Augusta Co. Sheriff's Dept v. Patrick Overbey

• Court: Court of Appeals of Virginia
• Decided: November 26, 1996
• Docket: 1114963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

AUGUSTA COUNTY SHERIFF'S DEPARTMENT AND VML INSURANCE PROGRAMS MEMORANDUM OPINION * PER CURIAM v. Record No. 1114-96-3 NOVEMBER 26, 1996

PATRICK L. OVERBEY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Frank K. Friedman; Elizabeth K. Dillon; Woods, Rogers & Hazlegrove, on briefs), for appellants.

(Thomas W. Dixon, Jr.; Nelson, McPherson, Summers & Santos, on brief), for appellee.

Augusta County Sheriff's Department and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission erred in finding that

(1) employer's evidence did not rebut the statutory presumption

that Patrick L. Overbey's heart disease was work-related; (2) to

rebut the statutory presumption employer's evidence must exclude

work-related stress as a contributing factor in the development

of Overbey's heart disease; and (3) the "two causes" rule applied

to Overbey's claim. 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.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Overbey worked for employer for eight years as a deputy

sheriff. During his employment, Overbey worked primarily as a

civil process server. Overbey served approximately thirty to

thirty-five papers per day. In addition to his civil process

server duties, Overbey occasionally responded to emergency alarm

calls and domestic violence calls.

Overbey's testimony established that in the course of his

job he suffered from an increased level of stress, which caused

physical symptoms such as a rapid heartbeat, an adrenaline rush,

and exhaustion. Overbey attributed this high level of stress to

the volume of his work, the difficulty he experienced in trying

to locate people, and the dogs he encountered two to three times

per week. During the morning of January 31, 1995, Overbey felt chest

pains while at work. Later that evening, while working as a

security officer at a high school basketball game, Overbey again

felt chest pains. He was taken to the hospital and diagnosed as

having suffered a myocardial infarction.

Dr. David B. Chernoff, Overbey's family physician, who is

not a cardiac specialist, testified that there was no "single

etiologic cause" for Overbey's heart attack. Dr. Chernoff stated

that all of Overbey's risk factors, including smoking, an

elevated cholesterol level, a family history of heart disease,

and diabetes, contributed to cause his heart attack. While

acknowledging that stress can be a factor in causing a heart

2 attack, Dr. Chernoff could not quantify its role. Although Dr.

Chernoff stated that Overbey's employment was not a risk factor

or cause of his heart disease, Dr. Chernoff was not aware of

Overbey's specific job duties. On cross-examination, Dr.

Chernoff admitted, however, that stress, in combination with his

other risk factors, may have played a role in causing Overbey's

heart attack.

Code § 65.2-402 provides that "heart disease . . . resulting

in total or partial disability of [a deputy sheriff] . . . 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). Unless we can say as a matter of law

that employer's evidence sustained its burden of proof, the

commission's findings are binding and conclusive upon us. Tomko

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

The commission found that employer failed to rebut the

statutory presumption because employer's evidence did not exclude

work-related stress as a possible contributing cause of Overbey's

heart disease. Dr. Chernoff admitted that stress may have played

a role, in combination with Overbey's other risk factors, in

3 causing Overbey's heart attack. However, Dr. Chernoff

acknowledged that he did not know Overbey's specific job duties.

The commission made the following findings: [Overbey] testified to the stress of his job. Dr. Chernoff testified that he did not know what [Overbey's] job duties entailed. Without knowing [Overbey's] job duties and the possible stressors associated with the job, Dr. Chernoff's testimony that the employment was not a risk factor does not negate the possibility that job stress was a risk factor.

This case is controlled by our decision in Duffy v.

Commonwealth of Virginia/Dept. of State Police, 22 Va. App. 245,

468 S.E.2d 702 (1996). In Duffy, we held that "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 [provided in Code

§ 65.2-402(B)]." Id. at 251, 468 S.E.2d at 705.

Overbey's testimony established that he suffered from

work-related stress. The record lacks persuasive evidence

excluding work-related stress as a contributing cause of

Overbey's heart disease. Thus, we cannot find as a matter of law

that employer's evidence rebutted the statutory presumption.

In Duffy, we discussed the applicability of the "two causes" rule to a case involving the statutory presumption contained in

Code § 65.2-402(B). 22 Va. App. at 251, 468 S.E.2d at 705.

Nothing in the commission's decision conflicts with our

4 discussion in Duffy. Therefore, we find no merit to employer's

assertion that the commission improperly applied the "two causes"

rule to this case.

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

Affirmed.