Tazewell County Sheriff's Office v. Owens ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Salem, Virginia
TAZEWELL COUNTY SHERIFF’S OFFICE
and VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 0005-99-3 JUDGE LARRY G. ELDER
JUNE 29, 1999
WILEY DONALD OWENS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Daniel E. Lynch (Ralph L. Whitt, Jr.;
Williams, Lynch & Whitt, on briefs), for
appellants.
Frederick W. Harman for appellee.
The Tazewell County Sheriff’s Office and the Virginia
Municipal Group Self-Insurance Association (hereinafter
employer) appeal from a decision of the Virginia Workers’
Compensation Commission (commission) awarding disability and
medical benefits to Wiley Donald Owens (claimant) under the
Virginia Workers’ Compensation Act (Act). On appeal, employer
contends that the commission erroneously held (1) that employer
failed to rebut the presumption of Code § 65.2-402 that
claimant’s heart disease was an occupational disease and
(2) that claimant proved his entitlement to benefits accrued on
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
January 18, 1996, the date of his myocardial infarction. For
the reasons that follow, we affirm the commission’s award of
benefits.
Code § 65.2-402(B) provides as follows:
Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of (i) salaried or volunteer
firefighters, (ii) members of the State
Police Officers’ Retirement System,
(iii) members of county, city or town police
departments, (iv) sheriffs and deputy
sheriffs, (v) Department of Emergency
Services hazardous materials officers, and
(vi) city sergeants or deputy city sergeants
of the City of Richmond shall be presumed to
be occupational diseases, suffered in the
line of duty, that are covered by this title
unless such presumption is overcome by a
preponderance of competent evidence to the
contrary.
To rebut this presumption, “the employer must show, by a
preponderance of the evidence, both that 1) the claimant’s
disease was not caused by his employment, and 2) there was a
non-work-related cause of the disease.” Bass v. City of
Richmond Police Dep’t, ___ Va. ___, ___ S.E.2d ___ (June 11,
1999) (citing Fairfax County Fire & Rescue Servs. v. Newman, 222
Va. 535, 539, 281 S.E.2d 897, 899-900 (1981); Page v. City of
Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978)).
In providing that the statutory presumption
may be overcome by a preponderance of the
evidence to the contrary, Code § 65.2-402(B)
implicitly directs the Commission as finder
of fact to consider all evidence on the
issue of causation presented by the
claimant, as well as by the employer. When
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the Commission determines that the employer
has failed to overcome the statutory
presumption, the claimant is entitled to an
award of benefits under the Act. See Code
§§ 65.2-400 to -407. On appeal from this
determination, the reviewing court must
assess whether there is credible evidence to
support the Commission’s award.
Id. at ___, ___ S.E.2d at ___.
Evidence that job-related stress is one of several factors
contributing to a claimant’s heart disease, if found credible by
the commission, is sufficient to prevent an employer from
proving the first prong required to rebut the presumption. See
id. at ___, ___ S.E.2d at ___ (implicitly holding such evidence
sufficient by remanding case with those facts to commission for
application of the proper legal standard); Augusta County
Sheriff’s Dep’t v. Overbey, 254 Va. 522, 527, 492 S.E.2d 631,
634 (1997) (noting that a claimant is entitled to benefits under
Code § 65.2-402(B) when the evidence shows that at least one
cause of the claimant’s heart disease was “related to the
employment”). Otherwise, proof of a non-work-related cause
under the second prong would always be sufficient to prove the
first prong, as well, an interpretation clearly rejected by the
Virginia Supreme Court.
Here, the commission concluded that employer failed to
rebut the first prong of the presumption of compensability
contained in Code § 65.2-402(B) because the evidence proved
claimant’s heart disease was caused, at least in part, by his
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work. As a result, it concluded that employer’s evidence on the
second prong--that non-work-related factors contributed to his
heart disease--was insufficient to rebut the presumption. We
hold that the commission applied the proper two-prong test,
recently re-affirmed by the Virginia Supreme Court in Bass, and
that credible evidence supports the commission’s findings.
Claimant’s treating physician, Dr. Najjar, opined that job
stress contributed to claimant’s coronary artery disease and, in
fact, employer offered no evidence to rebut Najjar’s opinion.
Employer also contends that the commission erred in
determining that claimant’s evidence established a communication
of occupational disease on January 18, 1996. We disagree with
this contention. Under settled principles, an occupational
disease is compensable under the Act when a diagnosis of
occupational disease is communicated to the employee. See
Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 9, 365 S.E.2d
782, 787 (1988); Code § 65.2-403. The commission’s factual
findings regarding the date of communication, like all factual
findings of the commission, are binding on appeal if supported
by credible evidence. See Code § 65.2-706(A); Falls Church
Constr. Co. v. Laidler, 254 Va. 474, 478-79, 493 S.E.2d 521, 524
(1997).
Here, claimant’s answers to employer’s interrogatories,
signed under oath and admitted into evidence before the deputy
commissioner, indicate that he was “advised by Dr. Najjar on
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January 18, 1996[,] of there being a relationship between [his]
condition and [his] employment as a Deputy Sheriff.” Further,
claimant testified that in his discussions with Dr. Najjar after
claimant’s admission to the hospital on January 18, 1996, Dr.
Najjar told him that his work was responsible for his heart
problem. Based on this evidence, the commission found “that Dr.
Najjar told [claimant] his work was responsible for his heart
condition,” quoting claimant’s testimony that he and Dr. Najjar
had “talked about it two or three different times” during the
course of his hospitalization and surgery. Because credible
evidence supports the commission’s finding, we will not reverse
it on appeal.
For these reasons, we hold that the commission did not err
in holding that employer failed to rebut the presumption of Code
§ 65.2-402 that claimant’s heart disease was an occupational
disease or in holding that claimant proved his entitlement to
benefits accrued on January 18, 1996, the date of his myocardial
infarction. Therefore, we affirm the commission’s award of
benefits.
Affirmed.
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