Kenneth R. Owens v. York Co. Fire & Rescue ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
KENNETH R. OWENS
OPINION BY
v. Record No. 1898-01-4 JUDGE ROBERT P. FRANK
MAY 28, 2002
YORK (COUNTY OF) FIRE AND RESCUE AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach (Burgess, Locklin,
Kernbach & Perigard, on brief), for
appellant.
Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Whitt & Associates, on brief), for appellees.
Kenneth R. Owens (claimant) appeals a decision of the
Workers' Compensation Commission (commission) denying him
benefits under Code § 65.2-402(B). Claimant contends the
commission erred when it found his claim did not meet the
requirements of Code § 65.2-406 because he filed the claim more
than two years after he received a diagnosis of an occupational
disease. For the reasons stated, we affirm the decision of the
commission.
BACKGROUND
Claimant began working for the York County Fire and Rescue
Department in 1973. Claimant remained employed with the Fire
and Rescue Department until 1999. He filed a claim for benefits
on October 21, 1999, alleging he had contracted an occupational
disease, hypertension.
As part of his employment, claimant was required to have a
medical examination once a year. Dr. John D. Hollingsworth
conducted the 1995 examination. At that time, claimant had a
blood pressure reading of 190/100. He was diagnosed with
"hypertension, stage II." Dr. Hollingsworth placed claimant on
hypertension medicine, indicating he would discuss treadmill
tests with the fire chief "before this patient can be cleared
for the Fire Department."
On January 23, 1996, Dr. Bryant examined claimant.
Dr. Bryant confirmed Dr. Hollingsworth's diagnosis of
"hypertension" and again prescribed hypertension medication.
Claimant's blood pressure was 221/110.
Claimant saw Dr. Bryant again on January 25, 1996, and
reported he had stopped taking his blood pressure medication
because he was "feeling wonderful." At that appointment, his
blood pressure was 200/112. Dr. Bryant recommended the same
hypertension medication, but at an increased dosage, and advised
claimant "he would not be able to work if the [blood pressure]
was not well controlled." Dr. Bryant listed claimant's primary
problem as "severe hypertension with poor compliance."
Claimant received follow up treatments for hypertension and
related illnesses with Dr. Bryant on February 2, 1996, February
8, 1996, March 5, 1996, May 29, 1996, and February 25, 1997.
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Claimant returned to Dr. Bryant on January 13, 1998. At
that appointment, his blood pressure readings were 240/136,
226/122 and 210/118. He indicated he had not taken his
hypertension medication for months. Again, the doctor diagnosed
severe hypertension. Dr. Bryant also had a "[l]engthy
discussion with [claimant] on the importance of compliance with
[medications], diet and exercise."
Claimant testified that prior to his January 13, 1998
appointment with Dr. Bryant, he never received a diagnosis or
information from any source, including Dr. Bryant, that he was
suffering from hypertension. When questioned regarding
Dr. Bryant's report that he advised claimant in 1996 and 1997
that he had hypertension, claimant denied he was ever told about
this disease during that period. Claimant testified he did not
understand he was suffering from hypertension until January
1998, when Dr. Bryant allegedly told him that his hypertension
was caused by his work at the fire department and that claimant
needed to retire. 1
During his employment with the fire department, claimant
had been president of his local union. He worked with the
International Association of Firefighters and the Virginia
Professional Firefighters developing legislation on presumptive
1
The parties agree that Dr. Bryant never causally related
claimant's hypertension to his work before January 1998.
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occupational disease claims. Claimant testified he was aware,
prior to January 1998, that he was afforded special workers'
compensation coverage for the disease of hypertension. Claimant
acknowledged he had known for at least fifteen years that
hypertension "is a condition that's covered under the
presumption under Workers' [Compensation Act] that you as a
firefighter would be entitled to."
Claimant further testified he would have filed a claim
prior to January of 1998 for hypertension "had [he] been told
[he] had it." Claimant also admitted he knew "hypertension was
high blood pressure" and acknowledged he had taken medication
for the disease for approximately five years.
Dr. Bryant testified he informed claimant that he had
hypertension in early 1996. Dr. Bryant indicated that he may
have used the phrase "high blood pressure" to describe
hypertension, but this phrasing would not have suddenly changed
in 1998 when claimant alleges he first learned he had
hypertension. The phraseology Dr. Bryant used in discussing his
diagnosis with claimant in 1996 would have been the same in
1998.
Dr. Bryant further testified he believed claimant was aware
he had hypertension or high blood pressure in January 1996. The
doctor also stated claimant told him in 1996 that he checked his
blood pressure himself periodically.
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The deputy commissioner, noting the medical records
indicated claimant was diagnosed with hypertension as early as
January 11, 1995, ruled the claim barred by the statute of
limitations. The full commission affirmed the deputy
commissioner's ruling.
ANALYSIS
Claimant argues the filing of his claim fell within the
statutory two-year period established by Code § 65.2-406. Code
§ 65.2-406(A) states, in part:
The right to compensation under this chapter
shall be forever barred unless a claim is
filed with the commission within one of the
following time periods:
* * * * * * *
5. For all other occupational diseases
[including hypertension], two years after a
diagnosis of the disease is first
communicated to the employee or within five
years from the date of the last injurious
exposure in employment, whichever first
occurs.
This filing requirement is jurisdictional. Hawks v. Henrico
County Sch. Bd., 7 Va. App. 398, 401, 374 S.E.2d 695, 696
(1988); Musick v. Codell Constr. Co., 4 Va. App. 471, 473, 358
S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co.,
214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)). "Moreover, the
burden is upon the claimant to prove compliance with the
statute." Hawks, 7 Va. App. at 401, 374 S.E.2d at 697.
"Whether a diagnosis of an occupational disease was
communicated and when the communication occurred are factual
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determinations to be made by the commission upon the evidence.
Upon appellate review, the findings of fact made by the
commission will be upheld when supported by credible evidence."
Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484
S.E.2d 140, 144 (1997) (citations omitted), aff'd on other
grounds, 255 Va. 254, 497 S.E.2d 464 (1998). See also A. G. Van
Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198,
203 (1988). The commission's factual findings will not be
overturned unless plainly wrong or without evidence to support
them. Dan River, Inc. v. Giggetts, 34 Va. App. 297, 302, 541
S.E.2d 294, 296 (2001).
A. Communication of Hypertension Diagnosis
The commission found claimant was diagnosed with
hypertension more than two years prior to the filing of his
claim, explaining:
As found by the Deputy Commissioner, the
claimant's testimony regarding his diagnosis
of hypertension . . . lacks credibility.
* * * * * * *
The claimant testified that he was entirely
unaware that he suffered from
"hypertension," until January 1998. He even
testified that he did not know he had "high
blood pressure" until 1998. The medical
records strongly suggest to [sic] the
contrary. He also appears to suggest,
however, that Dr. Bryant's use of the term
"high blood pressure," rather than
"hypertension," may have confused or misled
him into believing that he did not have
compensable "hypertension." However, he
acknowledged in later testimony that he was
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aware that the terms "hypertension" and
"high blood pressure" were synonymous.
Therefore, the claimant's testimony to the
contrary notwithstanding, we find that he
was diagnosed as suffering from
"hypertension" in January 1995, and received
a communication of diagnosis of this
condition on multiple occasions in 1996 and
1997.
Claimant contends a diagnosis of "high blood pressure" is
not a diagnosis of "hypertension" under Code § 65.2-402(B).
Therefore, he argues, the diagnosis of an occupational disease
was not "first communicated" to him until 1998, at which point
the statute of limitations should have started running. See
Code § 65.2-406(A)(5). However, credible evidence supports the
commission's finding that claimant was diagnosed with
hypertension as early as 1995. See Dan River, Inc., 34 Va. App.
at 302, 541 S.E.2d at 296.
Claimant's own testimony proved he knew "hypertension was
high blood pressure." Even if he did not, "a physician is not
required to utilize precise medical terminology to communicate
the existence of occupational disease in order to trigger the
obligation to file a claim." Hawks, 7 Va. App. at 403, 374
S.E.2d at 697 (finding an employee received communication of the
occupational disease interstital fibrosis when a doctor informed
the employee that he had "scarring" of the lungs).
Dr. Hollingsworth's report diagnosed claimant with
"hypertension, stage II" in January 1995. He prescribed
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medication to control the condition and recommended treadmill
tests before allowing claimant to resume his duties at the fire
department. Claimant admits he began taking the medication
around that time. This evidence supports the commission's
finding that claimant knew in 1995 he had hypertension and
should have filed his claim with the commission earlier. 2 See
Uninsured Employer's Fund, 24 Va. App. at 558, 484 S.E.2d at
144.
Additionally, Dr. Bryant testified, and his records show,
he talked to claimant about high blood pressure several times in
1996. Claimant's medical records indicate Dr. Bryant repeatedly
diagnosed hypertension, prescribing medications and behavioral
changes to bring the condition under control. This evidence
supports the commission's finding that a diagnosis of the
occupational disease, hypertension, was communicated to claimant
more than two years before he filed his claim on October 21,
1999. See Dan River, Inc., 34 Va. App. at 302, 541 S.E.2d at
296.
2
Whether the claim was compensable in 1995 is irrelevant.
See Kiser v. Clinchfield Coal Co., 225 Va. 357, 359-60, 302
S.E.2d 44, 45-46 (1983) (finding a claim must be filed when a
diagnosis of an occupational disease is communicated to an
employee, whether or not he believes at that time that the claim
will result in any award of benefits).
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B. Communication of Workplace Relationship
Claimant also argues the causal connection between his
hypertension and his workplace was not communicated to him until
January 1998. Therefore, he maintains, the two-year statute of
limitations did not begin to run until that time.
Claimant is correct in claiming Code § 65.2-406(A)(5)
requires communication of two distinct facts: (1) a diagnosis
of the disease; and (2) the disease is an "occupational
disease." Code § 65.2-400 defines an "occupational disease" as
"a disease arising out of and in the course of employment, but
not an ordinary disease of life to which the general public is
exposed outside of the employment."
A diagnosis of an occupational disease is not completely
communicated to an employee until he receives information
indicating the disease is "one 'arising out of and in the course
of the employment.'" Garrison v. Prince William County Bd. of
Supervisors, 220 Va. 913, 917, 265 S.E.2d 687, 689 (1980)
(citing Code § 65.1-46, a previous version of Code § 65.2-400)
(holding the statute of limitations did not bar a claim filed in
1978, where the employee was told he had hypertension in 1975,
but he was not told hypertension arose out of and in the course
of his employment). The determinative issue here, therefore, is
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whether the diagnosis of hypertension 3 as an "occupational
disease" was communicated to claimant prior to October 21, 1997,
two years before the filing of his claim.
It is undisputed that no physician communicated to claimant
that a nexus existed between his hypertension and his job prior
to the appointment with Dr. Bryant in January 1998. 4 However,
this fact does not end our inquiry. We must determine when
claimant was informed that hypertension is an occupational
disease.
We have previously held communication of an occupational
disease need not come from a medical doctor. In Ratliff v.
Dominion Coal Co., 3 Va. App. 175, 179, 349 S.E.2d 147, 149
(1986), this Court held a letter from the United States
Department of Labor, informing a miner that he was disabled
under the Black Lung Benefits Act, constituted "a medical
determination of total disability due to pneumoconiosis" and
3
Code § 65.2-402(B), in part, states:
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 . . . shall be presumed to be
occupational diseases [sic], 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.
4
In fact, Dr. Bryant denies ever informing claimant that
his hypertension was caused by his employment as a firefighter.
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triggered the running of the Virginia statute of limitations for
workers' compensation benefits. This Court rejected Ratliff's
argument "that the Department of Labor letter was an
administrative or legal determination, but not a 'medical
determination.'" Id. This Court further explained that Ratliff
knew or should have known after receiving the letter that,
although the letter referred to federal standards, "it was,
nevertheless, incumbent upon Ratliff to file a Virginia claim"
of disability due to pneumoconiosis within three years of
receiving the letter. 5 Id. at 180, 349 S.E.2d at 149-50.
Claimant contends the commission misconstrued our decision
in City of Alexandria v. Cronin, 20 Va. App. 503, 458 S.E.2d 314(1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996). However, the
5
At the time Ratliff was decided, the statute of
limitations for filing a claim was controlled by former Code
§ 65.1-52, which read:
The right to compensation under this chapter
shall be forever barred unless a claim be
filed with the Industrial Commission within
one of the following time periods:
1. For coal miners' pneumoconiosis, three
years after a diagnosis of the disease is
first communicated to the employee or within
five years from the date of the last
injurious exposure in employment, whichever
first occurs.
(Emphasis added.)
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commission correctly applied Cronin. In fact, we find Cronin is
dispositive of this case.
In Cronin, Cronin received a formal diagnosis of coronary
heart disease in October 1989 and soon thereafter filed with the
city for service-connected disability retirement from his job as
a firefighter. Id. at 505, 458 S.E.2d at 315. Cronin died on
February 22, 1992, and his estate filed a claim for benefits
with the commission. Id. at 506, 458 S.E.2d at 315. The
commission concluded Cronin's estate was not barred by the
limitation period because Cronin was "not 'medically advised
that his condition was causally related to his work.'" Id. at
507, 458 S.E.2d at 316 (citing the commission's decision).
In overturning the commission, this Court held:
By interpreting the statute as requiring
proof of a communication by a physician of
the employee's occupational disease, the
commission ignores the fact that, while many
employees may receive a diagnosis of his or
her disease from a physician, the claimants
may receive the communication that such a
disease is a compensable occupational
disease from someone other than a physician,
often an attorney or someone in charge of
personnel or administering benefits. The
commission's ruling overlooks practical
experience under the Act and the fact that
the compensability of an occupational
disease is a creation of the legislature. A
physician's diagnosis of an employee's
condition is not dispositive on the issue of
compensability and physicians often reach
different conclusions about a condition's
origin.
* * * * * * *
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Neither this Court nor the Supreme Court of
Virginia has interpreted Code
§ 65.2-406(A)(5) as requiring a
communication from a physician to trigger
the running of the limitations period. We
hold that Code § 65.2-406(A)(5) does not
require that an employee receive from a
physician a communication that his disease
is work related; rather, the statute only
requires that the employee, simultaneously
with or sometime after the diagnosis of his
condition, learn that the condition is an
occupational disease for which compensation
may be awarded. See Ratliff v. Dominion
Coal Co., 3 Va. App. 175, 349 S.E.2d 147(1986).
Id. at 508-09, 458 S.E.2d at 316-17. The Court concluded,
"Cronin received a medical diagnosis of his heart condition and
acted upon such diagnosis to receive service-connected
disability benefits. This action proved that Cronin was
informed for purposes of the statute." Id. at 510, 458 S.E.2d
at 317.
As in Cronin, claimant here was not informed by a doctor
that his hypertension was work-related. 6 However, claimant had
known for ten to fifteen years that hypertension is an
occupational disease which is presumptively compensable under
Code § 65.2-402(B). He had lobbied for legislation to enact
that presumption. He was aware, prior to his diagnosis, that
his work as a firefighter afforded him special workers'
6
In fact, Dr. Bryant testified he did not believe
claimant's hypertension was causally related to his work, and
the deputy commissioner found the presumption in Code
§ 65.2-402(B) was rebutted.
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compensation coverage for hypertension. Most significantly,
claimant testified that if a doctor had diagnosed him with
hypertension prior to January 1998, he would have filed his
claim earlier, suggesting he knew such a diagnosis was an
occupational disease. This testimony also belies claimant's
contention that he only had a "general knowledge" of the
compensability of hypertension.
The commission found claimant's testimony that he did not
know his hypertension was presumptively an occupational disease
"lacked credibility." The evidence supports this conclusion.
See Uninsured Employer's Fund, 24 Va. App. at 558, 484 S.E.2d at
144. Overall, claimant's testimony actually underscored the
fact that he did know hypertension was a presumptively
compensable occupational disease. 7
As in Cronin, claimant "receive[d] the communication that
such a disease is a compensable occupational disease from
someone other than a physician." 20 Va. App. at 508, 458 S.E.2d
at 316. He had this knowledge when the diagnosis was
communicated to him, as he had known hypertension was an
7
Claimant further contends that, since Code § 65.2-402(B)
requires "total or partial disability" as a condition for the
presumption to arise, he could not have filed his claim until
February 5, 1998, when he became disabled. We will not consider
this issue because it was not before the deputy commissioner or
the full commission.
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occupational disease for at least fifteen years prior to the
diagnosis.
The evidence supports the commission's findings that a
diagnosis of an occupational disease was communicated to
claimant as of January 1995. Therefore, his October 1999 filing
falls far outside the two-year statute of limitations set forth
in Code § 65.2-406(A)(5). We conclude that the source of the
communication of occupational disease is immaterial as long as
claimant learned "that the condition is an occupational disease
for which compensation may be awarded." Id. at 509, 458 S.E.2d
at 317.
For the reasons stated above, we affirm the decision of the
commission.
Affirmed.
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