City of Portsmouth Sheriff's Department v. Clark

518 S.E.2d 342, 30 Va. App. 545, 1999 Va. App. LEXIS 521
CourtCourt of Appeals of Virginia
DecidedSeptember 7, 1999
Docket2667981
StatusPublished
Cited by12 cases

This text of 518 S.E.2d 342 (City of Portsmouth Sheriff's Department v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Portsmouth Sheriff's Department v. Clark, 518 S.E.2d 342, 30 Va. App. 545, 1999 Va. App. LEXIS 521 (Va. Ct. App. 1999).

Opinion

ANNUNZIATA, Judge.

The City of Portsmouth Sheriffs Department (“employer”) appeals the Workers’ Compensation Commission’s (“the commission”) determination that Stephen E. Clark (“claimant”) is entitled to benefits under the Workers’ Compensation Act (“Act”). Employer contends the commission erred in holding that employer failed to rebut the statutory presumption of Code § 65.2-402(B) that claimant’s heart condition is an occupational disease covered by the Act. We find no error and affirm.

I.

BACKGROUND

Claimant filed two claims seeking payment of medical benefits and temporary total disability benefits from employer for a heart condition, orthostatic hypotension, allegedly arising out of his employment as a deputy sheriff. Claimant’s evidence consisted of medical records produced over a span of more than three years by a number of treating physicians and claimant’s testimony concerning his physical condition and his efforts to find employment since December 1996. None of claimant’s physicians, either orally or by deposition, testified as to the cause of his orthostatic hypotension.

On November 10, 1998, the commission ruled that employer’s evidence failed to rebut the statutory presumption that claimant’s condition is an occupational disease covered by the Act. Finding the presumption intact, the commission awarded claimant medical benefits.

Based on the record before us, we find no error in the commission’s determination that employer failed to rebut the presumption of Code § 65.2-402(B).

*549 The record reveals the following relevant facts. In 1986, claimant began working as a deputy sheriff for employer. On May 27,1994, at the age of fifty-one, claimant was hospitalized for symptoms that arose while he was driving a patrol car. According to an emergency room medical report, claimant felt a burning and tingling sensation develop along the right side of his chest, right arm, and neck. Claimant also felt nauseated and weak in his right extremities and was unable to lift his right arm. Claimant denied “any headache, visual disturbance, or hearing changes.”

Upon admission to the emergency room, claimant reported he smoked one pack of cigarettes per day and had been smoking for the past thirty-five years. Claimant further reported his mother and a daughter had diabetes and reported a “strong history of strokes at a young age” in members of his family, including his mother and father. Dr. Warren Falo, the attending physician, noted that claimant’s family history was “significant for strokes on both ... his maternal and paternal sides.” Dr. A.J. Barot, a neurologist, was consulted while claimant was hospitalized and noted the following risk factors: history of smoking, high cholesterol, and a family history of strokes at a young age.

Claimant was initially diagnosed with a cerebrovascular accident (“CVA”). Upon his discharge from the hospital two days later, claimant was also diagnosed as having suffered a transient ischemic attack (“TIA”). Over the next several months, claimant continued to receive treatment from various physicians, eventually recovering from this incident with no residual effect on his right extremities.

On June 16,1994, Dr. Philip Goldstein met with claimant for a cardiovascular consultation. At that time, claimant reported that he had a history of “blackout spells.” In his report, Dr. Goldstein wrote: “As the last blackout spell was a year ago, the history is limited. From what [claimant] can recall he has them only while at work. He describes his job as very stressful. He said that they usually occur while in the car driving.” Claimant denied “diabetes, hypertension, family *550 history of coronary disease, and hypercholesterolemia.” Dr. Goldstein listed claimant’s history of smoking as the only risk factor for coronary disease.

In December 1994, Moira Horne, a Trigon claims representative, posed several questions by letter to Dr. Barot regarding claimant’s health condition in conjunction with a workers’ compensation claim. By handwritten response, Dr. Barot indicated that claimant had been diagnosed with a CVA and a TIA and that claimant had a family history risk factor.

During a cardiovascular re-evaluation on November 9, 1995, claimant reported that he had been having blackouts three or four times per year since 1982, four years before claimant started working for employer. According to claimant’s description, the blackouts caused him to have shortness of breath, nausea, double vision, and blurred vision immediately prior to passing out. After lying down for a few minutes, the episode would resolve itself, although persistent nausea and weakness might follow for some time thereafter. Dr. Skillen, the treating physician, described these blackouts as “syncopal episodes.” As a result of his examination, Dr. Skillen recommended a test, called a tilt table study, which returned “markedly abnormal” results. Performed on November 29, 1995, the test was “positive for orthostatic hypotension.”

Claimant was again hospitalized on December 9, 1996, after developing numbness, tingling, and weakness in the left upper extremity. Claimant did not report any dizziness, “fainty feeling,” or obstruction in vision. Upon his admission, claimant admitted to smoking a pack of cigarettes per day. Dr. Leonard Davis, the attending physician, noted that claimant’s mother had died of heart disease but, following an examination on December 10, 1996, Dr. Barot noted that claimant’s family history was “noncontributory” to his condition.

In February 1997, Dr. Eric Freeman, a physician with Portsmouth Pulmonary Associates, examined claimant upon referral. Claimant reported a shortness of breath that had become “much worse in the last three or four months” and a *551 significant cough that was producing a thick, clear mucous. After his examination, Dr. Freeman reported:

Assessment: History of long term cigarette smoking, coughing, mucous production on a daily basis as well as increasing shortness of breath documented objectively with Pulmonary Function Tests plus the physical finding of wheezing all indicate a diagnosis of chronic obstructive pulmonary disease with an acute exacerbation. He also has peripheral vascular disease with a stroke.
PLANS AND SUGGESTIONS: Cessation of cigarette smoking is the key to this patient improving. I asked the patient to no longer smoke cigarettes, take NICOTINE patch as soon as possible, and he has agreed to do this.

In response to a letter from another Trigon claims representative dated May 29, 1997, Dr. Davis indicated that claimant suffered from a CVA and chronic obstructive pulmonary disease (“COPD”), that claimant’s risk factor was smoking, and that claimant’s job was not the cause of his condition.

On September 2, 1997, Dr. Goldstein wrote in an office memorandum:

I suspect that [claimant] may have suffered a CVA in December of 1996 and by history and cath findings, a TLA in 1994 possibly on the basis of orthostatic hypotension which resulted in a low flow state to the brain which resulted in clotting of blood and leading to cerebral infarction.... [Claimant] does have a cardiovascular problem.

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518 S.E.2d 342, 30 Va. App. 545, 1999 Va. App. LEXIS 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-portsmouth-sheriffs-department-v-clark-vactapp-1999.