resulted regarding the viability of both parts
of that test. To clarify this matter, we reaffirm the two-part
test employed in Page and our other decisions cited above
concerning the elements of proof necessary to overcome the
statutory presumption of Code Sect. 65.2-402(B).

The claimant in Overbey relied on the statutory
presumption of Code Sect. 65.2-402(B) and did not present
any medical evidence. The employer presented medical evidence
showing that 1) the claimant’s job was not a cause of his heart
disease, and 2) the disease was caused by several "risk
factors," including a history of heavy cigarette smoking,
elevated cholesterol, a family history of heart disease, and
diabetes mellitus. Id. at 525, 492 S.E.2d at 633. Thus,
our holding in Overbey effectively applied the two-part
test used in Page, while rejecting the claimant’s attempt
to add another requirement to the employer’s statutory burden for
overcoming the presumption established by Code
Sect. 65.2-402(B).

ASSESSMENT OF EVIDENCE UNDER CODE
Sect. 65.2-402(B)

Under the statutory language, the employer may overcome the
presumption by producing "a preponderance of competent
evidence to the contrary." Code Sect. 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 Newman,
222 Va. at 539, 281 S.E.2d at 899-900; Page, 218 Va. at
847-48, 241 S.E.2d at 777. 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.

The determination whether the employer has met this burden is
made by the Commission after exercising its role as finder of
fact. In this role, the Commission resolves all conflicts in the
evidence and determines the weight to be accorded the various
evidentiary submissions. "The award of the Commission
. . . shall be conclusive and binding as to all
questions of fact." Code Sect. 65.2-706(A); Falls
Church Constr. Co. v. Laidler
, 254 Va. 474, 478-79, 493
S.E.2d 521, 524 (1997); Ivey v. Puckett Constr. Co., 230
Va. 486, 488, 338 S.E.2d 640, 641 (1986).

In providing that the statutory presumption may be overcome by
a preponderance of the evidence to the contrary, Code
Sect. 65.2-402(B) implicitly directs the Commission as
finder of fact to consider all evidence on the issue of causation
presented by the claimant, as well as by the employer. When the
Commission determines that the employer has failed to overcome
the statutory presumption, the claimant is entitled to an award
of benefits under the Act. See Code Sects. 65.2-400
to -407.

On appeal from this determination, the reviewing court must
assess whether there is credible evidence to support the
Commission’s award. Celanese Fibers Co. v. Johnson, 229
Va. 117, 121, 326 S.E.2d 687, 690 (1985); Hercules, Inc. v.
Gunther
, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991).
Thus, unlike the Commission, the reviewing court is not charged
with determining anew whether the employer’s evidence of
causation should be accorded sufficient weight to constitute a
preponderance of the evidence on that issue. See Celanese
Fibers Co.
, 229 Va. at 121, 326 S.E.2d at 690; Caskey v.
Dan River Mills, Inc.
, 225 Va. 405, 411, 302 S.E.2d 507,
510-11 (1983); Macica v. ARA Servs. Tidewater Vending, 26
Va. App. 36, 41, 492 S.E.2d 843, 846 (1997); Shawnee
Management Corp. v. Hamilton
, 25 Va. App. 672, 679, 492
S.E.2d 456, 459 (1997).

BASS v. CITY OF RICHMOND POLICE DEPARTMENT

PATTON v. LOUDOUN COUNTY BOARD OF
SUPERVISORS

Based on the foregoing discussion, we disagree with the
employers’ assertion that, since undisputed evidence showed there
were non-work-related causes of both claimants’ heart disease,
this evidence was sufficient as a matter of law to overcome the
statutory presumption. As we have stated, 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. See Newman, 222 Va. at 539,
281 S.E.2d at 899-900; Page, 218 Va. at 847-48, 241 S.E.2d
at 777. Thus, we conclude that the evidence of non-work-related
causes of Bass’ and Patton’s heart disease, standing alone, did
not overcome the statutory presumption, because that evidence
satisfied only one part of the two-part test.

We disagree, however, with the claimants’ assertions that the
records in their cases permit us to enter final judgment
reinstating the Commission’s awards. In both cases, the
Commission failed to address the applicable two-part test and
state whether the employer had met its statutory burden to
overcome the presumption of Code Sect. 65.2-402(B) by a
preponderance of the evidence. Therefore, we will reverse both
judgments of the Court of Appeals, vacate the Commission’s
awards, and remand the cases to the Court of Appeals for remand
to the Commission to reconsider the evidence presented in
accordance with the principles expressed in this opinion.

CITY OF HOPEWELL v. TIRPAK

The employer first contends that the Court of Appeals erred in
upholding the Commission’s determination that the claimant’s
evidence established a communication of occupational disease on
February 17, 1995. We disagree with this contention, because the
Commission’s factual findings are binding on appeal. See
Code Sect. 65.2-706(A); Falls Church Constr. Co. v.
Laidler
, 254 Va. at 478-79, 493 S.E.2d at 524; Ivey v.
Puckett Constr. Co.
, 230 Va. at 488, 338 S.E.2d at 641. Here,
the Commission relied on the claimant’s testimony that Dr. Kumar
told him on that date that his heart disease was caused by
"stress on the job." Since the Commission accepted the
claimant’s testimony on this issue, we conclude that the Court of
Appeals properly refused to disturb the Commission’s factual
finding on appeal.

The employer next asserts that the Court of Appeals
"ignored the concession by Tirpak that Hopewell had rebutted
the heart disease presumption." We disagree with the
employer’s argument, because the record shows that Tirpak
conceded only that "non-work-related causes [of his disease] were adduced by the employer." He made no further
concession, but merely addressed the proper outcome of the case
in the event the Court of Appeals concluded that the employer had
overcome the presumption.

Next, we disagree with the employer’s argument that it would
be denied due process if the statutory presumption is upheld in
the face of credible evidence of non-work-related causes of the
claimant’s disease. In Newman, we stated that, by
establishing the statutory presumption, the legislature made a
public policy judgment allocating to the employer a burden of
proof that carried the ultimate risk of non-persuasion. 222 Va.
at 541, 281 S.E.2d at 901. We explained that the legislature’s
decision "to cast that burden upon the employer infringes no
constitutional right," because the employer may introduce
evidence to overcome the statutory presumption. Id. Thus,
the employer’s right of due process is not violated by requiring
it to produce a preponderance of the evidence in accordance with
the two-part test set forth above.

We also find no merit in the employer’s central contention in
this appeal, that the employer met the burden of proof set forth
in Overbey to overcome the statutory presumption by
proving a non-work-related cause of Tirpak’s disease. As stated
above, proof by a preponderance of the evidence of a
non-work-related cause of a claimant’s disease satisfies only one
part of the two-part test applied in Overbey and several
of our earlier decisions. To overcome the statutory presumption,
the employer must also establish by a preponderance of the
evidence that the claimant’s disease was not caused by his
employment. See Newman, 222 Va. at 539, 281 S.E.2d
at 899-900; Page, 218 Va. at 847-48, 241 S.E.2d at 777.

Although we disagree with the Court of Appeals’
characterization of the Commission’s decision, we observe that
the Commission did not state whether the employer met the
required two-part test in accordance with its statutory burden of
producing a preponderance of the evidence to overcome the
presumption. Therefore, on remand, the Commission will be
required to reconsider the evidence under that standard.

Finally, we note that we have considered the remaining
assignments of error raised by the employer. We conclude that
they do not require discussion because they are resolved by our
earlier analysis in this opinion, are beyond the scope of the
judgment appealed from, or are without merit.

For these reasons, we will affirm that part of the Court of
Appeals’ judgment addressing the issues of subject matter
jurisdiction,* due process, date of communication of
occupational disease, and the absence of a concession by Tirpak
regarding the statutory presumption. We will vacate the balance
of the Court of Appeals’ judgment, vacate the Commission’s award
of benefits to Tirpak, and remand the case to the Court of
Appeals for remand to the Commission to reconsider the evidence
presented in accordance with the principles expressed in this
opinion.

Record No. 980612 Reversed and remanded.

Record No. 980861 Reversed and remanded.

Record No. 982126 Affirmed in part, vacated in part, and
remanded.

*In its brief filed in this case, the employer
withdrew its assignment of error challenging the Commission’s
subject matter jurisdiction.

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