Metropolitan Washington Airport v. Patrick J Bailey ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY AND HARTFORD UNDERWRITERS
INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2790-01-4 JUDGE JAMES W. BENTON, JR.
AUGUST 13, 2002
PATRICK J. BAILEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
Michael A. Kernbach (Burgess, Locklin,
Kernbach & Perigard, PLLC, on brief), for
appellee.
The Workers' Compensation Commission entered an award on
behalf of Patrick J. Bailey, based upon its findings that his
employer, the Metropolitan Washington Airports Authority, failed
to rebut the presumption under Code § 65.2-402 that Bailey's
hypertension and heart disease were compensable as occupational
diseases. We affirm the commission's award.
I.
The evidence proved that Bailey was employed as a
firefighter for the Authority. On October 14, 1991, Bailey
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
visited his doctor and reported rapid heartbeats with
palpitations. On October 19, 1991, after engaging in a disaster
drill and then responding to an emergency medical call, Bailey
began to experience chest tightness and an accelerated heart
rate. He was taken to a hospital emergency room for treatment
and later received a diagnosis of hypertension and heart
disease.
We do not recite in minute detail the evidence because the
commission's opinion extensively recites the evidence in the
record and analyzes the reports of the physicians who treated
Bailey and those who reviewed Bailey's medical records.
Significantly, the commission noted "the deputy commissioner
. . . found . . . that [Bailey] did suffer from both
hypertension and supraventricular tachycardia and that he was
entitled to the statutory presumption that his condition was
causally related to his employment." The commission ruled that
"[t]hese findings were not appealed, and they are now the law of
the case." The record supports those findings and the
commission's ruling.
II.
The Authority does not dispute that Bailey is within the
category of employees entitled to the benefit of the statutory
presumption of occupational disease for a disability resulting
from hypertension and heart disease. Rather, the Authority
contends it rebutted the statutory presumption, the commission
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applied an erroneous legal standard, and the award is not
supported by the evidence.
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 v. City of
Richmond Police Department, 258 Va. 103, 114, 515 S.E.2d 557,
562-63 (1999).
Our review of the commission's decision is governed by well
established principles. As a fundamental principle, the Act
provides that "[t]he 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.
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Id. at 115, 515 S.E.2d at 563. 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); 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.
III.
In regard to Bailey's hypertension, the commission reviewed
all the medical evidence and made findings concerning each of
the physician's diagnoses and conclusions. For example,
Dr. Holland reported Bailey's hypertension was "systemic
hypertension of unknown cause." One of Dr. Israel's reports
described it as "hypertension of uncertain cause." Analyzing
the substance of each physician's report, the commission found
"from this evidence that the etiology or cause of essential or
systemic hypertension is unknown, and opinions suggesting a
cause are conjectural at best." These findings are supported by
credible evidence in the record.
The commission further "f[ou]nd that the 'conclusions' of
these physicians identifying [Bailey's] family history, obesity,
and high cholesterol as causative factors to be considered are
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offered only as possible risk factors, and they are not
probative to rebut the presumption as to a non-work-related
cause." Indeed, the reports variously contain references to
heritage, family history, and risk factors. We have previously
held that "the showing of 'risk factors' alone does not rebut
the statutory presumption and does not establish competent
medical evidence of a non-work-related cause of the disabling
disease." City of Norfolk v. Lillard, 15 Va. App. 424, 429, 424
S.E.2d 243, 246 (1992). Thus, the evidence in the record
supports the commission's findings that the Authority failed to
establish a non-work-related cause for Bailey's hypertension.
In addition to finding the evidence did not establish a
non-work-related cause of Bailey's hypertension, the commission
also found the evidence failed to prove Bailey's hypertension
was not caused by his employment. The commission specifically
found unpersuasive the general conclusions of Dr. Seides,
Dr. Holland, and Dr. Israel that work stress does not cause
hypertension. In so finding, the commission relied in part upon
Medlin v. County of Henrico Police, 34 Va. App. 396, 542 S.E.2d
33 (2001). We hold that the commission did not err in doing so
and in finding unpersuasive the physicians' general denials that
employment can be related to stress and heart disease. See id.
at 407, 542 S.E.2d at 38. The commission also noted, however,
that none of those physicians were aware of the extent to which
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Bailey was exposed to stress in his occupation. These findings
are supported by credible evidence.
Likewise, the commission reviewed each of the physician's
reports concerning Bailey's tachycardia. The deputy
commissioner found that the medical evidence was sufficient to
prove superventricular tachycardia. Indeed, Dr. O'Brien clearly
makes that diagnosis. Although the commission noted that the
Authority did not appeal this finding, the commission reviewed
the medical evidence and accorded greater weight to
Dr. O'Brien's diagnosis and discounted entirely the reports of
Dr. Seides, Dr. Holland, and Dr. Israel, which denied that
Bailey had superventricular tachycardia. When the commission
rejected the premise of the reports of these three doctors,
i.e., that Bailey did not have superventricular tachycardia, the
commission logically could find that those reports necessarily
failed to prove a non-work-related cause for Bailey's
superventricular tachycardia. Credible evidence supports that
finding.
In addition, the commission logically could find and did
find that the same medical reports, which denied even the
existence of superventricular tachycardia, also failed to prove
Bailey's superventricular tachycardia was not caused by his
work. The record contains credible evidence to support this
finding.
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In summary, the principle is well established that "[t]he
probative weight to be accorded [medical] evidence is for the
Commission to decide; and if it is in conflict with other
medical evidence, the Commission is free to adopt that view
'which is most consistent with reason and justice.'" C.D.S.
Const. Services v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236,
241 (1978). The record contains credible evidence to support
each of the commission's findings. Accordingly, we affirm the
commission's award of benefits.
Affirmed.
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