Fairfax County Fire & Rescue Department v. Mitchell

421 S.E.2d 668, 14 Va. App. 1033, 9 Va. Law Rep. 132, 1992 Va. App. LEXIS 224

• Court: Court of Appeals of Virginia
• Decided: August 18, 1992
• Docket: Record No. 0559-91-4
• Status: Published

Opinions

Opinion

ELDER, J.

The Fairfax County Fire and Rescue Department (the Department) contends that the Virginia Workers’ Compensation Commission

* erred in awarding occupational disease benefits to William Harrison Mitchell, claimant, who was employed as an emergency medical services lieutenant. The sole issue on appeal is whether the employer’s evidence rebutted the presumption provided by Code § 65.1-47.1. We hold that, because the rebuttal evidence failed to exclude a work-related factor as a cause of the heart disease, the finding of the commission that the employer failed to rebut the presumption in claimant’s favor is conclusive and binding on appeal.

Claimant was employed as a fire fighter by Fairfax County in 1967. Prior to starting work, he underwent a pre-employment physical examination and was found to be free of hypertension and heart disease. Over the years, claimant was promoted from fire fighter to fire technician, to emergency medical services sergeant, and finally to emergency medical services lieutenant. As a lieutenant, he worked twenty-four hours on and twenty-four off, responding to fire and emergency medical calls.

Prior to November 18, 1988, claimant’s work duties included being in charge of a mobile intensive care unit and patient care, responding to fire calls, conducting building and fire inspections, and making emergency calls. He described the work as stressful.

Claimant testified that on November 18, 1988, he participated in mandatory training at the Department’s training academy. While performing CPR on a mannequin, he experienced heartburn and, when relief eluded him, he went to a hospital where he was treated by a cardiologist, Dr. George A. Besch. Three days later claimant was diagnosed as suffering from a myocardial infarction.

Code § 65.1-47.1 provides a rebuttable presumption that, absent a preponderance of competent evidence to the contrary, a causal connection exists between an individual’s employment as a salaried fire fighter and certain diseases.¹ The effect of the presumption is to eliminate the need for a claimant to prove a causal connection between his disease and his employment. In the absence of competent evidence to the contrary, the statutory presumption controls, and the claimant prevails.

In order to establish a prima facie case, the claimant need only prove his occupation and his disability from one of the diseases identified by statute. The presumption shifts the burden of going forward with the evidence from the claimant to his employer. Page v. City of Richmond, 218 Va. 844, 241 S.E.2d 775 (1978).

Various physicians examined claimant. Dr. Besch, the cardiologist at the hospital where Mitchell was taken when he fell ill on November 18, 1988, concluded that claimant’s employment as a fire fighter was not a direct cause of either the myocardial infarction or the presence of coronary atherosclerosis. However, he failed to rule out stress as a possible contributing cause of claimant’s condition. In a December 6, 1989 letter, Dr. Besch wrote that stress associated with claimant’s work could contribute to the formation of atherosclerotic plaque and could have contributed to the infarction.

Dr. Marc Gallini, claimant’s physician from 1979 until the 1988 heart attack, agreed that work-related stress did not cause claimant’s hypertension and heart disease although it “may have contributed” to them. Dr. Lawrence A. Miller determined that claimant would in all likelihood have developed coronary artery disease regardless of his occupation, yet his acute myocardial infarction in 1988 may have been precipitated by job stress. Dr. Edward A. Jones concluded that claimant’s cardiovascular problems were not directly related to his employment as a fire fighter but flowed from his other medical conditions.

Based on this medical evidence, the commission found that “all of the physicians who have treated or examined the claimant have related his coronary atherosclerosis and the myocardial infarction to the various risk factors.”² Noting that “none of the physicians have eliminated his job stress as being a contributing factor,” the commission found that medical evidence established a clear “possibility” of a relationship between the stress and the heart disease and hypertension.

Having established that he was a salaried fire fighter, that prior to his employment he experienced no coronary problems or hypertension, and that he subsequently became disabled due to both coronary problems and hypertension, claimant is entitled to the statutory presumption, provided by Code § 65.1-47.1, that his condition is an occupational disease. This presumption stands until “the contrary be shown by competent evidence.” Id.

The law governing our review of the sufficiency of evidence to rebut the statutory presumption is well settled.

In order to rebut the presumption, it is not sufficient that the employer merely adduce evidence that the heart disease was not caused by the employment; the employer must establish by competent medical evidence a non-work-related cause to rebut or overcome the statutory presumption that causation exists. If the rebuttal evidence fails to exclude a work-related factor as causing the heart disease . . . , the finding of the Commission as to causation is conclusive and binding on appeal.

Virginia Dep’t of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985) (citations omitted) (emphasis added). Here, the employer presented rebuttal evidence pointing to causes of claimant’s condition other than work. However, its evidence failed to exclude work-related stress as a factor causing the heart disease.

In County of Amherst Board of Supervisors v. Brockman, 224 Va. 391, 297 S.E.2d 805 (1982), the Supreme Court of Virginia held that the commission did not err in ruling that the statutory presumption was not rebutted where a rebutting physician did not exclude stress as a possible “contributing cause.” Id. at 399, 297 S.E.2d at 810. We are likewise bound by the commission’s decision.

For the foregoing reasons, the decision of the commission is affirmed.

Affirmed.

Baker, J., concurred.

Formerly the Industrial Commission of Virginia. Effective October 1, 1991, Title 65.1 was recodified as Title 65.2. All references in this opinion are to Title 65.1, in effect at the time the Commission’s decision was rendered in this case.

1 Code § 65.1-47.1 Presumption as to death or disability from respiratory DISEASE. HYPERTENSION OR HEART DISEASE.

The death of, or any condition or impairment of health of, salaried or volunteer fire fighters caused by respiratory diseases, and the death of, or any condition or impairment of health of, salaried or volunteer fire fighters, or of any member of the State Police Officers Retirement System, or of any member of a county, city or town police department, or of a sheriff, or of a deputy sheriff, or city sergeant or deputy city sergeant of the City of Richmond, caused by hypertension or heart disease, resulting in total or partial disability shall be presumed to be an occupational disease suffered in the line of duty that is covered by this Act unless the contrary be shown by a preponderance of competent evidence.

2 The record shows these risk factors to be (I) a twenty-year history of hypercholesterolemia; (2) a history of a two-pack-per-day cigarette habit, discontinued in 1984; (3) a recent history of hypertension; and (4) a family history of accelerated atherosclerosis. Claimant’s father suffered his first myocardial infarction at age 42 and died from an infarction at age 57.