Bass v. City of Richmond Police Department

Present: All the Justices

CLAUDE A. BASS, JR.

v. Record No. 980612

CITY OF RICHMOND
POLICE DEPARTMENT
OPINION BY JUSTICE BARBARA MILANO KEENAN
June 11, 1999
JOHN B. PATTON, JR.

v. Record No. 980861

LOUDOUN COUNTY BOARD
OF SUPERVISORS

CITY OF HOPEWELL, ET AL.

v. Record No. 982126

MICHAEL W. TIRPAK

FROM THE COURT OF APPEALS OF VIRGINIA

We consolidated for argument three workers' compensation

appeals from the Court of Appeals. All three cases present the

question whether the Workers' Compensation Commission properly

concluded that the employers failed to present sufficient

evidence to overcome the occupational disease presumption

established in Code § 65.2-402(B). The facts in the three cases

differ and will be described separately.

Code § 65.2-402(B) of the Virginia Workers' Compensation

Act 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.

BASS v. CITY OF RICHMOND POLICE DEPARTMENT

In October 1994, Claude A. Bass, Jr., suffered a temporary

loss of vision in his left eye and was diagnosed with

atherosclerotic blockages of his left carotid and right iliac

arteries. He underwent surgery to correct these conditions and

was unable to work for about one month after the operation. At

the time, Bass was a police captain in the City of Richmond

Police Department (the employer), where he had worked since

1964. He had been diagnosed with hypertension in the early

1970's and had taken medication for that condition since the

mid-1980's.

In April 1996, Bass filed a claim for workers' compensation

benefits under Code § 65.2-402(B), seeking temporary total

disability benefits for his hypertension and vascular disease.

At a hearing before a deputy commissioner, Bass presented

evidence from Dr. Nicolas P. Tulou, his treating physician, who

first stated that Bass' employment "in large measure"

contributed to his hypertension and vascular disease, but later

testified that job stress was only a "plausible" factor in the

development of his condition. Dr. Tulou also stated that

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several non-work-related "risk factors" were present in Bass'

case, including a family history of heart disease, a lengthy

history of cigarette smoking, high blood cholesterol levels, and

excess weight.

Dr. Ronald K. Davis, a vascular surgeon who treated Bass,

stated that the probable causes of Bass' condition were "genetic

and environmental," but that he could not "rule out"

occupational stress as a contributing factor. Dr. Michael L.

Hess, a cardiologist who reviewed Bass' medical records at the

request of the employer, stated that "it was extremely difficult

to incriminate" job stress as the cause of Bass' condition.

The deputy commissioner awarded Bass compensation benefits,

and the Commission affirmed the award, noting that Bass

presented medical evidence that occupational stress "played some

part" in the development of his condition, and that there was

"no medical evidence to the contrary." The Commission agreed

with the deputy commissioner's conclusion "that, on a somewhat

conflicting record, the claimant's evidence was sufficient to

bring him within the purview of the presumption."

In a published opinion, the Court of Appeals reversed the

Commission's award of benefits and dismissed Bass' claim. City

of Richmond Police Dept. v. Bass, 26 Va. App. 121, 493 S.E.2d

661 (1997). The Court noted that two physicians attributed

Bass' condition to a genetic cause. Id. at 134, 493 S.E.2d at

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667. The Court stated that, "[u]nder the standard set forth in

[Augusta County Sheriff's Dept. v. Overbey, 254 Va. 522, 492

S.E.2d 631 (1997)], this evidence of a genetic cause

sufficiently rebutted the statutory presumption that claimant's

heart disease is work-related." Bass, 26 Va. App. at 134, 493

S.E.2d at 667. The Court held that Bass failed to prove by

clear and convincing evidence, under Code § 65.2-401, that his

disease arose out of and in the course of his employment. Id.

at 135, 493 S.E.2d at 667.

PATTON v. LOUDOUN COUNTY BOARD OF SUPERVISORS

In July 1994, John B. Patton, Jr., suffered a myocardial

infarction, or "heart attack," and underwent emergency cardiac

catheterization and angioplasty. The symptoms of the heart

attack began while Patton was working on the patrol division

evening shift in the Loudoun County Sheriff's Department (the

employer), where he had been employed for about 14 years.

Patton later had a recurrence of chest pain and, as a result,

had coronary artery bypass surgery.

Patton later filed a workers' compensation claim seeking

temporary total disability benefits for his heart disease. At a

hearing before a deputy commissioner, Patton introduced evidence

from Dr. Carey M. Marder, his treating cardiologist. Dr. Marder

noted that Patton had "multiple cardiovascular risk factors,"

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including a past history of cigarette smoking, a history of

adult onset diabetes, hypertension, a positive family history

for heart disease, and high cholesterol levels in his blood.

Dr. Marder stated that it was difficult to say how much of

Patton's coronary artery disease was related to the stress of

his employment, because "[s]tress as an independent risk factor

is very difficult to quantitate."

Dr. Richard A. Schwartz stated that occupational stress,

hypertension, a history of cigarette smoking, and possibly

diabetes, were identifiable factors causing Patton's heart

disease. Dr. Schwartz explained that coronary artery disease is

a "multifactorial process" and that none of the above factors

could be specifically implicated or excluded.

The employer presented the opinion of Dr. Stuart F. Seides,

a cardiologist, who stated that although Patton experienced the

onset of his heart attack while on duty as a police officer, "it

is highly likely that [the heart attack] would have occurred in

or around the same time frame regardless of his activities."

Dr. Seides stated that the presence of atherosclerosis is the

most important factor in the development of a myocardial

infarction, and that the "relationship of occupation to the

development of atherosclerosis is virtually nil."

The deputy commissioner awarded benefits to Patton. The

Commission affirmed the award, holding that the employer had not

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excluded work-related stress as a contributing cause of the

claimant's heart disease. The Commission noted that both Dr.

Marder and Dr. Schwartz concluded that "occupational stress was

one of the [causative] factors in the claimant's heart disease."

While the employer's appeal of the Commission's decision

was pending in the Court of Appeals, this Court decided the

Overbey case. Patton then filed a petition asking the Court of

Appeals to remand the entire case to the Commission for

reconsideration "under the Overbey standard." Citing Overbey,

the Court of Appeals held in an unpublished order that "the

evidence of claimant's risk factors and the medical opinions

offered constituted 'competent medical evidence of a non-work-

related cause' sufficient to rebut the presumption." Board of

Supervisors v. Patton, Record No. 2015-97-4 (Feb. 6, 1998).

However, since the Court was unable to determine whether Patton

had proved "by clear and convincing evidence that his heart

disease arose out of and in the course of his employment," the

Court remanded the case to the Commission to make specific

findings regarding the credibility of conflicting medical

evidence. Id.

CITY OF HOPEWELL v. MICHAEL W. TIRPAK

In February 1995, Michael W. Tirpak had a "stress test" as

part of a routine physical examination scheduled by his

employer, the City of Hopewell Police Department (the employer).

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During the test, Tirpak experienced a burning sensation in his

chest and shortness of breath, and an electrocardiogram revealed

some coronary abnormalities. A cardiac catheterization showed

blockages in three of his coronary arteries. As a result,

Tirpak had coronary artery bypass surgery. At the time of

surgery, Tirpak was a supervising sergeant of the evening patrol

shift for the City of Hopewell Police Department, where he had

been employed since 1973.

Tirpak filed a claim for temporary total disability

benefits based on his heart disease. At a hearing before a

deputy commissioner, Tirpak presented evidence from his treating

cardiologist, Dr. Ashok Kumar, who stated that Tirpak had a 30-

year history of smoking cigarettes, and that he had a family

history of premature coronary artery disease. Dr. Kumar also

stated that he could not exclude job-related stress as a cause

of Tirpak's heart disease. Dr. J. James Zocco, the cardiac

surgeon who performed Tirpak's surgery, stated that work-related

stress could not be excluded as a contributing factor in

Tirpak's heart disease. Dr. Zocco also stated that Tirpak had

other coronary risk factors, including a family history of heart

disease, a 30-year history of smoking cigarettes, hypertension,

and elevated blood cholesterol levels.

The employer presented evidence from Dr. Stuart F. Seides,

a cardiologist who reviewed Tirpak's medical records. Noting

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Tirpak's several "risk factors," Dr. Seides stated that Tirpak's

employment had "nothing whatsoever" to do with his coronary

artery disease. The employer also presented evidence from Dr.

Jack Freund, a specialist in internal medicine who reviewed

Tirpak's medical records. Dr. Freund stated that, based on

Tirpak's non-work-related "risk factors" for coronary artery

disease, Tirpak's heart disease and heart attack "would have

occurred no matter what type of employment he was engaged in."

The deputy commissioner awarded Tirpak benefits, and the

Commission affirmed the award, stating that it gave greater

weight to the opinion of the treating physicians, who had stated

that they could not exclude employment-related stress as one of

the contributing factors. The Commission stated that "[t]he

employer fails to rebut the [statutory] presumption where a work

related factor such as occupational stress is not excluded."

On appeal, the Court of Appeals held that the Commission's

language "indicated" that it had applied an incorrect standard,

which required the employer to exclude the possibility of a

work-related cause of Tirpak's disease without regard to whether

he had presented evidence of such a causal link. City of

Hopewell v. Tirpak, 28 Va. App. 100, 111-12, 502 S.E.2d 161,

166-67 (1998). The Court vacated the award of benefits and

remanded the case to the Commission for further proceedings on

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the issue whether the employer had overcome the statutory

presumption. Id. at 129, 502 S.E.2d at 175.

APPLICATION OF THE STATUTORY PRESUMPTION

In Code § 65.2-402(B), the legislature included

"[h]ypertension or heart disease" among those diseases that

"shall be presumed to be occupational diseases . . . unless such

presumption is overcome by a preponderance of competent evidence

to the contrary." In Page v. City of Richmond, 218 Va. 844,

847, 241 S.E.2d 775, 777 (1978), we explained that the purpose

of the statutory presumption is to establish by law, in the

absence of evidence, a causal connection between certain

occupations and death or disability resulting from specified

diseases. We held that a claimant firefighter was entitled to

compensation benefits because his employer had failed to

overcome the statutory presumption by showing 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. Id. at 847-

48, 241 S.E.2d at 777.

We again applied this two-part test in Fairfax County Fire

& Rescue Servs. v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981).

There, a firefighter who developed sarcoidosis, a disease

affecting the lungs, relied on the statutory presumption of

occupational disease provided by former Code § 65.1-47.1. The

employer produced medical testimony that the firefighter's

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employment did not cause his disease, but the employer failed to

present any medical evidence of a non-work-related cause of the

disabling disease. Since the employer failed to prove one of

the two elements required to overcome the statutory presumption,

we upheld the Commission's award of benefits. Id. at 539, 281

S.E.2d at 900; see also Berry v. County of Henrico, 219 Va. 259,

265, 247 S.E.2d 389, 392 (1978).

In Doss v. Fairfax County Fire & Rescue Dep't., 229 Va.

440, 331 S.E.2d 795 (1985), we applied the two-part test to a

firefighter's claim for benefits for a respiratory disease. The

claimant relied on the statutory presumption and presented no

evidence to counter the employer's medical evidence that 1) the

claimant's job did not cause his respiratory disability, and 2)

the claimant's condition was "more than likely a hereditary

phenomenon." Id. at 441-42, 331 S.E.2d at 795-96. We held that

the Commission did not err in ruling that the employer presented

sufficient evidence to overcome the statutory presumption, and

that the evidence concerning a "hereditary" cause was sufficient

to meet the Page requirement that the employer produce evidence

of a non-work-related cause of the disease. Id. at 442-43, 331

S.E.2d at 796-97.

In Overbey, the employer acknowledged the applicability of

the two-part test by conceding that, to overcome the statutory

presumption of Code § 65.2-402(B), the employer was required "to

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establish a non-work-related cause for [the claimant's] heart

condition and that job stress was not the cause." 254 Va. at

526, 492 S.E.2d at 633. The claimant contended, however, that

the presumption also imposed on the employer the burden of

"producing a preponderance of evidence excluding the possibility

that his heart disease was work related." Id.

In rejecting the claimant's contention, we quoted from

Doss, stating that, to overcome the statutory presumption, the

employer merely "must adduce competent medical evidence of a

non-work-related cause of the disabling disease." Overbey, 254

Va. at 527, 492 S.E.2d at 634 (quoting Doss, 229 Va. at 442, 331

S.E.2d at 796). This quotation was made in the context of our

holding that, to overcome the statutory presumption of Code

§ 65.2-402(B), an employer is not required to exclude the

possibility that job stress may have been a contributing factor

in the development of a claimant's heart disease. Id. at 527,

492 S.E.2d at 634. However, because that quotation did not

discuss both parts of the two-part test applied in Page and our

other decisions, some confusion has resulted regarding the

viability of both parts of that test. To clarify this matter,

we reaffirm the two-part test employed in Page and our other

decisions cited above concerning the elements of proof necessary

to overcome the statutory presumption of Code § 65.2-402(B).

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 The claimant in Overbey relied on the statutory presumption

of Code § 65.2-402(B) and did not present any medical evidence.

The employer presented medical evidence showing that 1) the

claimant's job was not a cause of his heart disease, and 2) the

disease was caused by several "risk factors," including a

history of heavy cigarette smoking, elevated cholesterol, a

family history of heart disease, and diabetes mellitus. Id. at

525, 492 S.E.2d at 633. Thus, our holding in Overbey

effectively applied the two-part test used in Page, while

rejecting the claimant's attempt to add another requirement to

the employer's statutory burden for overcoming the presumption

established by Code § 65.2-402(B).

ASSESSMENT OF EVIDENCE UNDER CODE § 65.2-402(B)

Under the statutory language, the employer may overcome the

presumption by producing "a preponderance of competent evidence

to the contrary." Code § 65.2-402(B). 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. See Newman, 222 Va. at 539, 281 S.E.2d at 899-900;

Page, 218 Va. at 847-48, 241 S.E.2d at 777. Thus, if the

employer does not prove by a preponderance of the evidence both

parts of this two-part test, the employer has failed to overcome

the statutory presumption. Id.

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 The determination whether the employer has met this burden

is made by the Commission after exercising its role as finder of

fact. In this role, the Commission resolves all conflicts in

the evidence and determines the weight to be accorded the

various evidentiary submissions. "The award of the Commission

. . . shall be conclusive and binding as to all questions of

fact." Code § 65.2-706(A); Falls Church Constr. Co. v. Laidler,

254 Va. 474, 478-79, 493 S.E.2d 521, 524 (1997); Ivey v. Puckett

Constr. Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986).

In providing that the statutory presumption may be overcome

by a preponderance of the evidence to the contrary, Code § 65.2-

402(B) implicitly directs the Commission as finder of fact to

consider all evidence on the issue of causation presented by the

claimant, as well as by the employer. When the Commission

determines that the employer has failed to overcome the

statutory presumption, the claimant is entitled to an award of

benefits under the Act. See Code §§ 65.2-400 to -407.

On appeal from this determination, the reviewing court must

assess whether there is credible evidence to support the

Commission's award. Celanese Fibers Co. v. Johnson, 229 Va.

117, 121, 326 S.E.2d 687, 690 (1985); Hercules, Inc. v. Gunther,

13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). Thus, unlike

the Commission, the reviewing court is not charged with

determining anew whether the employer's evidence of causation

13
should be accorded sufficient weight to constitute a

preponderance of the evidence on that issue. See Celanese

Fibers Co., 229 Va. at 121, 326 S.E.2d at 690; Caskey v. Dan

River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11

(1983); Macica v. ARA Servs. Tidewater Vending, 26 Va. App. 36,

41, 492 S.E.2d 843, 846 (1997); Shawnee Management Corp. v.

Hamilton, 25 Va. App. 672, 679, 492 S.E.2d 456, 459 (1997).

BASS v. CITY OF RICHMOND POLICE DEPARTMENT

PATTON v. LOUDOUN COUNTY BOARD OF SUPERVISORS

Based on the foregoing discussion, we disagree with the

employers' assertion that, since undisputed evidence showed

there were non-work-related causes of both claimants' heart

disease, this evidence was sufficient as a matter of law to

overcome the statutory presumption. As we have stated, to

overcome the statutory 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. See Newman, 222 Va. at

539, 281 S.E.2d at 899-900; Page, 218 Va. at 847-48, 241 S.E.2d

at 777. Thus, we conclude that the evidence of non-work-related

causes of Bass' and Patton's heart disease, standing alone, did

not overcome the statutory presumption, because that evidence

satisfied only one part of the two-part test.

14
 We disagree, however, with the claimants' assertions that

the records in their cases permit us to enter final judgment

reinstating the Commission's awards. In both cases, the

Commission failed to address the applicable two-part test and

state whether the employer had met its statutory burden to

overcome the presumption of Code § 65.2-402(B) by a

preponderance of the evidence. Therefore, we will reverse both

judgments of the Court of Appeals, vacate the Commission's

awards, and remand the cases to the Court of Appeals for remand

to the Commission to reconsider the evidence presented in

accordance with the principles expressed in this opinion.

CITY OF HOPEWELL v. TIRPAK

The employer first contends that the Court of Appeals erred

in upholding the Commission's determination that the claimant's

evidence established a communication of occupational disease on

February 17, 1995. We disagree with this contention, because

the Commission's factual findings are binding on appeal. See

Code § 65.2-706(A); Falls Church Constr. Co. v. Laidler, 254 Va.

at 478-79, 493 S.E.2d at 524; Ivey v. Puckett Constr. Co., 230

Va. at 488, 338 S.E.2d at 641. Here, the Commission relied on

the claimant's testimony that Dr. Kumar told him on that date

that his heart disease was caused by "stress on the job." Since

the Commission accepted the claimant's testimony on this issue,

15
we conclude that the Court of Appeals properly refused to

disturb the Commission's factual finding on appeal.

The employer next asserts that the Court of Appeals

"ignored the concession by Tirpak that Hopewell had rebutted the

heart disease presumption." We disagree with the employer's

argument, because the record shows that Tirpak conceded only

that "non-work-related causes [of his disease] were adduced by

the employer." He made no further concession, but merely

addressed the proper outcome of the case in the event the Court

of Appeals concluded that the employer had overcome the

presumption.

Next, we disagree with the employer's argument that it

would be denied due process if the statutory presumption is

upheld in the face of credible evidence of non-work-related

causes of the claimant's disease. In Newman, we stated that, by

establishing the statutory presumption, the legislature made a

public policy judgment allocating to the employer a burden of

proof that carried the ultimate risk of non-persuasion. 222 Va.

at 541, 281 S.E.2d at 901. We explained that the legislature's

decision "to cast that burden upon the employer infringes no

constitutional right," because the employer may introduce

evidence to overcome the statutory presumption. Id. Thus, the

employer's right of due process is not violated by requiring it

16
to produce a preponderance of the evidence in accordance with

the two-part test set forth above.

We also find no merit in the employer's central contention

in this appeal, that the employer met the burden of proof set

forth in Overbey to overcome the statutory presumption by

proving a non-work-related cause of Tirpak's disease. As stated

above, proof by a preponderance of the evidence of a non-work-

related cause of a claimant's disease satisfies only one part of

the two-part test applied in Overbey and several of our earlier

decisions. To overcome the statutory presumption, the employer

must also establish by a preponderance of the evidence that the

claimant's disease was not caused by his employment. See

Newman, 222 Va. at 539, 281 S.E.2d at 899-900; Page, 218 Va. at

847-48, 241 S.E.2d at 777.

Although we disagree with the Court of Appeals'

characterization of the Commission's decision, we observe that

the Commission did not state whether the employer met the

required two-part test in accordance with its statutory burden

of producing a preponderance of the evidence to overcome the

presumption. Therefore, on remand, the Commission will be

required to reconsider the evidence under that standard.

Finally, we note that we have considered the remaining

assignments of error raised by the employer. We conclude that

they do not require discussion because they are resolved by our

17
earlier analysis in this opinion, are beyond the scope of the

judgment appealed from, or are without merit.

For these reasons, we will affirm that part of the Court of

Appeals' judgment addressing the issues of subject matter

jurisdiction, * due process, date of communication of occupational

disease, and the absence of a concession by Tirpak regarding the

statutory presumption. We will vacate the balance of the Court

of Appeals' judgment, vacate the Commission's award of benefits

to Tirpak, and remand the case to the Court of Appeals for

remand to the Commission to reconsider the evidence presented in

accordance with the principles expressed in this opinion.

Record No. 980612 Reversed and remanded.
Record No. 980861 Reversed and remanded.
Record No. 982126 Affirmed in part,
vacated in part,
and remanded.

*
In its brief filed in this case, the employer withdrew its
assignment of error challenging the Commission's subject matter
jurisdiction.

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