COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner Argued at Richmond, Virginia
TOWN OF WAVERLY LAW ENFORCEMENT AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION OPINION BY JUDGE WILLIAM G. PETTY v. Record No. 1233-07-2 FEBRUARY 19, 2008
TOMMY JAMES OWENS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Whitt & Del Bueno, on briefs), for appellants.
Malcolm Parks (Maloney, Parks & Clarke, P.C., on brief), for appellee.
Appellants, Town of Waverly Law Enforcement and Virginia Municipal Group
Self-Insurance Association (collectively, “employer”), appeal a decision of the Workers’
Compensation Commission granting Owens benefits. Employer argues that the commission
erroneously applied the presumption of occupational disease as provided in Code § 65.2-402(B).
Based on the record before us, we determine that the commission applied the law correctly; thus,
we affirm.
I. BACKGROUND
On appeal, we construe the evidence in the light most favorable to Owens, as the party
prevailing below. Whitlock v. Whitlock Mechanical/Check Servs., Inc., 25 Va. App. 470, 479,
489 S.E.2d 687, 692 (1997). On November 2, 2005, Owens filed a workers’ compensation claim
alleging an occupational disease after he suffered a heart attack. He was a police officer for the
Town of Waverly, where he had worked since October 14, 2002. The parties stipulated that the Town did not request nor conduct a preemployment physical examination as set forth in Code
§ 65.2-402(D).
Employer contested the workers’ compensation claim, arguing that Owens was not
entitled to the presumption of Code § 65.2-402. In the absence of “a preponderance of
competent evidence to the contrary,” Code § 65.2-402(B) affords a police officer suffering from
heart disease a presumption that his heart disease was caused by his or her employment and is a
compensable “occupational disease, suffered in the line of duty.” The employer also maintained
that, absent the presumption, Owens’ heart disease was an ordinary disease of life that was not
compensable.
The commission rejected employer’s argument and awarded Owens compensation
benefits. In doing so, it found that employer had failed to ask Owens to take a preemployment
physical examination and that Owens had never been told that he suffered from heart disease
prior to his heart attack. Accordingly, the commission held that the presumption applied in this
case and that the employer “failed to exclude a work related cause and therefore failed to rebut
the presumption that claimant’s heart disease is an occupational disease.” This appeal followed.
II. ANALYSIS
Employer raises two issues on appeal. First, employer argues that the commission made
an error of law when it held that Owens was entitled to the statutory presumption in the absence
of a preemployment physical examination. Employer reasons that changes to the statute made as
a result of the 1991 recodification of the Workers’ Compensation Act superseded our Supreme
Court’s holding in City of Waynesboro v. Harter, 222 Va. 564, 281 S.E.2d 911 (1981).
Employer also contends that, in the absence of the presumption, the evidence shows only that
Owens’ heart disease was a noncompensable ordinary disease of life. Because this case involves
the interpretation of a statute, we review the commission’s legal determination de novo.
-2- Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005). Based upon that review,
we hold that the commission correctly applied the presumption of Code § 65.2-402; therefore,
we need not reach employer’s second issue.
A. City of Waynesboro v. Harter
At the time our Supreme Court decided Harter, Code § 65.1-47.1 afforded police officers
a presumption of causation in workers’ compensation claims arising from heart disease, just as
Code § 65.2-402 does now. However, Code § 65.1-47.1 stated, in pertinent part, that the
presumption only applied “provided that prior to making any claim based upon such
presumption, such . . . [police officer] shall have been found free from . . . heart disease . . . by a
physical examination which shall include such appropriate laboratory and other diagnostic
studies as the [employer] shall prescribe . . . .”
In Harter, as in this case, the employer argued that the claimant was not entitled to the
statutory presumption because he did not receive a preemployment physical examination. Our
Supreme Court held that the word “shall,” used repeatedly in Code § 65.1-47.1, imposed an
affirmative duty upon employers to conduct preemployment physical examinations before they
could defeat the presumption by establishing that the claimant suffered a preexisting heart
condition. Harter, 222 Va. at 567, 281 S.E.2d at 913. In rejecting the employer’s argument, the
Court reasoned:
The interpretation urged on us by the City would eviscerate § 65.1-47.1 and defeat the obvious legislative intent. Not only would it give the employer the ability to defeat the statutory presumption, but it would also discourage municipalities from giving pre-employment examinations.
Id. at 567, 281 S.E.2d at 913. Thus, our Supreme Court affirmed the disability benefits award
even though Harter had not undergone a preemployment physical. Id.
-3- B. Recodification Of The Workers’ Compensation Act
In 1991, some ten years after the Harter decision, the General Assembly recodified the
Workers’ Compensation Act. See 1991 Va. Acts, c. 355. During that recodification, Code
§ 65.1-47.1 became Code § 65.2-402. Id. Code § 65.2-402 provides, in pertinent part, that
“heart disease causing the . . . impairment resulting in total or partial disability of . . . members of
. . . town police departments . . . shall be presumed to be [an] occupational disease[], suffered in
the line of duty, . . . covered by this title unless such presumption is overcome by a
preponderance of competent evidence to the contrary.” Code § 65.2-402(B). The statute
imposes the following limitation on the applicability of the presumption: “The presumption[] . . .
shall only apply if persons entitled to invoke [it] have, if requested by the [employer], . . .
undergone preemployment physical examinations . . . .” Code § 65.2-402(D) (emphasis added).
Employer roots his argument in this statutory change, arguing that the phrase “if
requested by the [employer]” in Code § 65.2-402(D) was specifically added to eliminate the
mandatory nature of the preemployment physical as discussed in Harter. Thus, employer reasons
that Harter was superseded by Code § 65.2-402 and therefore does not control the outcome of
this case. Employer concludes that Code § 65.2-402 does not mandate that employers conduct a
preemployment physical before asserting a bar to the presumption. Employer concludes that its
failure to request that Owens undergo a physical examination makes the presumption of Code
§ 65.2-402 unavailable to him. We are not, however, persuaded by this argument.
C. Code § 65.2-402
We must reject employer’s argument that the linguistic differences between Code
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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner Argued at Richmond, Virginia
TOWN OF WAVERLY LAW ENFORCEMENT AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION OPINION BY JUDGE WILLIAM G. PETTY v. Record No. 1233-07-2 FEBRUARY 19, 2008
TOMMY JAMES OWENS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Whitt & Del Bueno, on briefs), for appellants.
Malcolm Parks (Maloney, Parks & Clarke, P.C., on brief), for appellee.
Appellants, Town of Waverly Law Enforcement and Virginia Municipal Group
Self-Insurance Association (collectively, “employer”), appeal a decision of the Workers’
Compensation Commission granting Owens benefits. Employer argues that the commission
erroneously applied the presumption of occupational disease as provided in Code § 65.2-402(B).
Based on the record before us, we determine that the commission applied the law correctly; thus,
we affirm.
I. BACKGROUND
On appeal, we construe the evidence in the light most favorable to Owens, as the party
prevailing below. Whitlock v. Whitlock Mechanical/Check Servs., Inc., 25 Va. App. 470, 479,
489 S.E.2d 687, 692 (1997). On November 2, 2005, Owens filed a workers’ compensation claim
alleging an occupational disease after he suffered a heart attack. He was a police officer for the
Town of Waverly, where he had worked since October 14, 2002. The parties stipulated that the Town did not request nor conduct a preemployment physical examination as set forth in Code
§ 65.2-402(D).
Employer contested the workers’ compensation claim, arguing that Owens was not
entitled to the presumption of Code § 65.2-402. In the absence of “a preponderance of
competent evidence to the contrary,” Code § 65.2-402(B) affords a police officer suffering from
heart disease a presumption that his heart disease was caused by his or her employment and is a
compensable “occupational disease, suffered in the line of duty.” The employer also maintained
that, absent the presumption, Owens’ heart disease was an ordinary disease of life that was not
compensable.
The commission rejected employer’s argument and awarded Owens compensation
benefits. In doing so, it found that employer had failed to ask Owens to take a preemployment
physical examination and that Owens had never been told that he suffered from heart disease
prior to his heart attack. Accordingly, the commission held that the presumption applied in this
case and that the employer “failed to exclude a work related cause and therefore failed to rebut
the presumption that claimant’s heart disease is an occupational disease.” This appeal followed.
II. ANALYSIS
Employer raises two issues on appeal. First, employer argues that the commission made
an error of law when it held that Owens was entitled to the statutory presumption in the absence
of a preemployment physical examination. Employer reasons that changes to the statute made as
a result of the 1991 recodification of the Workers’ Compensation Act superseded our Supreme
Court’s holding in City of Waynesboro v. Harter, 222 Va. 564, 281 S.E.2d 911 (1981).
Employer also contends that, in the absence of the presumption, the evidence shows only that
Owens’ heart disease was a noncompensable ordinary disease of life. Because this case involves
the interpretation of a statute, we review the commission’s legal determination de novo.
-2- Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005). Based upon that review,
we hold that the commission correctly applied the presumption of Code § 65.2-402; therefore,
we need not reach employer’s second issue.
A. City of Waynesboro v. Harter
At the time our Supreme Court decided Harter, Code § 65.1-47.1 afforded police officers
a presumption of causation in workers’ compensation claims arising from heart disease, just as
Code § 65.2-402 does now. However, Code § 65.1-47.1 stated, in pertinent part, that the
presumption only applied “provided that prior to making any claim based upon such
presumption, such . . . [police officer] shall have been found free from . . . heart disease . . . by a
physical examination which shall include such appropriate laboratory and other diagnostic
studies as the [employer] shall prescribe . . . .”
In Harter, as in this case, the employer argued that the claimant was not entitled to the
statutory presumption because he did not receive a preemployment physical examination. Our
Supreme Court held that the word “shall,” used repeatedly in Code § 65.1-47.1, imposed an
affirmative duty upon employers to conduct preemployment physical examinations before they
could defeat the presumption by establishing that the claimant suffered a preexisting heart
condition. Harter, 222 Va. at 567, 281 S.E.2d at 913. In rejecting the employer’s argument, the
Court reasoned:
The interpretation urged on us by the City would eviscerate § 65.1-47.1 and defeat the obvious legislative intent. Not only would it give the employer the ability to defeat the statutory presumption, but it would also discourage municipalities from giving pre-employment examinations.
Id. at 567, 281 S.E.2d at 913. Thus, our Supreme Court affirmed the disability benefits award
even though Harter had not undergone a preemployment physical. Id.
-3- B. Recodification Of The Workers’ Compensation Act
In 1991, some ten years after the Harter decision, the General Assembly recodified the
Workers’ Compensation Act. See 1991 Va. Acts, c. 355. During that recodification, Code
§ 65.1-47.1 became Code § 65.2-402. Id. Code § 65.2-402 provides, in pertinent part, that
“heart disease causing the . . . impairment resulting in total or partial disability of . . . members of
. . . town police departments . . . shall be presumed to be [an] occupational disease[], suffered in
the line of duty, . . . covered by this title unless such presumption is overcome by a
preponderance of competent evidence to the contrary.” Code § 65.2-402(B). The statute
imposes the following limitation on the applicability of the presumption: “The presumption[] . . .
shall only apply if persons entitled to invoke [it] have, if requested by the [employer], . . .
undergone preemployment physical examinations . . . .” Code § 65.2-402(D) (emphasis added).
Employer roots his argument in this statutory change, arguing that the phrase “if
requested by the [employer]” in Code § 65.2-402(D) was specifically added to eliminate the
mandatory nature of the preemployment physical as discussed in Harter. Thus, employer reasons
that Harter was superseded by Code § 65.2-402 and therefore does not control the outcome of
this case. Employer concludes that Code § 65.2-402 does not mandate that employers conduct a
preemployment physical before asserting a bar to the presumption. Employer concludes that its
failure to request that Owens undergo a physical examination makes the presumption of Code
§ 65.2-402 unavailable to him. We are not, however, persuaded by this argument.
C. Code § 65.2-402
We must reject employer’s argument that the linguistic differences between Code
§ 65.2-402 and the former Code § 65.1-47.1 show that the General Assembly intended to
legislatively overrule Harter based on the plain language of the statute and prior decisions of
both this Court and our Supreme Court.
-4- Our analysis begins with the well-settled “presumption that a recodified statute does not
make substantive changes in the former statute unless a contrary intent plainly appears in the
recodified statute.” Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998)
(citing State Farm Mut. Auto. Ins. v. Major, 239 Va. 375, 378, 389 S.E.2d 307, 309 (1990)).
Further, in the absence of an explicit statement to the contrary, we also presume that the
General Assembly is familiar with the decisions of its appellate courts when it takes legislative
action and that it “acquiesce[s]” in those decisions. Weathers v. Commonwealth, 262 Va. 803,
805, 553 S.E.2d 729, 730 (2001); see also City of Norfolk v. Lillard, 15 Va. App. 424, 430, 424
S.E.2d 243, 247 (1992) (“Code § 65.1-47.1 (now § 65.2-402) has long been recognized as a
remedial statute, enacted by the legislature to overcome the difficulty . . . in proving causation.
We presume that the legislature is cognizant of the interpretation the statute has been given by
this Court and the Supreme Court of Virginia . . . .”) (parenthetical in original).
Our examination of Code § 65.2-402 and the prior decisions of both this Court and our
Supreme Court did not reveal that the General Assembly plainly expressed an intention to
substantively change Code § 65.1-47.1 when it was recodified as Code § 65.2-402. Moreover,
we can find no expression of the General Assembly’s purported disagreement with the Harter
decision. Thus, we reject employer’s argument and affirm the commission’s application of the
law.
Furthermore, our conclusion is supported by both the longstanding policy behind the Act
and the historical application of the presumption at issue here. The Workers’ Compensation Act
was adopted for the protection of workers and their dependents. Hartford Co. v. Fidelity, 223
Va. 641, 643, 292 S.E.2d 327, 328 (1982). Consistent with this overarching goal, we are to
“‘read [the statute] so as to promote [its] ability . . . to remedy the mischief at which it is
-5- directed.’” Bulala v. Boyd, 239 Va. 218, 227, 389 S.E.2d 670, 674 (1990) (quoting Bd. of
Supervisors v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989)).
The mischief the General Assembly sought to remedy in enacting Code § 65.1-47.1 was
the risk that the classes of employees enumerated in the statute would be incapable of meeting
their burdens of persuasion because of differences of opinion in the medical community
regarding the causes of hypertension and heart disease. See, e.g., Fairfax County Fire & Rescue
Servs. v. Newman, 222 Va. 535, 538-39, 281 S.E.2d 897, 899 (1981) (“‘The obvious purpose of
the rebuttable presumption is to establish by law, in the absence of evidence, a causal connection
between . . . disability from certain diseases and the [claimant’s] occupation . . . . The effect of
the presumption is to eliminate the necessity for proof by the claimant of causal connection.’”
(quoting Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978))).
In cases involving the former statute, the presumption was applied somewhat liberally as
a means to effectuate this purpose. See generally, e.g., Harter, 222 Va. at 564, 281 S.E.2d at
911; Garrison v. Prince William County Bd. of Supervisors, 220 Va. 913, 920, 265 S.E.2d 687,
691 (1980) (“A claimant who has undergone a pre-employment physical examination failing to
make a positive finding of the disease cannot be denied the benefit of the presumption merely
because subsequent examinations conducted several years after his employment as a police
officer or fire fighter result in such a finding.”); Page, 218 Va. at 847, 241 S.E.2d at 777. The
1991 recodification of the Workers’ Compensation Act did nothing to nullify these decisions.
Here, the employer’s proposed interpretation of Code § 65.2-402 would, just like the
argument advanced by the employer in Harter, “eviscerate [§ 65.2-402] and defeat the obvious
legislative intent” behind the presumption. Harter, 222 Va. at 567, 281 S.E.2d at 913. We can
find no evidence of an explicit intent on the part of the General Assembly to justify such a major
and far sweeping change in the interpretation and application of Code § 65.1-47.1 when it was
-6- recodified as Code § 65.2-402. The employer in this case bore the burden to show that the
General Assembly had the intent to effect a substantive change in Code § 65.1-47.1 when it was
recodified as Code § 65.2-402, or that the General Assembly did not acquiesce in the Harter
decision. See Waldrop, 255 Va. at 214, 495 S.E.2d at 825. It has done neither.
III. CONCLUSION
We conclude that the commission did not err when it applied the presumption of Code
§ 65.2-402 in this case. Accordingly, we affirm the award of benefits.
Affirmed.
-7-