Metropolitan Washington Airports Authority v. Lusby

585 S.E.2d 318, 41 Va. App. 300, 2003 Va. App. LEXIS 436
CourtCourt of Appeals of Virginia
DecidedAugust 19, 2003
Docket2900024
StatusPublished
Cited by12 cases

This text of 585 S.E.2d 318 (Metropolitan Washington Airports Authority v. Lusby) 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
Metropolitan Washington Airports Authority v. Lusby, 585 S.E.2d 318, 41 Va. App. 300, 2003 Va. App. LEXIS 436 (Va. Ct. App. 2003).

Opinion

ANNUNZIATA, Judge.

Metropolitan Washington Airports Authority (“MWAA”) and Hartford Underwriters Insurance Company, appellants, appeal the Workers’ Compensation Commission’s award of occupational disease benefits to Thomas E. Lusby, appellee, citing four grounds for reversal. Appellants contend the commission erred 1) in finding that Lusb/s cardiovascular disease is attributable to his employment; 2) in applying an erroneous legal standard of causation; 3) in awarding continued disability benefits based upon income that Lusby voluntarily limited; and 4) in finding that Lusby had cured his *304 unjustified refusal to work. For the reasons that follow, we affirm.

Procedural Background

On August 7, 1995, Thomas Lusby filed a claim for workers’ compensation benefits alleging as grounds the existence of a compensable occupational disease, specifically coronary artery disease (“CAD”); The claim was initially heard before the deputy commissioner in a bifurcated proceeding to first determine whether the statutory presumption of Code § 65.2-402(B) applied. 1 The deputy commissioner found that it did, and the commission affirmed. In a subsequent hearing on August 9, 2000, the deputy commissioner found that the statutory presumption had been rebutted under Bass v. City of Richmond, 258 Va. 103, 515 S.E.2d 557 (1999), and dismissed the claim. On appeal, the full commission reversed the deputy commissioner’s decision and found that the medical opinions admitted on behalf of MWAA were insufficient to rebut the statutory presumption. It remanded the case to the deputy commissioner for further proceedings, who awarded Lusby temporary partial disability benefits commencing March 16, 1998. The commission affirmed the award, modifying the beginning date for temporary partial benefits from March 16, 1998 to January 1, 1997. This appeal followed.

Factual Background

Under the relevant standard of review, we consider the evidence in the light most favorable to the party who prevailed in the proceedings below, in this case, Lusby, together with all reasonable inferences that may be drawn. R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990).

*305 I. Employment History

The evidence established that Lusby began working for MWAA in July 1979, and remained employed there until May 5, 1995, when he was diagnosed with heart disease. While employed by MWAA, Lusby did not engage in actual firefighting or emergency rescue activities. His duties consisted primarily of “training drills and exercises” and, on occasion, outdoor inspections.

During the time Lusby worked for MWAA, he held part-time jobs as a tour bus driver for Gold Line Bus Company and as a security guard for Calvert Memorial Hospital and worked 80 hours per week. Acting upon medical advice, Lusby retired on disability from MWAA in May 1995. At the time Lusby retired, he held the position of assistant fire marshal. Shortly thereafter, Lusby was offered light-duty employment as a dispatcher with MWAA. The dispatcher position paid an annual salary of $21,000 or an average weekly wage of $403.85; the position was not expected to continue longer than one year. Lusby refused the offered position because of what he believed was insufficient pay relative to his prior earnings of $44,000. The deputy commissioner determined that the refusal was unjustified. 2 Although he refused the dispatcher position, Lusby continued his part-time work for Gold Line Bus Company and Calvert Memorial Hospital. He also applied for a position as an inspector with the Alexandria Fire Department, but was not hired. After rejecting the dispatcher position, Lusby submitted an application for Civil Service retirement on February 16, 1996, stating he could not “fight fire at M.W.A.A.”

In 1996, Lusby earned $527.05 per week in his two part-time jobs, in 1997, he earned $620.50 per week, in 1998, he earned $704.31 per week, and in 1999, he earned $783.19 per week. 3 Lusby acknowledged that he could have worked more *306 hours at these two jobs and earned more income. However, his Civil Service disability pension restricts the earnings he can make. Lusby acknowledged that he did. not request additional work hours because he did not want to jeopardize his pension benefits which would have been reduced had he earned more than $39,000 per year (80% of his base pay).

II. Medical History

Lusby did not have heart disease before his employment with MWAA. However, his medical history was significant for hypertension that was controlled by medication, high cholesterol, obesity, diabetes, and color blindness. Dr. Martin Brown, MWAA’s medical director, performed an annual physical on Lusby in September 1989 and found that Lusby satisfied the requirements for the firefighter position.

In the course of his employment, Lusby was exposed to smoke and fumes on the job, especially at car and pit fires, where fuel, chemicals, rags, and tires were burned. Pit fires are controlled fires generating heavy black smoke; they are conducted to simulate aircraft fires. He was also exposed to aircraft fuel fumes and smoke in the shop area he frequented while making inspections, as well as in his office, which was poorly ventilated. His job duties did not include firefighting or performing emergency rescue services, but he was expected to complete all the tasks required of a firefighter and he had participated in those activities during controlled training drills and exercises. He generally described the stress level on the job as the same as in other jobs, but noted periods of heightened job-related stress, specifically when he dealt with toxic chemicals.

Lusby was intermittently placed on light duty after the results of a stress test performed in February 1994, and repeated in April 1995, showed “a reason for concern.” 4 On *307 April 28, 1995, a cardiologist, Dr. Steven Roberts, evaluated Lusby. Dr. Roberts reported that the results of a screening exercise electrocardiogram were abnormal, as were the results of a subsequent exercise and resting study, which “suggest[ed] scar[ring] in the right coronary artery and possibly the left circumflex artery as well.” Dr. Roberts performed a cardiac catheterization and angioplasty on May 5, 1995 and diagnosed Lusby with severe coronary artery disease (“CAD”).

On May 19, 1995, Dr. Mahesh Shah, who assumed responsibility as Lusby’s treating cardiologist, noted that Lusby suffered from premature CAD, without significant symptomatology. Dr.

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585 S.E.2d 318, 41 Va. App. 300, 2003 Va. App. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-washington-airports-authority-v-lusby-vactapp-2003.