Virginia Lawyers Weekly VA Lawyers Weekly
A retired firefighter diagnosed with throat cancer – an occupational disease – was not a “disabled person” prevented from the further performance of his duties and, thus, was not entitled to continuing health insurance coverage.
Background
Plaintiff Eddie R. Jones Sr. was employed with the City of Hampton as a firefighter from October 5, 1977 to August 1, 2010, the date on which he retired based on years of service.
Jones was diagnosed with throat cancer on March 11, 2011. His treating physicians, Dr. Mattern opined that Jones was incapacitated from further performance of duty as of November 6, 2013. Jones testified that he did not experience any health problems while he worked as a firefighter and that he “never had any issues with the physicals” that were administered each year. He explained that he chose to retire because the City “offered a 20 percent buyout.”
Around October 2010, Jones began experiencing a problem with his ear. He visited a specialist who discovered that he had a cyst in his “nasal area.” After a biopsy, Jones was diagnosed with throat cancer on March 11, 2011. Dr. Mattern stated that Jones became unable to work as of the date of his diagnosis and that, although the cancer was in remission after treatment, “[t]here is no way that [Jones] can safely work in any polluted atmosphere (fumes or smoke) as this would trigger significant respiratory distress and airway compromise.” He advised that Jones “should be considered disabled on the basis of a very bad cancer” that could “recur at any time,” and “the toxicities of treatment have been such that [Jones] … is at risk for developing significant respiratory distress if exposed to any kinds of fumes or smoke.”
The Virginia Office of the Comptroller denied Jones health insurance coverage that he sought under the Virginia Line of Duty Death and Disability Act, and the circuit court affirmed the Comptroller’s decision. Jones appeals.
“Disabled person”
The Act, at Code § 9.1-400(B), defines a “disabled person” as any individual who, as the direct or proximate result of the performance of his duty … has become mentally or physically incapacitated so as to prevent the further performance of duty where such incapacity is likely to become permanent. The court concludes that Jones’s throat cancer, though an occupational disease, did not prevent him from “further performance of duty” as a firefighter.
The phrase “further performance of duty” is not defined within the Act. The plain meaning of “further” is “going or extending beyond what exists: additional.” “Performance” is “the act or process of carrying out something” or “the fulfillment of a claim, promise, or request.” Thus, “further performance of duty” concerns additional acts in fulfillment of an ongoing duty that extends beyond the promise or duty already completed. The court concludes that, in the context of § 9.1- 400(B), the plain meaning of “further performance of duty” requires that the disability must occur while an individual is still carrying out obligations in the line of duty, in order for that person to be a “disabled person” under the Act.
In this case, the obligations would be those of a firefighter. Thus, to receive insurance benefits under the Act, Jones must have become incapacitated while he was continuing to carry out his duties as a firefighter.
Jones has been awarded benefits under the Workers’ Compensation Act for his throat cancer. However, this occupational disease did not result in a disability while Jones was still carrying out his duties as a firefighter. Therefore, he is not entitled to insurance benefits under Code § 9.1-401(B).
Contrary to Jones’s argument, he cannot benefit from the five-year look-back provision in Code § 65.2-406. Neither Code § 9.1-400(B) nor § 9.1-401(B) contain a look-back provision. Notably, Code § 9.1-402(C), which provides benefits under the Act for the beneficiaries of individuals who die as the result of an occupational disease, expressly includes a five-year look-back provision. Thus, the court presumes the omission of a look-back provision in Code § 9.1-401(B) to be intentional.
Because Jones was retired when he was determined to be “physically incapacitated,” his incapacity did not prevent the “further performance” of his duties as a firefighter, because he no longer had firefighting duties to perform. Accordingly, Jones is not a “disabled person” under the Act and is thus not “entitled to continued health insurance coverage” under Code § 9.1-401(B).
Affirmed.
Jones v. Commonwealth, Record No. 170639, June 7, 2018. SCV (Goodwyn), from Hampton Cir. Ct. (Hutton). VLW No. 018-6-044, 8 pp.
