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.
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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
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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
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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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