Henrico County Sheriff's Office v. Paul T. McQuay

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
HENRICO COUNTY SHERIFF'S OFFICE
MEMORANDUM OPINION* BY
v. Record No. 2241-98-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 17, 1999
PAUL T. McQUAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Williams, Lynch & Whitt,
on briefs), for appellant.
Malcolm Parks (Ruth E. Nathanson; Maloney,
Huennekens, Parks, Gecker & Parsons, P.C., on
brief), for appellee.
The Henrico County Sheriff's Office appeals the
commission's award of temporary total disability benefits and
medical benefits to Paul T. McQuay, a deputy sheriff, for an
occupational disease arising from his employment. Henrico
County argues that the commission erred in finding that (1)
McQuay's cardiac arrhythmia constitutes a disease; (2) it failed
to rebut the presumption of Code § 65.2-402; and (3) McQuay was
entitled to benefits under Code § 65.2-401. McQuay appeals the
commission's finding that he failed to establish a compensable
change in condition. We affirm the commission's rulings on the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
first two issues, and as a result, we need not address the other
two issues.
On appeal, we view the evidence in the light most favorable
to McQuay, the prevailing party before the commission. See
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,
339 S.E.2d 916, 916 (1986). So viewed, the evidence established
that McQuay was a fifty-six-year-old deputy sheriff responsible
for the care, custody and control of jail inmates and for
maintaining order and security inside the jail. When promoted
to sergeant, McQuay assumed administrative duties in addition to
those of a deputy. The responsibilities included scheduling
shifts, overseeing deputies, and processing paperwork for new
committals.
McQuay testified that the job entailed a high level of
stress. His work exposed him to physical violence and danger on
a regular basis. Deputies routinely conducted strip searches
and shakedowns to seize contraband and weapons from inmates who
often resisted. McQuay regularly intervened in altercations
between inmates and between inmates and deputies, and
occasionally he required medical attention for resulting
injuries. He feared being infected with communicable diseases
during his close dealings with the prisoners. While off-duty,
McQuay was required to carry his badge and sidearm and to
intervene if he observed criminal activity.
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During jail renovations in the summer of 1996, civilians
worked in the jail and required protection. The deputies had to
monitor carefully the tools used by construction workers so the
inmates would not gain access to them. McQuay testified that
those security concerns "raised the stress level probably two
hundred percent."
Other sources of stress for McQuay included the death of
his father in an automobile accident in 1993, and the murder of
his brother during a drive-by shooting in 1995. The next year,
McQuay experienced difficulties with two jail supervisors. The
evidence also proved McQuay smoked one pack of cigarettes a day
for more than twenty years and consumed twenty beers a week for
a period of years. After August 1996, he reduced his intake of
nicotine and alcohol by half. McQuay drank two cups of
caffeinated coffee per day and occasionally had a caffeinated
soft drink.
In August 1996, McQuay was diagnosed with hypertension,
cardiac arrhythmia, ectopic heartbeats, and dizziness. Dr.
Stephen L. Cavalieri, McQuay’s family physician, found him
disabled, and the commission awarded benefits for hypertension,
an occupational disease, from August 24, 1996 to September 22,
1996. The memorandum of agreement listed the nature of the
illness as "Questionable HBP."
McQuay returned to work on September 23, 1996 but became
disabled again on November 7, 1996. On February 7, 1997, he
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filed an application seeking an award based on a change in
condition. McQuay was fired when no one could determine when or
whether he could return to work. On April 21, 1997, he amended
his claim to include the alternative theory that he had
experienced a new occupational disease, cardiac arrhythmia.
The deputy commissioner granted benefits, and Henrico
County appealed. The full commission reversed the deputy's
finding that McQuay proved a change in condition, but it
affirmed the award of benefits finding that McQuay suffered from
a new condition, cardiac arrhythmia.
Henrico County argues that the commissioner erred in
finding that cardiac arrhythmia constituted a compensable
occupational disease. Determining whether a condition
constitutes an occupational disease is a mixed question of law
and fact and is subject to judicial review. See A New Leaf,
Inc. v. Webb, 257 Va. 190, 196, 511 S.E.2d 102, 104 (1999)
(citations omitted). In its decision, the commission was
required to resolve conflicting medical opinions. "A question
raised by conflicting medical opinion is a question of fact."
WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d
147, 152 (1997). "A finding of fact made by the Commission,
based on evidence deemed by it to be credible, is conclusive and
binding on us and . . . is not subject to review." Johnson v.
Capitol Hill, 189 Va. 585, 588, 54 S.E.2d 106, 107 (1949)
(citations omitted). "The fact that there is contrary evidence
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in the record is of no consequence." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). We give
deference to the commission's finding of fact in our review of
the legal issue.
McQuay experienced premature ventricular contractions, or
cardiac arrhythmias, because of some unknown triggering
mechanism. The arrhythmias were persistent and occasionally
caused a great deal of pain. The medical opinions differed on
whether McQuay's cardiac arrhythmia constituted an occupational
disease. Dr. Robert E. Sperry, McQuay's treating cardiac
electrophysiologist, classified this condition as a "type of
cardiac disease." Dr. Charles L. Baird, Henrico County's
consultant, classified the condition as an injury and not a
disease. He testified that the manner in which the heart was
affected constituted a mechanical versus a structural change
that would be classified as a disease. However, Dr. Baird
acknowledged that the American Heart Association classifies
cardiac "arrhythmias (disorders of heart rhythm)" under "other
cardiovascular diseases." The commission found Dr. Baird's
distinction in the source of McQuay's heart malfunction
insignificant. The record supports its finding that McQuay's
cardiac arrhythmia was a compensable disease.
Next Henrico County argues that the commission erred in
finding that it did not rebut the presumption that McQuay's
condition was work related. Code § 65.2-402(B) provides:
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Hypertension or heart disease causing . . .
any health condition or impairment resulting
in total or partial disability of . . .
deputy sheriffs . . . 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.
In Bass v. City of Richmond Police Dep't, 258 Va. 103, 515
S.E.2d 557 (1999), the Supreme Court held: "[t]o overcome the
presumption, the employer must show, by a preponderance of the
evidence, both that (1) the disease was not caused by his
employment, and (2) there was a non-work-related cause of the
disease." Id. at 114, 515 S.E.2d at 562-63 (citation omitted).
In this case, the commission considered both parts of that
two-part test. It noted that prior to Augusta County Sheriff's
Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), "the
employer had to pass a two-pronged test to rebut the
presumption. First, the evidence had to establish a probable
non-work-related cause of the disease. . . . Secondly, the
evidence had to exclude work-related factors as a possible
contributing cause of the disease."
The commission found that Henrico County satisfied one
prong of the test because it presented evidence that there were
non-work-related causes of the disease, primarily McQuay's
consumption of nicotine, alcohol, and caffeine. However, to
satisfy the second prong of the test, Henrico County had to
exclude McQuay's work as a factor in his condition. This it
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failed to do. To the contrary, the commission found "the
evidence is sufficient to prove [McQuay's] work was a proximate
cause of his cardiac arrhythmia."
The record supports the commission’s finding. McQuay's use
of nicotine, caffeine and alcohol contributed to the origination
and continuation of his cardiac arrhythmia. While Dr. Baird
said those factors caused McQuay's condition and Dr. Sperry said
smoking was the primary cause, neither doctor conclusively ruled
out work stress as a contributing factor. McQuay's first
primary physician, Dr. Cavalieri, reported on August 26, 1996
that "the exact etiology of his symptamology is unclear,
although it is very clear there is a lot of stress at work and
this is a trigger factor." Dr. Cavalieri reported on September
3, 1996 that "I think out of the blue, [McQuay] has developed
hypertension and I believe is related to job stress . . . ."
His subsequent family physician, Dr. Kimberly L. Bird, reported
on February 12, 1997 that there were "multiple contributing
factors. [McQuay] has an enormous amount of stress from
different areas . . . . Additionally, his work itself is very
stressful."
When medical opinions conflict, the general rule is that
when an attending physician is positive in his diagnosis of a
disease, great weight will be given by the courts to this
opinion. See McPeek v. P.W. & W. Coal Co., 210 Va. 185, 188,
169 S.E.2d 443, 445 (1969). Based on the entire record, the
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commission properly concluded that McQuay's cardiac arrhythmia
was caused, at least in part, by the significant stress he
experienced in the line of duty. Henrico County failed to rebut
the statutory presumption by excluding work stress as a
contributing factor.
For the reasons stated, we affirm the commission's award of
benefits. Because we affirm the award, we need not address
other issues raised.
Affirmed.
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