Donald R. Godfrey v. City of Portsmouth Fire Dept. ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
DONALD R. GODFREY
MEMORANDUM OPINION* BY
v. Record No. 1950-00-1 JUDGE JAMES W. BENTON, JR.
APRIL 10, 2001
CITY OF PORTSMOUTH FIRE DEPARTMENT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach (Jack T. Burgess &
Associates, P.C., on brief), for appellant.
William C. Walker (Taylor & Walker, P.C., on
brief), for appellee.
Donald R. Godfrey contends that the Workers' Compensation
Commission erred in ruling that his employer, the City of
Portsmouth Fire Department, produced a preponderance of evidence
to rebut the presumption that his heart disease was an
occupational disease. See Code § 65.2-402(B). We agree, and we
reverse and remand this matter to the commission.
I.
At the time of the evidentiary hearing, Donald R. Godfrey
was fifty-six years old and had worked for the City of
Portsmouth Fire Department for thirty-five years. Godfrey's
initial employment physical examination did not indicate signs
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of heart disease and revealed his blood pressure was in normal
range. As a firefighter, Godfrey later trained to be an
emergency medical technician. In his job, he was often aroused
from sleep to respond to fires, emergency medical calls,
domestic disturbances, shootings, stabbings, automobile
accidents, and various other emergency events. Godfrey's
testimony contains descriptions of emergencies involving tragic
deaths of children, other "terrible things [he has seen] in
[his] career," and his general job duties. During the years he
has been employed as a firefighter, Godfrey has developed
hypertension and high cholesterol.
In 1997, Godfrey complained of chest pains and was referred
to a cardiologist. Dr. Edward O. Lynch performed a diagnostic
catherization and diagnosed "single vessel disease with high
grade obstruction of the proximal LAD and first diagnal artery."
Dr. Lynch later reported that Godfrey has "known two-vessel
coronary artery disease" and continued as follows:
Mr. Godfrey's underlying ischemic coronary
artery disease is related to his gender,
being an adult male, and his history of
elevated cholesterol and hypertension.
There has never been shown any direct
relationship showing stressful jobs, such as
fire fighting, police work, or commercial
airline piloting, to be a causation for
underlying ischemic heart disease. Mr.
Godfrey certainly could have been a painter,
a postman, or any other occupation, and
could have potentially still developed
underlying ischemic heart disease because of
his risk factors.
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Godfrey was also treated by another cardiologist,
Dr. William E. Callaghan. His reports include the following:
Clearly stress plays some role in control of
hypertension. Patients with more stressful
environments are likely to have poorly
controlled hypertension. . . . [T]here are
numerous articles which attempt to link the
level of stress with development of coronary
disease. To the best of my knowledge, there
is no definitive study that supports the
conclusion, although it is in the great
likelihood because of difficulties in
measuring stress in an objective fashion.
. . . I do believe hypertension has played
some role in this gentleman's coronary
artery disease. . . . [H]is cholesterol has
also played a role in his development of
coronary artery disease. His last total
cholesterol was 204 with an LDL of 125 both
of which are quite elevated, but improved on
medication therapy.
Dr. Callaghan later confirmed his views.
I, . . . told Mr. Godfrey that I do feel
that stress plays a role in the development
of coronary artery disease. He has
described today and in the past on a couple
of occasions, the significant stress that he
experienced during his employment as a fire
fighter. Although it is difficult to gauge,
I have told him that I do believe that
stress has played a role in his development
of coronary disease.
Dr. Lynch reviewed Dr. Callaghan's first report and
expressed his disagreement in a letter, which included a report
issued by two medical associations. In pertinent part, he
reported as follows:
For your interest, I have enclosed in this
letter those risk factors which are thought
to be prevalent as a contributing factor
toward the development of ischemic heart
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disease. They include category 1 risk
factors, category 2, 3, and 4 with their
contributions being less significant in the
lower groups. First let me say that Mr.
Godfrey's underlying ischemic heart disease
is secondary to elevated cholesterol,
hypertension, and his male gender. No where
on the list of risk factors that was
convened and established by this conference
and is now used as a standard of care in the
practice of cardiology is listed stress and
nowhere is mentioned specifically job
stress. There is under category 3,
psychosocial factors. I have enclosed for
you the excerpt from this publication that
outlines those psychosocial factors. Again,
these factors are not related to a specific
job stress, but to an individual and are
usually related to type A personalities,
patients with depression or hostile
personalities who are suspected to possibly
have aggravating risk for the development of
coronary artery disease. In regards to Dr.
Callaghan letters, I do agree with him and
in fact will further mention as he says that
there is no definitive study that supports
the conclusion that there is any
relationship between job stress and coronary
disease. I will frankly tell you that this
has been studied and there has never been
found to be any increased incidents of
coronary disease among any specific jobs
such as fireman, policeman, attorneys,
painters, candlestick makers, or butchers.
As he mentions, it would be very difficult
to interpret each individuals level of
stress. What may be very stressful to one
person would be inconsequential possibly to
another.
In summary, Dr. Callaghan is correct
stating that Mr. Godfrey's coronary disease
is secondary to hypertensive vascular
disease, hyperlipidemia, and his male
gender. There is no evidence presently or
literature to support any job stress related
incidents as a risk factor for coronary
disease.
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II.
The commission reviewed the evidence and made the following
findings:
Based on the evidence presented in this
case, we find that the employer has rebutted
the presumption and proven that job-related
stress was not a cause of [Godfrey's] heart
disease. Dr. Lynch clearly did not believe
that stress resulting from [Godfrey's] job
as a firefighter was a cause of his heart
disease. Although Dr. Callaghan did relate
job stress to [Godfrey's] heart disease, he
acknowledged that this was not supported by
studies. Considering the fact that
Dr. Lynch was a treating physician and
Dr. Callaghan's candid acknowledgement that
his view was not supported by definitive
studies, we find Dr. Lynch's opinion the
more persuasive. As such, the employer has
shown by a preponderance of the evidence
that [Godfrey's] heart disease was not
caused by his employment. The employer has
also established the second prong of the
test in showing that there was a
non-work-related cause of the disease.
Dr. Lynch unequivocally stated that the
proximate causes of [Godfrey's] condition
was [Godfrey's] gender and a history of
elevated cholesterol and hypertension.
Dr. Callaghan agreed that [Godfrey's]
hypertension and cholesterol have played a
role in his condition. In the absence of
any clear statement from Dr. Callaghan that
[Godfrey's] job as a firefighter caused or
contributed to his heart disease, we find
there is evidence of a non-work-related
cause of the disease. We therefore find
that the employer has rebutted the statutory
presumption of [Code] § 65.2-402.
III.
In pertinent part, Code § 65.2-402 provides as follows:
B. Hypertension or heart disease causing
the death of, or any health condition or
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impairment resulting in total or partial
disability of (i) salaried or volunteer
firefighters . . . 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.
* * * * * * *
D. The presumptions described in . . . this
section shall only apply if persons entitled
to invoke them have, if requested by the
. . . governing body employing them,
undergone preemployment physical
examinations that (i) were conducted prior
to the making of any claims under this title
that rely on such presumptions, (ii) were
performed by physicians whose qualifications
are as prescribed by the . . . governing
body employing such persons, (iii) included
such appropriate laboratory and other
diagnostic studies as the . . . governing
bodies may have prescribed, and (iv) found
such persons free of respiratory diseases,
hypertension, cancer or heart disease at the
time of such examinations.
The principle is now well established that "[t]o overcome the
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, 258 Va. 103, 114, 515
S.E.2d 557, 562-63 (1999) (emphasis added).
Twenty years ago the Supreme Court ruled that when the
legislature enacted the statutory presumption that covers
employees such as firefighters, "[t]he legislature knew that the
causes of . . . cardiac diseases are unknown and that the
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medical community is split regarding the impact of stress and
work environment on these diseases." Fairfax County Fire and
Rescue Ser. v. Newman, 222 Va. 535, 540, 281 S.E.2d 897, 900
(1981). Applying that rationale, we recently held as follows:
By enacting the statutory presumption, the
General Assembly resolved the split in
medical opinions in favor of the employee
and adopted the presumption that the stress
of working as a law enforcement officer
causes or contributes to the development of
heart disease. Testimony which merely
refutes the premise of such a legislatively
enacted presumption does not constitute
proper evidence in rebuttal. Where the
General Assembly has concluded that there is
a causal link between stress and heart
disease, it is not for the commission or the
courts to reconsider the issue, for to do so
would defeat the intentions of the
legislature. It thus follows that, "[i]t is
impermissible for the [commission] to accept
the opinion of a physician so disposed as
the basis for disallowing a claim." . . .
We, accordingly, hold that evidence that
merely rebuts generally the underlying
premise of the statute, which establishes a
causal link between stress and heart
disease, is not probative evidence for
purposes of overcoming the presumption.
Medlin v. County of Henrico Police, 34 Va. App. 396, 406-07, 542
S.E.2d 33, 38-39 (2001) (citations omitted).
As an employee of the City of Portsmouth Fire Department,
Godfrey was within the category of employees covered by the
statutory presumption. Furthermore, the evidence proved Godfrey
was eligible to invoke the benefit of the presumption because
his initial employment physical examination showed him to be
free of heart disease and hypertension.
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In finding that the employer rebutted the first prong of
the presumption, the commission found to be more persuasive
Dr. Lynch's opinion because it was based in substantial part
upon studies which establish that no relationship has been shown
between the stress of being a firefighter and underlying heart
disease. That evidence, however, does nothing more than attack
the underlying rationale of the statute, which establishes the
presumptive link between Godfrey's employment and his disease.
The studies cited by Dr. Lynch, which were the basis upon which
the commission found Dr. Lynch's opinion to be more persuasive,
are not probative of the issue that the employer must
necessarily prove, i.e., that the heart disease was not caused
by employment. Id. at 407, 542 S.E.2d at 38-39. When we
disregard this evidence, we cannot conclude that the employer
has rebutted the presumption.
For these reasons, we reverse the commission's decision and
remand for rehearing.
Reversed and remanded.
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