COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
JOHN B. PATTON, JR.
OPINION BY
v. Record No. 1055-00-4 JUDGE JEAN HARRISON CLEMENTS
AUGUST 28, 2001
LOUDOUN COUNTY BOARD OF SUPERVISORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach (Jack T. Burgess &
Associates, P.C., on brief), for appellant.
Susan A. Evans (Jimese Pendergraft Sherrill;
Siciliano, Ellis, Dyer & Boccarosse, on
brief), for appellee.
John B. Patton, Jr., contends the Workers' Compensation
Commission erred in ruling that his employer, the Loudoun County
Board of Supervisors, presented sufficient competent evidence to
rebut the presumption under Code § 65.2-402(B) that his heart
disease was an occupational disease suffered in the line of
duty. We agree and reverse and remand this case.
As a preliminary matter, Patton contends the commission
exceeded the scope of the Supreme Court's remand order 1 and
violated the law of the case by reaching a different conclusion
on remand. We disagree. The Supreme Court specifically ordered
1
Technically, the remand order was ours. The Supreme
Court, after reversing our earlier judgment in this matter,
remanded the case to us for remand to the commission.
that the case be remanded to the commission "to reconsider the
evidence presented in accordance with the principles expressed
in" the Supreme Court's opinion in Bass v. City of Richmond
Police Department, 258 Va. 103, 515 S.E.2d 557 (1999). The
commission did exactly that. It reevaluated the evidence,
applying the correct legal standards expressly set forth in
Bass, and reached a decision contrary to its earlier decision.
We conclude, upon our review of the record, that the commission,
in reassessing the evidence and making appropriate findings of
fact in accordance with the directive of the Supreme Court, did
not exceed the Supreme Court's mandate or violate the law of the
case.
Patton further contends the commission improperly concluded
that his employer presented sufficient evidence to overcome the
occupational disease presumption established in Code
§ 65.2-402(B) of the Workers' Compensation Act.
Code § 65.2-402(B) 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 . . . salaried or volunteer
firefighters [and] . . . 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.
In order to rebut the presumption established by Code
§ 65.2-402(B), "the employer must show, by a preponderance of
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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
562-63. Hence, "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. at 114, 515 S.E.2d at 562.
Here, the evidence established that Patton worked
continuously for Loudoun County since the age of eighteen, the
first five years as a firefighter and then as a deputy sheriff.
In 1994, at the age of thirty-eight, he suffered an inferior
myocardial infarction while investigating a criminal matter.
According to Dr. Carey M. Marder, Patton's treating
cardiologist, the cause of the heart attack "was a thrombus in
the right coronary artery." He added:
How much of this is related to the stress of
a 2nd Lieutenant's job is difficult to say
. . . . Stress as an independent risk
factor is very difficult to quantitate.
Certainly, however, I would consider John to
have been in a considerably higher risk due
to his other cardiac risk factors.
Dr. Stuart F. Seides, a cardiologist who, at the request of
Patton's employer, examined Patton and reviewed some of his
medical records, noted that Patton was found shortly after the
heart attack to have "multi-vessel coronary atherosclerosis with
critical obstruction of the 'culprit' right coronary artery."
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Dr. Seides further noted that Patton's "symptom onset did occur
in the setting of his patrol duties," but added that
it is highly likely that the myocardial
infarction would have occurred in or around
the same time frame regardless of his
activities. Although "stress" is often
considered to be an important trigger for
myocardial infarction, most infarcts occur
in the absence of an identifiable
environmental event and in those cases where
there is an apparent association, it may be
simple coincidence. What is most important
is the presence of the underlying
substraight of atherosclerosis which is a
multifactorial process developing over a
period of many years in the setting of the
risk factors outlined in this case. The
relationship of occupation to the
development of atherosclerosis is virtually
nil.
Dr. Richard A. Schwartz, who, at Patton's request, examined
Patton, obtained a history from him and reviewed some of his
medical records, noted, in addressing Patton's coronary artery
disease, that, "[i]n this patient, occupational stress,
hypertension, and possibly diabetes are identifiable factors."
He continued:
Occupational stress is one of the risk
factors. It cannot be excluded with respect
to this patient. There are no congenital or
genetic causes that can be identified
either.
In summary, then Mr. Patton has
coronary artery disease that developed in
the course of his employment. This is a
multifactorial process and multiple factors
were present in this patient. None can be
specifically implicated or excluded.
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Upon reviewing the evidence on remand, the commission ruled
as follows:
In the present matter, we conclude that
the employer has rebutted the Code
§ 65.2-402 presumption. Admittedly, the
claimant's job was undeniably stressful.
The medical evidence, however, establishes
non-work related causes of the claimant's
heart disease, and establishes that the
claimant's disease was not caused by his
employment. Specifically, Dr. Seides opined
that the claimant's "relatively advanced
coronary atherosclerosis [was] caused by the
multiple aforementioned factors" including
diabetes mellitus, hypercholesterolemia, a
family history of premature coronary
disease, and a history of cigarette smoking.
Dr. Seides also opined that the
"relationship of occupation to the
development of atherosclerosis is virtually
nil."
* * * * * * *
We have carefully considered the fact
that Dr. Seides is not a treating physician,
and that he was not aware of the details of
the claimant's stressful job environment.
Nevertheless, his is the only physician to
have expressed a definite opinion of the
cause of the claimant's heart disease. His
opinion is logical in light of the numerous
non-work related factors acknowledged by the
other physicians. Accordingly, we conclude
that the employer has established by a
preponderance of the evidence non-work
related causes of the disease, and that work
was not a cause of the disease.
However, subsequent to the commission's reconsideration of
the evidence in this case on remand, we held as follows:
Code § 65.2-402 "has long been
recognized as a remedial statute, enacted by
the legislature to overcome the difficulty
that a [police officer] would otherwise have
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in proving causation." In enacting the
statute, "[t]he legislature knew that the
causes of . . . cardiac diseases are unknown
and that the medical community is split
regarding the impact of stress and work
environment on these diseases." By enacting
the statutory presumption, the General
Assembly resolved the split in medical
opinions in favor of the employee and
adopted the presumption that the stress of
working as a law enforcement officer causes
or contributes to the development of heart
disease. Testimony which merely refutes the
premise of such a legislatively enacted
presumption does not constitute proper
evidence in rebuttal. Where the General
Assembly has concluded that there is a
causal link between stress and heart
disease, it is not for the commission or the
courts to reconsider the issue, for to do so
would defeat the intentions of the
legislature. It thus follows that, "[i]t is
impermissible for the [commission] to accept
the opinion of a physician so disposed as
the basis for disallowing a claim." . . .
We, accordingly, hold 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
purposes of overcoming the presumption.
Medlin v. County of Henrico Police, 34 Va. App. 396, 406-07, 542
S.E.2d 32, 38-39 (2001) (alterations in original) (citations
omitted).
We recently applied our holding in Medlin to Dr. Seides'
medical opinion in Bristol City Fire Dep't and Virginia Mun.
Group Self-Ins. Ass'n v. Maine, 35 Va. App. 109, 542 S.E.2d 822
(2001). In that case, Dr. Seides opined regarding the claimant
firefighter's heart disease as follows:
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Mr. Maine has coronary atherosclerosis
with obstructive coronary artery disease and
a documented myocardial infarction. The
cause of the condition is a progressive
build-up of cholesterol-containing
atherosclerotic plaque in the coronary
arteries which surround the heart and
provide the heart muscle with blood.
Coronary atherosclerosis is a multifactorial
disease, in which a number of risk factors
may play a role in accelerating the
deposition of plaque material in
constitutionally susceptible individuals.
. . . His employment as a firefighter had
nothing whatsoever to do with the genesis of
either his underlying coronary
atherosclerosis or his myocardial
infarction. Any attempt to associate his
occupation and his disease is without
scientific merit.
Id. at 115, 542 S.E.2d at 825. We concluded that, under Medlin,
Dr. Seides' opinion did not constitute probative evidence for
purposes of rebutting the presumption of Code § 65.2-402 because
it "simply attempt[ed] to discount the presumption of Code
§ 65.2-402, rather than evaluat[e] whether work was a cause or
risk factor of the heart disease." Id. at 117, 542 S.E.2d at
826.
In this case, the commission relied wholly upon Dr. Seides'
medical opinion that the "relationship of occupation to the
development of atherosclerosis is virtually nil" to conclude
that Patton's heart disease was not caused by his employment.
That opinion, however, like Dr. Seides' opinion in Maine, merely
rebuts generally the underlying premise of Code § 65.2-402(B),
which establishes the presumptive causal link between
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occupational stress and heart disease. Accordingly, Dr. Seides'
opinion that the "relationship of occupation to the development
of atherosclerosis is virtually nil" is not probative evidence
for purposes of overcoming the presumption of Code § 65.2-402,
and the commission erred in relying on it.
Disregarding that evidence, we cannot conclude that the
employer has rebutted the presumption. Hence, we reverse the
commission's decision and remand this case "to the commission to
determine whether the employer has sufficiently rebutted the
presumption in light of the remaining probative evidence."
Medlin, 34 Va. App. at 408, 542 S.E.2d at 39.
Reversed and remanded.
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Willis, J., dissenting.
The commission's factual findings, if supported by credible
evidence, are binding. Jules Hairstylists, Inc. v. Galanes, 1 Va.
App. 64, 334 S.E.2d 592 (1985).
Dr. Stuart Seides, a cardiologist, after reviewing Patton's
medical records and examining him, reported, in pertinent part:
Mr. Patton has multiple risk factors for the
development of coronary heart disease. He
has documented hypertension, non-insulin
dependent diabetes mellitus,
hypercholesterolemia, a family history of
premature coronary heart disease . . . , and
previous tobacco abuse . . . . [H]e was
found to have multi-vessel coronary
atherosclerosis with critical obstruction of
the "culprit" right coronary artery . . . ,
but also well developed atherosclerotic
placquing in the left anterior descending
and left circumflex systems. . . . Mr.
Patton had relatively advanced coronary
atherosclerosis caused by the multiple
aforementioned factors. . . . [I]t is highly
likely that the myocardial infarction would
have occurred in or around the same time
frame regardless of his activities.
Although "stress" is often considered to be
an important trigger for myocardial
infarction, most infarcts occur in the
absence of an identifiable environmental
event and in those cases where there is an
apparent association, it may be simple
coincidence. What is most important is the
presence of the underlying substraight [sic]
of atherosclerosis which is a multifactorial
process developing over a period of many
years in the setting of the risk factors
outlined in this case. The relationship of
occupation to the development of
atherosclerosis is virtually nil.
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The commission held:
We have carefully considered the fact that
Dr. Seides is not a treating physician, and
that he was not aware of the details of
[Patton's] stressful job environment.
Nevertheless, he is the only physician to
have expressed a definite opinion of the
cause of [Patton's] heart disease. His
opinion is logical in light of the numerous
non-work related factors acknowledged by the
other physicians. Accordingly, we conclude
that the employer has established by a
preponderance of the evidence non-work
related causes of the disease, and that work
was not a cause of the disease.
This factual finding is supported by Dr. Seides' report. As it
was entitled to do, the commission believed Dr. Seides and gave
his findings and conclusions preponderating evidentiary weight.
The issue on appeal is whether those findings and conclusions,
so weighed, are sufficient to rebut the presumption set forth in
Code § 65.2-402.
The majority relies on Medlin v. County of Henrico Police,
34 Va. App. 396, 542 S.E.2d 32 (2001). In Medlin, we said:
We, accordingly, hold 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
purposes of overcoming the presumption.
Id. at 407, 542 S.E.2d at 39 (emphasis added).
Dr. Seides' salient findings and conclusions may be stated
thus:
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(1) Patton's coronary disease was caused exclusively by his
multi-vessel coronary atherosclerosis and did not derive from
any other cause.
(2) Patton's atherosclerosis did not derive from his
employment.
(3) Patton's atherosclerosis derived altogether from the
non-employment-related factors described in Dr. Seides' report.
In my view, Dr. Seides' report was not merely a general
rebuttal of the statutory presumption, but was, rather, a
specific attribution of Patton's coronary disease exclusively to
non-employment-related factors, satisfying the holding in Medlin
and sufficiently supporting the commission's decision.
I would affirm the judgment of the commission.
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