Metro Washington Airports v. John L. Bispo ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY AND HARTFORD
CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0905-03-4 PER CURIAM
AUGUST 19, 2003
JOHN L. BISPO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
(Michael J. Kernbach; Burgess, Kernbach &
Perigard, PLLC, on brief), for appellee.
Metropolitan Washington Airports Authority and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred (1) in finding that employer
failed to rebut the statutory presumption contained in Code
§ 65.2-402(B); and (2) in applying an erroneous legal standard
and in failing to follow Henrico County Div. of Fire v. Estate
of Woody, 39 Va. App. 322, 572 S.E.2d 526 (2002), and Bass v.
City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557(1999). Upon reviewing the record and the parties' briefs, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
In pertinent part, Code § 65.2-402(B) provides as follows:
Hypertension or heart disease causing . . .
any health condition or impairment resulting
in total or partial disability of . . .
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.
"To 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, 258 Va. at 114,
515 S.E.2d at 562-63.
Our review of the commission's decision is governed by well
established principles. As a fundamental principle, the Act
provides that "the award of the Commission . . . shall be
conclusive and binding as to all questions of fact." Code
§ 65.2-706(A). Thus, we are guided by the following rules:
On appeal from [a] determination [that
the employer has failed to overcome the
statutory presumption], the reviewing court
must assess whether there is credible
evidence to support the Commission's award.
Thus, unlike the Commission, the reviewing
court is not charged with determining anew
whether the employer's evidence of causation
should be accorded sufficient weight to
constitute a preponderance of the evidence
on that issue.
Bass, 285 Va. at 115, 515 S.E.2d at 563 (citations omitted).
- 2 -
These rules apply with equal force to questions raised by
competing medical opinions because "a question raised by
'conflicting expert medical opinions' is 'one of fact.'" Eccon
Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799
(1981) (citation omitted); see also Virginia Dep't of State
Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). "[A]s finder of fact . . . , the Commission resolves
all conflicts in the evidence and determines the weight to be
accorded the various evidentiary submissions." Bass, 258 Va. at
114, 515 S.E.2d at 563.
In ruling that the evidence did not preponderate to prove
that claimant's employment was not a cause of the development of
his heart disease, the commission found as follows:
We agree with the deputy commissioner
that the employer did not overcome the Code
§ 65.2-402 presumption by a "preponderance
of competent evidence." We are persuaded
that the opinions of Drs. [Warren] Israel,
[Stuart] Seides, and [Christopher] Holland
that the claimant's heart disease was not
caused by his work were primarily based on
the absence of scientific evidence, in their
opinion, that established a link, in
general, between heart disease and a
person's work. Dr. Israel noted that such a
conclusion was not consistent with "the
preponderant opinion of the medical
community" and Dr. Holland noted that it was
not supported by a "preponderance of
scientific evidence." Dr. Seides similarly
noted that such a conclusion had "no basis
in scientific fact whatsoever."
We are more persuaded by Dr. [Melanie]
Mattson's opinion that the evidence did not
show that the claimant's employment did not
- 3 -
cause his heart disease. This opinion was
corroborated by Dr. [Richard] Schwartz's
opinion. Dr. Mattson pointed to certain
"risk factors" that could be seen as
"promoters" of heart disease, but denied
being able to describe a "cause-and-effect"
relationship between the risk factors and
heart disease. Dr. Mattson testified as
follows:
I think there are a host of
things that cause coronary
disease, and no one has accurately
identified the exact cause as to
why Person A would develop a
certain amount of coronary disease
and Person B would not develop
coronary disease with all of the
same milieu – you know, the same
cholesterol, the same sugar, the
same blood pressure. There are a
lot of unidentifiable causes. I
think risk factors make the
disease more likely from a
statistical standpoint.
In the claimant's case, Dr. Mattson included
the claimant's employment as one of the
"risk factors that make the disease more
likely." In conclusion, after weighing the
evidence concerning the causes of the
claimant's heart disease, we agree with the
deputy commissioner that the employer did
not present a preponderance of competent
medical evidence showing that the claimant's
heart disease was not caused by his
employment.
Based upon the testimony and medical records of
Drs. Israel, Seides, and Holland, the commission could
reasonably infer that their opinions that claimant's heart
disease was not caused by his employment were based upon their
underlying belief that, in general, no scientific evidence
exists to establish a causal link between a person's heart
- 4 -
disease and his or her employment. "Where reasonable inferences
may be drawn from the evidence in support of the commission's
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404,
374 S.E.2d 695, 698 (1988). This Court has held that
"[e]vidence 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 [that the heart disease is
occupational]." Medlin v. County of Henrico Police, 34 Va. App.
396, 407, 542 S.E.2d 33, 39 (2001). Thus, the commission, as
fact finder, was entitled to give no probative weight to the
opinions of Drs. Israel, Seides, and Holland.
Dr. Mattson opined that "[o]ccupational stress as a
firefighter . . . was also a contributing risk factor in the
development or acceleration of [claimant's] heart disease" and
that she could not scientifically exclude or include claimant's
employment as a cause for the development of his heart disease.
Dr. Schwartz opined that "[o]ccupational stress cannot be
excluded as a risk factor or cause with regard to the
development of [claimant's] cardiac condition." Their opinions,
coupled with claimant's testimony regarding the stress he
encountered in his work as a firefighter, provide credible
evidence to support the commission's conclusion that employer
failed to prove by a preponderance that claimant's work was not
- 5 -
a cause of his heart disease. Thus, because employer did not
meet its burden under the first prong of the Bass test, it
failed to rebut the statutory presumption contained in Code
§ 65.2-402(B). 1
Employer's contention in its second question presented that
the commission applied an incorrect legal standard by requiring
employer to exclude the possibility that the claimant's
employment played a role in the development of his
cardiovascular disease is without merit. Our review of the
record reveals that the commission's decision was based upon a
thorough review and weighing of the medical evidence in its
entirety and the commission's proper application of the Bass
test to that evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
1
The commission's decision was based upon its finding that
employer did not meet its burden under the first prong of the
Bass test. We have addressed that finding on appeal and, thus,
need not address the second prong of the Bass test.
- 6 -