AMHERST COUNTY v. MARTIN, 1641-03-4, Unpublished (Va.App. 6-1-2004)

JUDGE ROSEMARIE ANNUNZIATA.

Amherst County Sheriff's Department and the Virginia Municipal Group Self-Insurance Association (employer) appeal the decision of the Virginia Workers' Compensation Commission awarding benefits to Edwin Phillip Martin to compensate him for disability resulting from heart disease. Employer contends on appeal that the commission erred by 1) incorrectly applying our decision inMedlin v. County of Henrico Police, 34 Va. App. 396, 542 S.E.2d 32 (2001), 2) holding that the employer failed to rebut the statutory presumption set forth in Code § 65.2-402, and 3) holding that Martin proved entitlement to compensation benefits for total disability for periods before October 27, 1993, and from September 11, 1996 to the present. For the following reasons, we affirm in part and reverse in part and remand the case to the commission.

I. Procedural Background

On October 27, 1993, Martin filed a Claim for Benefits seeking temporary total disability benefits and medical benefits for an acute myocardial infarction. The parties stipulated at an evidentiary hearing on November 6, 1997, that Martin's pre-injury average weekly wage was $345 and that he was entitled to invoke the presumption of Code § 65.2-402. Martin conceded and agreed that his claim must fail if employer rebutted the presumption created in his favor by Code § 65.2-402.

The deputy commissioner issued an opinion on December 24, 1997, denying Martin's claim. Although the deputy commissioner found that Martin did not have heart disease when he was hired, he found that the employer rebutted the presumption established by Code § 65.2-402. The deputy commissioner also determined that no physician advised Martin that his heart disease was causally related to his employment. Pursuant to Code § 65.2-403, the "date of diagnosis" was presumed to be the date the claim was filed, October 27, 1993. Martin petitioned for review before the full commission.

On April 8, 1998, the full commission remanded the case to allow counsel "the opportunity to develop evidence in light of the decision in [Augusta County Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997)]." No new evidence was presented.

A second opinion was issued by the deputy commissioner on August 13, 1998, which again denied the claim on the ground that the employer rebutted the statutory presumption. Martin again appealed to the full commission. The commission stayed the appeal, pending the Supreme Court's decision in Bass v. City of Richmond, 258 Va. 103, 515 S.E.2d 557 (1999). Martin argued on review that the employer had not rebutted the presumption established under Code § 65.2-402 and that the date of injury was February 26, 1993, the first date that the diagnosis of heart disease was made. In its opinion issued April 17, 2002, the commission upheld the deputy commissioner's finding that the date of diagnosis and injury for Code § 65.2-403 purposes was October 27, 1993. However, it held that the employer had failed to rebut the presumption established under Code § 65.2-402 and reversed on this ground. The matter was remanded to the deputy commissioner for an expedited hearing "to determine the extent of the award to which the claimant is entitled."

In the ensuing hearing before the deputy commissioner on April 24, 2002, both parties agreed that all collateral issues had been decided in the case by the commission's earlier findings or by the parties' stipulations. In an opinion issued on April 25, 2002, the deputy commissioner found that the evidence established disability, beginning September 11, 1996, to the present and continuing. The deputy commissioner reiterated his finding that October 27, 1993 was to be deemed the date of accident for this claim and held that Martin was entitled to benefits from October 27, 1993, to the present. The employer appealed the April 25, 2002 decision to the full commission which, on June 4, 2003, affirmed the decision but modified the award to reflect Martin's claimed periods of disability before October 27, 1993, and from September 11, 1996, to the present. This appeal followed.

II. Factual Background

We view the evidence and all reasonable inferences that may be drawn in the light most favorable to Martin as the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003). The record, so viewed, establishes that Martin was employed as a corrections officer for employer since June 18, 1990. On February 26, 1993, Martin, then age thirty-nine, awoke with chest pains and other symptoms. He was diagnosed with, and treated for, a myocardial infarction, or heart attack. Martin returned to work and suffered a second heart attack on July 19, 1993. Martin underwent bypass surgery, performed by cardiologist Dr. William H. Van Dyke, Jr. on July 23, 1993, and returned to work in October of 1993. Martin claims disability from this condition from February 26 through May 9, 1993; from July 19 through October 17, 1993; and beginning September 11, 1996 and continuing to the present.

The employer defended the claim on the ground that the presumption of Code § 65.2-402 did not apply because Martin was not free of heart disease when he was hired. It further argued that, in any event, the presumption was rebutted and that Martin did not have an occupational disease arising out of his employment. The employer disputed a diagnosis date of February 26, 1993, contending the diagnosis was not communicated to Martin at that time or thereafter. It argued that the communication date should be the date on which Martin's claim was filed. Finally, the employer denied that the medical evidence supported the alleged disability subsequent to September 11, 1996.

The record discloses the following medical evidence was before the commission: the medical reports and opinion of Drs. William H. Van Dyke, Jr., Thomas W. Nygaard, and Richard A. Schwartz, Stuart F. Seides, and Michael L. Hess. The testimony of Drs. Schwartz, Seides, and Hess was disregarded by the commission. That decision is not appealed by either party, and we will not consider their testimony on appeal.

Dr. Van Dyke was Martin's treating physician. He addressed the relationship between Martin's heart disease and employment in correspondence dated June 9, 1997. In that correspondence, he states that "occupational stress, while not a major risk factor, was a possible minor risk factor in the disease process." He does not define or otherwise characterize his use of the term "risk factor."

Dr. Nygaard, a consulting physician, testified about the causes of Martin's heart disease. Regarding Martin's non-occupational causes of his heart disease, Dr. Nygaard stated that "high cholesterol and family history caused Martin's heart disease and are not merely risk factors in his case." On the relationship between Martin's occupation and his heart disease, Dr. Nygaard testified, variously, as follows: 1) Martin would have "developed heart disease no matter what line of work he was in"; 2) Martin's job was not a cause of his heart disease; 3) "Stress related association with heart disease is controversial"; 4) "Most experts don't consider stress to be a risk factor"; 5) "I am not aware that I can ever say that a job is the cause of someone's coronary artery disease"; and 6) "I don't think it has been shown in a general sense that job stress caused his coronary artery disease."

In the opinion dated April 17, 2002, which determined that employer failed to rebut the statutory presumption, the full commission stated the following:

Although both [Dr. Van Dyke and Dr. Nygaard] clearly stated that the claimant was genetically predisposed to heart disease, and that his high cholesterol levels most likely caused his condition, both also stated that work-related stress "possibly" or "potentially" played at least a minor role in the development of the claimant's heart disease.

The commission subsequently cited and quoted from our decision in Medlin, concluding: "Thus, we find that the employer has failed to show that the stress associated with the claimant's work as deputy sheriff was not a cause of his heart disease. The statutory presumption has therefore not been rebutted."

III. The Commission Did Not Err in Finding Employer Failed to Rebut the Statutory Presumption

Employer contends that the commission erred because it presented sufficient evidence to overcome the statutory presumption that heart disease is an occupational disease affecting law enforcement officers. We disagree, finding that credible evidence supports the commission's determination.

Code § 65.2-402 places the burden of production and persuasion on the employer to prove, by a preponderance of the evidence, that the claimant's heart disease was not caused by his employment. It provides in relevant part:

Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of . . . (iii) members of county, city or town police departments [and] (iv) sheriffs and 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.

The Supreme Court has held that, "[t]o 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.

When reviewing a sufficiency of the evidence question, the function of our Court is to determine whether credible evidence supports the commission's decision, not to determine, de novo, whether employer met its burden of persuasion. See Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988). In this case, therefore, we must determine whether the commission could reasonably conclude that employer failed to overcome the statutory presumption in favor of Martin. See id.

Employer argues that it satisfied both prongs of the Bass test. Indeed, it is not seriously contended that the second requirement under Bass was not proved. The testimony before the commission established the non-work-related causes of Martin's disease included hypercholesterolemia and genetic predisposition.

Hypercholesterolemia is defined as elevated levels of cholesterol in the blood.

We conclude that employer's argument that it also met the first requirement of Bass is not supported in the record. The only evidence that Martin's employment did not cause his heart disease was presented by Dr. Nygaard. His testimony that Martin's occupational stress was potentially a secondary cause and not a primary cause of his heart disease, couched in "possibilities" and not "probabilities," clearly was insufficient to rebut the presumption. For the same reason, Dr. Van Dyke's testimony that occupational stress was a "possible minor risk factor in the disease process" fails to rebut the statutory presumption. We therefore find that the commission's determination that Dr. Nygaard's and Dr. Van Dyke's testimony did not rebut the statutory presumption is supported by credible evidence.

Although Dr. Nygaard also testified that Martin's occupation did not cause his heart disease, he explained the underlying premise of that proffered opinion, stating "I would have to say that it is not known that job stress has any relation to development of coronary artery disease." (Emphasis added). To emphasize the point, he also said, "I am not aware that I can ever say that a job is the cause of someone's coronary artery disease," and "I don't think it has been shown in a general sense that job stress caused his coronary artery disease." (Emphasis added). Viewing the evidence in a light most favorable to Martin, we find that the commission determined that Dr. Nygaard's opinion constituted an improper general rebuttal of the statutory presumption in violation of the holding in Medlin in light of both the totality of his testimony and the commission's citation to Medlin. The commission's citation to Medlin supports the conclusion that it gave no weight to Dr. Nygaard's testimony that Martin's heart disease was not related to his employment and that it considered the entire context of that opinion in light of the underlying reasons given by Dr. Nygaard. It is well-established that the commission can determine which portions of Dr. Nygaard's testimony to credit and which portions to disregard; on appeal, this Court will not substitute its judgment on the facts for that of the commission. Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). The weight to be accorded the evidence is within the commission's sole domain. Bass, 258 Va. at 114, 515 S.E.2d at 563. Giving due regard and deference to the fact-finding function of the commission, we find that it could reasonably conclude from credible evidence that Dr. Nygaard's testimony constituted an improper general attack on the legislatively-established presumption pursuant to our holding inMedlin. We will not disturb that determination on appeal.

Employer contends, however, that the commission concluded that it had failed to rebut the statutory presumption by misapprehending the testimony of Dr. Nygaard and Dr. Van Dyke. Specifically, employer contends that the commission improperly relied on Dr. Nygaard's testimony that occupational stress was potentially a secondary cause and not a primary cause of Martin's heart disease, and Dr. Van Dyke's testimony describing Martin's occupational stress as "possibly a minor risk factor." Employer reasons that, by relying on such evidence, the commission, in effect, precluded it from proving that it had overcome the statutory presumption because it improperly imposed on employer "the burden of excluding the `possibility' that job stress may have been a contributing factor to heart disease." Overbey, 254 Va. at 527, 492 S.E.2d at 634. Nothing in the record supports employer's contention. Furthermore, as noted above, the commission's conclusion that the employer failed to rebut the statutory presumption is founded on credible evidence. Under this Court's standard of review, the decision of the commission must therefore be affirmed.

Finally, it bears noting that the only testimony arguably in favor of a finding that employer had rebutted the presumption was that of Dr. Nygaard who stated that Martin's job was not a cause of his heart disease. However, the commission's consideration of that testimony must be evaluated in conjunction with the witness' attendant explanation which identified the basis for his opinion and which emphasized that nothing in the medical literature established a causal relationship between occupation and heart disease, an opinion that we found improper in Medlin. Viewing the evidence in the light most favorable to the employee, we affirm the commission's rejection of Dr. Nygaard's testimony on the ground that the legislature "has concluded that there is a causal link between stress and heart disease" and, therefore "it is not for the commission or the courts to reconsider the issue."Medlin, 34 Va. App. at 407, 542 S.E.2d at 38. For the reasons stated, we affirm the commission's determination that employer failed to overcome the statutory presumption in favor of Martin.

IV. Extent of Martin's Disability Award

Employer also contests the commission's awards of the following periods of disability: February 26, 1993 through May 9, 1993; July 19, 1993 through October 17, 1993; and September 11, 1996 to the present. Martin contends that sufficient evidence of disability supported the commission's award. We agree that sufficient evidence supported the commission's award for disability from September 11, 1996 to the present, but we do not agree that the award for disability prior to October 27, 1993 was proper.

A. The Award of Disability Benefits from September 11, 1996 to the Present

Employer contends that there was insufficient evidence proving Martin's disability from September 11, 1996 to the present. As stated above, when reviewing a sufficiency of the evidence claim, our function is to determine whether credible evidence supports the commission's determination. Campbell, 7 Va. App. at 222, 372 S.E.2d at 415. Here, we find that sufficient evidence supports the commission's award from September 11, 1996 to the present.

The evidence shows that in August 1996, Martin developed severe chest pains. He underwent repeat bypass surgery on September 17, 1996. Although reports subsequent to the bypass surgery suggest that Martin was steadily recovering, he again complained of chest pains in April 1997. On June 9, 1997, Dr. Van Dyke affirmatively indicated that Martin was disabled from work as a deputy sheriff. On September 25, 1997, Dr. Van Dyke stated that Martin was "severely debilitated due to left ventricular dysfunction." No other reports were filed after 1997 which discuss Martin's disability.

Employer contends the absence of evidence of Martin's disability since 1997 invalidates the commission's decision to award disability benefits from September 1996 to the present. We disagree because the medical evidence recited above constitutes credible evidence from which the commission could conclude that Martin proved his disability for the periods claimed. Furthermore, notwithstanding the fact that the record was reopened on remand to the deputy commissioner, employer did not present evidence in rebuttal of Martin's claimed disability at this final evidentiary hearing. Indeed, employer stipulated that the "Commission could enter its award based upon the record already before the commission." The employer cannot now be heard to complain that the commission relied on the evidence before it in determining Martin's award. See Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367, 585 S.E.2d 578, 581 (2004);Eure v. Norfolk Shipbuilding Drydock Corp., 263 Va. 624, 636, 561 S.E.2d 663, 670 (2002). We find that sufficient evidence supports the commission's award of disability, and we will not disturb it on appeal.

Employer also contends that the evidence failed to establish that Martin marketed his remaining work capacity. See Washington Metropolitan Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 655 (1985). However, as noted supra, we find that the evidence supports the commission's conclusion that Martin was totally disabled. Therefore, no proof was needed that Martin failed to market his remaining capacity.

B. The Award of Disability Benefits Prior to October 27, 1993

Employer contends that the commission erred in awarding benefits prior to October 27, 1993. We agree.

Code § 65.2-403(A) establishes that entitlement to compensation begins with the date of "communication of the diagnosis of an occupational disease." It further provides that medical benefits shall not begin more than fifteen days before the date of the accident or communication of the disease. Code § 65.2-403(B). Because no one communicated to Martin that his heart disease was an occupational disease, the commission determined that the "happening" of his "injury by accident" should be computed from the date the complaint was filed.

The finding that October 27, 1993 — the date Martin filed his complaint — constituted the date of the accident was a constant in this case. The commission approved that date as the date of the accident in the following opinions: (1) the deputy commissioner's opinion on December 24, 1997; (2) the deputy commissioner's opinion issued on August 13, 1998; (3) the full commission's opinion issued April 17, 2002; and (4) the deputy commissioner's opinion issued April 25, 2002. Martin never appealed this particular finding.

Nonetheless, in its June 4, 2003 opinion, the full commission reverted to the alternative holding of the deputy commissioner on August 13, 1998, to support its view that disability before October 27, 1993 had been proved and decided. This was clearly error, for if anything had been decided, October 27, 1993 had been established as the date of Martin's accident. The commission therefore erred as a matter of law in awarding Martin disability benefits before October 27, 1993 and medical benefits before October 12, 1993, in contravention of Code § 65.2-403(A)-(B). Accordingly, we reverse that portion of Martin's award.

For the foregoing reasons, we affirm in part and reverse in part the commission's decision of June 4, 2003, and remand for entry of an award consistent with this opinion.

Affirmed in part, reversed in part, and remanded.