City of Richmond Police Department v. Claude Bass , 26 Va. App. 121 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Elder and Annunziata
Argued at Richmond, Virginia
CITY OF RICHMOND POLICE
DEPARTMENT
OPINION BY
v. Record No. 0657-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 9, 1997
CLAUDE ASHLEY BASS, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Scott C. Ford (Charles F. Midkiff; Midkiff &
Hiner, on brief), for appellant.
Malcolm Parks (Maloney, Barr & Huennekens, on
brief), for appellee.
The City of Richmond Police Department ("employer") appeals
the Workers' Compensation Commission's decision awarding benefits
to Claude A. Bass, Jr. ("claimant"). Employer argues that the
commission erroneously: (1) excluded claimant's testimony
regarding the relationship between work stress and his
hypertension; (2) found that his claim was not time-barred; (3)
found that claimant established the presence of coronary artery
disease and met his burden of proving a compensable occupational
disease; and (4) found that employer's evidence was insufficient
to rebut the statutory presumption of Code § 65.2-402. For the
reasons that follow, we reverse.
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
I. BACKGROUND
Claimant is a police captain who has been a member of the
Richmond Police Department since 1964. During his tenure with
the department, claimant worked in the organized crime unit, the
detective division, and the narcotics squad. His duties were
often dangerous, and he received numerous promotions and
decorations.
In October 1994, while at home preparing supper, claimant
experienced "a strange sensation, and . . . in a gradual manner,
almost like a cloud drifting over, [he] lost sight in [his] eye."
The vision loss occurred in claimant's left eye and lasted for
approximately thirty minutes.
Claimant went to see Dr. Mullen, his ophthalmologist, on
October 24, 1994. After examining claimant, Dr. Mullen referred
him to Dr. Tulou, claimant's primary care physician. On October
26, 1994, Dr. Tulou referred claimant to Retreat Hospital for
testing and to Dr. Davis, a vascular surgeon, for treatment. The
doctors diagnosed an atherosclerotic blockage in claimant's
carotid artery which had reduced blood flow in his brain and
caused his episode of vision loss. On November 10, 1994,
claimant was admitted to Retreat Hospital for surgery to correct
the blockage. While he was hospitalized, claimant also had
surgery on a similar blockage in his iliac artery. Claimant was
incapacitated until December 5, 1994, when he resumed his full
duties as a police officer.
2
On April 15, 1996, claimant filed a claim for benefits for
this injury. On May 6, 1996, claimant's counsel filed an amended
application for a hearing, requesting compensation for lost wages
and payment of lifetime medical costs.
It is undisputed that claimant has suffered from
hypertension, or high blood pressure, since the 1970s. Claimant
stated that he had never missed any time from work due to his
hypertension prior to October 1994. It is also uncontroverted
that claimant was a smoker who had been counseled over the years
about controlling his cholesterol and his weight. Claimant
testified that, until October 1994, he had never been told that
he had heart disease, vascular disease, or atherosclerosis. He
admitted that he had been told that he had high blood pressure;
however, he stated that the various doctors with whom he
discussed his high blood pressure did not indicate that his
condition was related to his work as a police officer.
Dr. Tulou described claimant's condition as "atherosclerosis
with cholesterol deposits compromising [blood] flow." Though "it
is certainly not exclusively a heart disease," there is "evidence
on the basis of a thallium scan of the heart that the tip thereof
is not receiving adequate blood." Dr. Tulou gave conflicting
statements on the relationship between claimant's work and his
condition. In a letter to claimant's attorney, Dr. Tulou had
"absolutely no reservation in stating that [claimant's] work as a
police officer in large measure contributed to his hypertension,"
3
and claimant's "hypertension is clearly a risk factor for any
atherosclerotic process." Therefore, Dr. Tulou felt that
claimant's "disability . . . was related to his work-related
hypertension."
However, in a later deposition, Dr. Tulou stated that
whether claimant's hypertension and atherosclerosis were caused
by his work in any way was "a philosophical question. Speaking
from a strictly scientific basis, no, not really. . . . I think
it remains speculative as to whether the job itself did it."
When questioned whether claimant's condition was caused by
stress, Dr. Tulou responded: "I just can't make a definitive
statement one way or the other how that contributed. . . . In
this particular case, I don't feel strongly one way or the other
that it did or did not create his condition or contribute to his
condition." Finally, when claimant's attorney queried whether,
in Dr. Tulou's opinion to a reasonable degree of medical
probability, claimant's work played a role in his hypertension,
Dr. Tulou answered: "Plausibly a role, yes."
Dr. Davis saw claimant on November 7, 1994, upon referral
from Dr. Tulou. He diagnosed claimant with "atherosclerosis
which had become symptomatic in his left carotid and right
iliac." He explained that "[a]therosclerosis . . . is a disease
of the arteries. It can involve the arteries of the heart and
create heart attacks; although, [claimant] showed none of these
symptoms at the time of his care." Regarding the relationship
4
between claimant's condition, atherosclerosis, and his work, Dr.
Davis indicated that "[t]he probable cause of his condition is
genetic and environmental, and I cannot rule out work stress as a
contributor to his diagnosis." He declined to comment on whether
claimant suffered from heart disease or whether claimant's work
as a police officer contributed to any such heart disease.
Dr. Hess reviewed claimant's medical history and answered
employer's questions. Dr. Hess offered a diagnosis of
"accelerated atherosclerotic cardiovascular disease" as a result
of "the hypertensive syndrome with a combination of hypertension,
cigarette smoking, and hypercholesterolemia." Regarding the
source of claimant's disease, Dr. Hess stated that "there is no
identifiable organic cause for his hypertension, and this more
than likely represents a genetic predisposition in combination
with his risk factors." As to the role of work stress in
claimant's condition, Dr. Hess indicated that "there is very
little objective proof that stress plays a major contributory
role." Consequently, "from a medical viewpoint, it is extremely
difficult to incriminate the stress of command on a police
officer in giving him his present problems."
Lastly, the record contains correspondence from Dr. Melhorn,
the doctor who diagnosed claimant's hypertension in the 1970s.
On July 15, 1996, Dr. Melhorn answered certain general questions
posed by employer. He stated that he recalled treating claimant
in the 1970s; that it was his "normal practice to discuss any
5
conditions which would require medication with a patient when
such a condition is discovered"; that he would typically discuss
with a patient the probable causes or contributing factors for
such a condition in order to help him avoid or reduce future
problems; that work-related stress "could be" a causal factor in
claimant's hypertension because "stress does play a part in
hypertension"; and that it was his normal practice to discuss the
stress factor with a patient. Dr. Melhorn responded, "Yes -
probably" to the inquiry: "Given that you knew he was a police
officer, that he had hypertension and needed medication for it,
do you believe that you most probably told the patient that work
related stress was a factor in his diagnosis of hypertension in
the 1970s?"
However, on July 16, 1996, Dr. Melhorn wrote a letter to
claimant's counsel addressing his specific concerns regarding his
treatment of claimant and his earlier statements:
I wish to state that I do not have the chart
or records of my treatment of [claimant], and
I do not have any independent recollection of
having discussed with [claimant] the question
of whether the hypertension with which I
diagnosed in him [sic] years ago was related
to his work.
When questioned about his past treatment with Dr. Melhorn,
claimant testified as follows:
I wouldn't stretch anybody's imagination to
think that I could recall a conversation in
the '70's, other than he stressed to me the
seriousness of taking the [blood pressure]
medicine and of going back to Dr. Gill to
have him monitor and be sure in fact that it
was a problem. As far as work, I can only
6
say that I have no recollection of him saying
that it was work related, and if he had, I
feel confident I would have followed up on
that.
The deputy commissioner awarded claimant compensation for
temporary total disability for the period November 10 through
December 4, 1995, together with related medical expenses.
The commission affirmed the decision of the deputy
commissioner. In doing so, it rejected "employer's argument that
the Deputy Commissioner erred in not permitting the claimant to
testify to his own opinion, as to whether stress was a factor in
causing his hypertension. Inasmuch as this is strictly a medical
issue, his testimony as to stress being a cause of high blood
pressure would have no probative value."
Next, the commission found that "there was insufficient
evidence of a communication or awareness of an occupational
disease more than two years before the filing of the Claim for
Benefits on April 15, 1996." Thus, the commission rejected
employer's statute of limitations defense.
The commission also determined that: "the medical records
sufficiently establish the presence of coronary artery disease.
. . . There is no medical evidence to the contrary, and this
element of the claimant's case is clearly established."
Additionally, noting the statutory presumption, the commission
found "no evidence that the Deputy Commissioner failed to
consider [employer's] rebuttal medical evidence." Rather, the
commission stated that "the rebuttal evidence was not persuasive
7
and . . . claimant's evidence was sufficient to bring him within
the purview of the presumption."
Finally, the commission found "no evidence that the Deputy
Commissioner failed to consider medical evidence from physicians
other than Dr. Tulou, regarding the treatment of the claimant's
hypertension." Accordingly, the commission considered any
factual conflicts in the evidence and concluded that "all the
medical evidence was weighed, and a finding was made on this
issue based upon the entire record and its conflicts so far as
they existed." The commission concluded that employer's evidence
was insufficient to overcome the statutory presumption that
claimant's work stress was causally related to his disability.
II. EXCLUDED TESTIMONY
Proffer facilitates appellate review of an exclusion of
testimony. "[W]hen testimony is rejected before it is delivered,
an appellate court has no basis for adjudication unless the
record reflects a proper proffer." Whittaker v. Commonwealth,
217 Va. 966, 968, 234 S.E.2d 79, 81 (1977) (citation omitted).
"[I]t is incumbent upon the proponent of the evidence to make a
proffer of the expected answer." Speller v. Commonwealth, 2 Va.
App. 437, 440, 345 S.E.2d 542, 545 (1986). Without a proffer,
"we are precluded from a consideration of this issue on appeal."
Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519,
521 (1992).
8
The rule is the same for administrative proceedings. 1 "When
a deputy commissioner refuses to admit evidence . . . 'the party
must proffer or avouch the evidence for the record.'" Daniel
Constr. Co. v. Tolley, 24 Va. App. 70, 79, 480 S.E.2d 145, 149
(1997) (quoting Smith v. Hylton, 14 Va. App. 354, 357, 416 S.E.2d
712, 715 (1992)). "[O]therwise, the appellate court has no basis
to decide whether the party was prejudiced by the deputy
commissioner's error." Daniel Constr. Co., 24 Va. App. at 79,
480 S.E.2d at 149 (citation omitted).
In the instant case, employer asked claimant whether, before
his loss of vision episode, he ever thought work stress was a
factor in his high blood pressure, a question clearly relevant to
his awareness of the possibility of an occupational disease. 2
1
In the administrative context, parties must proffer
excluded evidence to complete the record for review within the
agency as well as in the appellate court. The Workers'
Compensation Commission regularly relies on proffered evidence
and rejects claims for review in the absence of proffer. See,
e.g., Harrison v. Mary Washington Hosp., Claim No. 1755140
(Workers' Comp. Comm'n Jan. 23, 1997) (deputy commissioner
initially accepted report only as a proffer and later admitted it
as evidence); Roman v. Holland, Claim No. 1679334 (Workers' Comp.
Comm'n June 11, 1996) (commission could not review exclusion of
testimony in absence of proffer); Miller v. James City County,
Claim No. 1722233 (Workers' Comp. Comm'n Oct. 17, 1995)
(commission cannot determine whether error was harmful without
proffer); Jackson v. Castle Bros. Track & Roller, Claim No.
1629399 (Workers' Comp. Comm'n Aug. 24, 1994) (proffer
demonstrated error in exclusion of testimony; decided on other
grounds); Williams v. Nielson Constr. Co., Claim No. 1515279
(Workers' Comp. Comm'n Sept. 14, 1993) (review of proffer of
excluded testimony reveals exclusion was harmless error).
2
Though the question did not specify "work" stress, the
context shows that the parties were discussing the stress
associated with being a police officer.
9
The deputy commissioner ruled that claimant's reply would not be
material. Claimant did not answer the question, and employer did
not proffer any expected testimony. The content and timing of
claimant's knowledge of the relationship between his work and his
disease were clearly relevant to the statute of limitations
issue. However, we have "no basis to decide whether [employer]
was prejudiced by the deputy commissioner's error," because
employer failed to proffer the expected answer. Id.Consequently, we cannot consider the exclusion of this evidence
on appeal.
III. STATUTE OF LIMITATIONS
The Workers' Compensation Act provides that claimants must
file for compensation for occupational diseases within "two years
after a diagnosis . . . is first communicated to the employee."
Code § 65.2-406(A)(5). The statute "does not require that an
employee receive from a physician a communication that his
disease is work related." City of Alexandria v. Cronin, 20 Va.
App. 503, 508, 458 S.E.2d 314, 317 (1995), aff'd, 252 Va. 1, 471
S.E.2d 184 (1996). It requires only that he "learn that the
condition is an occupational disease for which compensation may
be awarded." Id. at 509, 458 S.E.2d at 317.
"Whether a diagnosis of an occupational disease was
communicated and when the communication occurred are factual
determinations." Uninsured Employer's Fund v. Mounts, 24 Va.
App. 550, 558, 484 S.E.2d 140, 144 (1997) (citing Roller v. Basic
10
Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989)). On
appeal, we will uphold the commission's findings of fact when
they are supported by credible evidence. See Mounts, 24 Va. App.
at 558, 484 S.E.2d at 144 (citing James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)).
Viewed in the light most favorable to claimant, who
prevailed before the commission, see Fairfax County v. Espinola,
11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990), the record
establishes that claimant had no knowledge of his heart disease
until after the October 1994 loss of vision episode.
Additionally, although claimant was aware that he had
hypertension in the 1970s, Dr. Melhorn's letter and claimant's
testimony about his treatment provide credible evidence that
claimant did not learn of any work connection to the condition or
that he had a compensable occupational disease before October
1994. Thus, based upon this record, we cannot hold as a matter
of law that the commission erred in finding that claimant's
application was not barred by the statute of limitations.
IV. COMPENSABLE OCCUPATIONAL DISEASE
To recover compensation for an ordinary disease of life as
an occupational disease, a claimant must establish "by clear and
convincing evidence, to a reasonable medical certainty, that [his
illness] arose out of and in the course of his employment." Code
§ 65.2-401. 3 However, the legislature "has accorded policemen
3
In 1997 Code § 65.2-401 was amended to delete "to a
reasonable medical certainty," and to add "(not a mere
11
who suffer from heart disease or hypertension preferential
status." Department of State Police v. Talbert, 1 Va. App. 250,
253, 337 S.E.2d 307, 308 (1985). Code § 65.2-402 creates a
rebuttable presumption that a causal connection exists between an
individual's employment as a police officer and certain diseases.
"A presumption is a rule of law that compels the fact finder
to draw a certain conclusion . . . from a given set of facts."
Martin v. Phillips, 235 Va. 523, 526, 369 S.E.2d 397, 399 (1988)
(citing Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320,
329 (1934)). "The primary significance of a presumption is that
it operates to shift to the opposing party the burden of
producing evidence tending to rebut the presumption." Martin,
235 Va. at 526, 369 S.E.2d at 399. Here, "[t]he effect of the
presumption is to eliminate the need for a claimant to prove a
causal connection between his disease and his employment." City
of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243,
244-45 (1992). "In the absence of competent evidence to the
contrary, the statutory presumption controls, and the claimant
prevails." Fairfax County Fire & Rescue Dep't v. Mitchell, 14
Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992).
To trigger the presumption, claimant need only prove his
occupation and his disability from heart disease or hypertension,
the diseases identified in Code § 65.2-402. Once claimant has
established his prima facie case, "[t]he presumption shifts the
probability)."
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burden of going forward with the evidence from the claimant to
his employer." Id.
Proof of claimant's disability from heart disease or
hypertension depends upon medical evidence. "A question raised
by conflicting medical opinion is a question of fact."
Department of Corrections v. Powell, 2 Va. App. 712, 714, 347
S.E.2d 532, 533 (1986). "Decisions of the commission as to
questions of fact, if supported by credible evidence, are
conclusive and binding on this Court." Manassas Ice & Fuel Co.
v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).
In the instant case, the commission found that "the medical
records sufficiently establish the presence of coronary artery
disease," under Code § 65.2-402. Dr. Tulou testified that a
thallium scan showed inadequate blood flow through the coronary
arteries. This testimony provides credible evidence in support
of the commission's finding. "The fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Wagner Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)
(citation omitted). Consequently, we cannot hold that the
commission erred in finding that the claimant established a
compensable occupational disease, utilizing the presumption
contained in Code § 65.2-402.
V. SUFFICIENCY OF EMPLOYER'S REBUTTAL EVIDENCE
In a recent decision, the Supreme Court reaffirmed the
13
standard for an employer seeking to rebut a law enforcement
officer's use of the causation presumption. "[I]n order to
overcome the statutory presumption, the employer merely 'must
adduce competent medical evidence of a non-work-related cause of
the disabling disease.'" Augusta County Sheriff's Dep't v.
Overbey, No. 962561 (Oct. 31, 1997), ___ Va. ___, ___ S.E.2d ___
(1997) (citing Doss v. Fairfax County Fire & Rescue Dep't, 229
Va. 440, 442, 331 S.E.2d 795, 796 (1985)). The Court announced
that
nothing in the statute or the several
decisions of this Court dealing with rebuttal
of this presumption suggests that the
employer has the burden of excluding the
"possibility" that job stress may have been a
contributing factor to heart disease.
Overbey, ___ Va. at ___, ___ S.E.2d at ___.
In the instant case, Dr. Davis indicated that the "probable
cause of [claimant's] condition is genetic and environmental,"
and Dr. Hess attributed claimant's cardiovascular disease to "a
genetic predisposition in combination with his risk factors."
Under the standard set forth in Overbey, this evidence of a
genetic cause sufficiently rebutted the statutory presumption
that claimant's heart disease is work-related.
Without the benefit of the statutory presumption to
establish a causal relationship between his job as a police
officer and his heart disease, claimant "had the burden of
'establishing by clear and convincing evidence, to a reasonable
degree of medical certainty,' that his [condition] arose out of
14
and in the course of his employment." Overbey, ___ Va. at ___,
___ S.E.2d at ___. Although claimant's job was undeniably
stressful, claimant failed to meet this burden. None of the
doctors opined to a reasonable degree of medical certainty that
job stress was a causative factor in the disease claimant
suffered. Cf. Duffy v. Commonwealth, 22 Va. App. 245, 251, 468
S.E.2d 702, 705 (1996) (employer's evidence failed to rebut
presumption by a preponderance of the evidence and the statutory
presumption thus controls). Thus, the evidence was insufficient
to establish "to a medical certainty" that his heart disease
arose out of his employment. Therefore, we are required to
reverse the commission's award and dismiss claimant's application
for benefits.
Reversed.
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