Henrico County Division of Fire v. Estate of Woody

                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia


HENRICO COUNTY DIVISION OF FIRE
                                                 OPINION BY
v.   Record No. 1254-02-4                   JUDGE G. STEVEN AGEE
                                              DECEMBER 3, 2002
ESTATE OF WILLIAM A. WOODY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Ralph L. Whitt, Jr. (Michael P. Del Bueno;
            Whitt & Associates, on briefs), for
            appellant.

            Michael A. Kernbach (Burgess, Kernbach &
            Perigard, on brief), for appellee.


     The Henrico County Division of Fire ("the employer")

appeals a decision of the Workers' Compensation Commission ("the

commission") awarding benefits to the statutory beneficiaries

("the claimants") of William A. Woody ("Woody").       The employer

alleges the commission misapplied the legal precedent

implementing the statutory presumption of Code § 65.2-402 in

finding Woody's respiratory disease was caused by his work as a

firefighter and was thus a compensable occupational disease.       We

agree with the employer and reverse and remand the commission's

decision.
                           I.   BACKGROUND

     Woody served as a volunteer firefighter from age 15 until

he became a full-time paid firefighter in 1972 and continuing

until his death.   He smoked an average of three-quarters of a

pack of cigarettes a day from age 18 until approximately 1994

when he was diagnosed with squamous cell carcinoma (lung

cancer).   Woody died on September 4, 1996, survived by his wife

and daughter, the two statutory beneficiaries under Code

§ 65.2-515, who are the claimants.

                      A.   Procedural History

     Woody filed a claim for benefits on November 27, 1995,

alleging his respiratory disease as an occupational disease

which was contested by the employer.    A deputy commissioner

denied the claim but upon appeal, the full commission remanded

the matter for further consideration under Augusta County

Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997).

     On remand the deputy commissioner issued a second opinion

which again found that the employer's evidence overcame the

statutory presumption under the standards set forth in Bass v.

City of Richmond, 258 Va. 103, 515 S.E.2d 557 (1999), and that

the claimants then failed to carry their burden of proof by

clear and convincing evidence.    On appeal the commission

reversed the deputy commissioner in a June 22, 2001 opinion




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citing Medlin v. County of Henrico Police, 34 Va. App. 396, 542

S.E.2d 33 (2001) ("Medlin I"). 1

     The employer now appeals to this Court.

                        B.   Medical Evidence

     The deputy commissioner received abundant medical evidence

from treating physicians and experts with a variety of medical

specialties.

     For purposes of resolving the issue on appeal, it is

sufficient to recite that all the physician experts agreed

Woody's cigarette smoking was a cause of his lung cancer.    The

employer's experts, for various reasons, opined Woody's work as

a firefighter did not cause his lung cancer.    The claimants'

experts, other than Dr. Susan M. Daum, only opined that they

could not exclude Woody's work-related exposure to toxins as a

cause of the disease.   Dr. Daum explicitly opined Woody's

occupational exposure was a cause of his lung cancer.   No

evidence in the record established the quantity of Woody's

exposure to possible disease-causing substances or fixed the

toxicity of any exposure.




     1
       The matter was again remanded to the deputy commissioner
"for a determination of the benefits to be awarded and the entry
of an appropriate award." The deputy commissioner issued an
opinion entering an award to the claimants which the commission
affirmed on appeal by an opinion dated April 16, 2002. It is
this last opinion which is directly on appeal here, but as it
simply affirms the deputy commissioner's award calculation, the
basis at law is the commission's June 22, 2001 opinion.
                             - 3 -
     In summary, the evidence was in conflict as to whether

Woody's possible exposure to hazardous substances as a

firefighter was a cause of his lung cancer.

                              II.    ANALYSIS

     This case continues a long line of decisions dealing with

the application of the presumption as to death or disability

from certain diseases in Code § 65.2-402 as applied to

designated public safety employees, including firefighters like

Woody.   The statute establishes that respiratory diseases "shall

be presumed to be occupational diseases suffered in the line of

duty . . . unless such presumption is overcome by a

preponderance of competent evidence to the contrary."       Code

§ 65.2-402(A).

           [T]he 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. . . .

            *      *      *           *     *   *       *

           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. 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.

Bass, 258 Va. at 112-14, 515 S.E.2d at 562-63 (citations

omitted) (first emphasis added).

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     In the case at bar, the commission found, and the claimants

do not contest, that the employer met its burden as to the

second prong of the Bass test:   there was a non-work-related

cause of Woody's lung cancer which was his cigarette smoking.

We find the evidence in the record more than sufficient to

support the commission's finding on this issue.

     As to the first prong of the Bass test, whether Woody's

lung cancer was not caused by his employment as a firefighter,

the commission determined the employer failed to rebut the

presumption.

          By adopting the rationale set forth in
          Medlin, we conclude that by enacting the
          statutory presumption found in § 65.2-402,
          the General Assembly has determined that
          firefighters are exposed to properties in
          the course and scope of their employment
          that cause respiratory disease. See Medlin
          v. County of Henrico Police; Bristol City
          Fire Department v. Maine, supra. Although
          most experts have disputed the sufficiency
          of the unquantified occupational exposures
          in this case, no physician has disputed that
          the employee inhaled various toxins, which
          the legislature has determined cause
          respiratory disease, in the course of his
          career as a firefighter. Thus, we find that
          the employer has failed to show that work
          was not a cause of his lung cancer. In this
          regard, the presumption has not been
          rebutted.

VWC File No. 168-81-70 (June 22, 2001).

     The commission's decision was not based on a weighing of

the evidence in the record or a determination of causation in

fact as applied to Woody.   Instead, the commission held that the

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presumption precludes rebuttal by the employer where there is

any evidence that a statutorily qualified employee had any level

of exposure "to properties in the course and scope of their

employment that cause respiratory disease."

     The commission cites our decision in Medlin I as the basis

for its holding.    The commission misreads our decision.   Neither

Medlin I nor other case law permits the commission to convert

the statutory rebuttable presumption into a judicially created

conclusive presumption and make an award without weighing the

evidence on the merits as to causation for an individual

claimant.

     As this Court stated in County of Henrico Police v. Medlin,

37 Va. App. 756, 762, 561 S.E.2d 60, 62 (2002) ("Medlin II"),

Medlin I held only that "evidence that merely rebuts generally

the underlying premise of the statute, which establishes a

causal link between stress and heart disease, is not probative

evidence for the purposes of overcoming the presumption."

(Emphasis added).    Medlin I made no extrapolation from Code

§ 65.2-402 (or otherwise) upon which the commission could base

its declination to act as the trier of fact to determine whether

or not the employer's evidence rebutted the presumption that

Woody's duties as a firefighter were a cause of his lung cancer.

While the commission must exclude from consideration evidence

which only generally contradicts the premise of the presumption,

nothing in statute or case law relieves the commission from
                             - 6 -
examining the remaining evidence and then concluding from that

evidence whether the employer has carried its burden by a

preponderance of the evidence.

     The commission's decision fails to recognize the

significance of a rebuttable presumption of law.

          A rebuttable presumption of law is a
          provisional procedural assumption of a fact
          which is prescribed by a rule of the
          substantive law. It is a rule of the
          substantive law declaring that for
          procedural purposes a certain prima facie
          probative force will and shall (until
          evidence sufficient to prove the contrary is
          introduced) be provisionally attached to a
          given state of facts; that is, a certain
          inference shall be drawn from it, unless and
          until evidence sufficient to prove the
          contrary has been introduced.

Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320, 329

(1934) (emphases added).

     The commission's decision is in error as the commission

failed to follow the plain language of Code § 65.2-402(A), which

establishes a rebuttable presumption, not a conclusive

presumption.   Under the commission's rationale, any person who

worked as a statutorily designated employee and who contracted a

disease covered by the statute would conclusively be entitled to

an award upon production of any evidence of any exposure to any

potentially causative disease factor in the work environment.

It would be irrelevant whether that exposure had, in fact, any

causative effect on the claimant.   In effect, the commission

held that exposure, not proof of causation, was all a claimant
                             - 7 -
need show to render the rebuttable presumption a nullity by

conversion to a conclusive presumption.

       Had the General Assembly wished to write a conclusive

presumption into Code § 65.2-402, it could have done so.      It did

not.   Instead, the legislature has directed the commission to

determine cases according to the weighing of the evidence, and

the commission is without authority to change that statutory

provision.    Bass, 258 Va. at 114, 515 S.E.2d at 562-63.

       "[W]hen the language in a statute is clear and unambiguous,

we apply the plain meaning rule.     Under this rule, we endeavor

to ascertain and give effect to the intention of the legislature

from the words used in the statute."     Va. Coll. Bldg. Auth. v.

Lynn, 260 Va. 608, 651, 538 S.E.2d 682, 706 (2000).

                          III.    CONCLUSION

       The commission failed to follow the direction of the

statute by creating a conclusive presumption, thereby denying

the employer its statutory right to rebut the presumption.     In

cases under Code § 65.2-402, the commission must determine by a

weighing of the evidence as to an individual claimant whether

the employer has rebutted the statute.     It utterly failed to do

so in this case.   Accordingly, the decision of the commission is




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reversed and remanded for further proceedings in conformity with

this opinion. 2

                                           Reversed and remanded.




     2
       As the commission has yet to make a finding under the
proper legal standard as to whether the employer has rebutted
the statutory presumption under Code § 65.2-402, we do not
address arguments by the parties as to whether credible evidence
existed in the record to sustain a rebuttal of the presumption
or whether claimants carried their burden of proof upon
rebuttal.
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