COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
TOWN OF PURCELLVILLE POLICE AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 2335-00-4 JUDGE LARRY G. ELDER
APRIL 10, 2001
MARTIN P. BROMSER-KLOEDEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Whitt & Associates, on
briefs), for appellants.
Charles W. O'Donnell for appellee.
The Town of Purcellville Police and the Virginia Municipal
Group Self-Insurance Association (collectively employer) appeal
from a ruling of the Workers' Compensation Commission
(commission) awarding temporary disability benefits to former
Purcellville Police Officer Martin P. Bromser-Kloeden
(claimant). On appeal, employer contends the commission
erroneously applied the presumption of Code § 65.2-402(B) to
award claimant benefits for a form of heart disease which the
commission found was caused by a virus. Employer argues first
that application of the presumption is unconstitutional in this
case under Fairfax County Fire & Rescue Services v. Newman, 222
Va. 535, 281 S.E.2d 897 (1981), both because no "natural and
rational nexus" exists between claimant's employment and the
virus and because the presumption is "for all practical
purposes" irrebuttable. Second, it argues that even if the
presumption may be constitutionally applied, employer's evidence
rebutted the presumption because the virus which led to
claimant's heart disease is "community acquired" and, therefore,
inherently non-work-related.
We hold that application of the presumption to claimant's
virally induced heart disease, coupled with evidence that
work-related stress made claimant more susceptible to the virus
and resulting heart disease, is constitutional under Newman.
Further, we conclude the evidence that claimant's heart disease
resulted from a virus did not prove a non-work-related cause of
the heart disease sufficient to rebut the presumption because
the evidence supported a finding that claimant could have
contracted the virus, and more probably than not did contract
it, through work-related exposure and that claimant's job stress
increased his susceptibility to the virus. Thus, the evidence
supports the commission's conclusion that employer failed to
prove a non-work-related cause, and we affirm the award of
benefits.
I.
BACKGROUND
Claimant was born in 1960 and began working as a police
officer for employer in 1990 after passing a pre-employment
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physical. He performed general law enforcement duties,
including responding to 911 calls and other calls for service,
dealing with drunks, making traffic stops and arrests, serving
warrants, and assisting the rescue squad with "sick person"
calls. During the course of his duties, he was required to
clean up bodily fluids, such as urine and vomit, left in his
police car by people he was transporting. He also experienced
incidents in which offenders spit on him. In the course of
arresting people, he often performed full-body pat-down searches
with his bare hands. The number of disorderly conduct and
drunk-in-public offenses increased in the summer months,
requiring claimant to make more arrests and transport more
offenders during that time frame.
During July 1997, claimant had a "very strong sore throat,"
which he thought was "unusual" for the summer months. No one
else in his immediate family was sick during that period of
time. On September 2, 1997, claimant saw his family
practitioner, Dr. Hegerich, because he was feeling "lousy."
Dr. Hegerich diagnosed claimant as having cardiomyopathy, an
injury to the heart muscle which results in stretching and less
efficient pumping, and he opined that its cause was "either
viral or idiopathic." While claimant was hospitalized for his
condition, Dr. Dean Pollock, a cardiologist, diagnosed
idiopathic cardiomyopathy with an onset date of September 2,
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1997. Dr. Pollock eventually told claimant he would be unable
to return to work as a police officer.
On February 3, 1999, claimant saw Dr. Richard Schwartz, a
cardiologist. After examining claimant and reviewing his
medical records, Dr. Schwartz diagnosed claimant as having
dilated cardiomyopathy complicated by atrial fibrillation.
Dr. Schwartz rendered the following opinion:
Of the four major etiologic correlates
for dilated myopathy, excessive alcohol,
excessive hypertension, pregnancy and post
viral, only the latter would seem to be a
reasonable explanation for this police
officer's problem. In my experience, police
officers are exposed to a wide variety of
populations and environmental conditions.
These would predispose [claimant] to viral
infections, as would any occupation dealing
with broad exposures to the general public.
Moreover, [claimant's] stressful occupation
would render [him] more susceptible to viral
as well as other infectious processes.
Therefore, it would appear that the most
reasonable explanation for [claimant's]
cardiomyopathy is that it is post-viral,
more likely than not, occurring as a result
of his occupation.
Dr. Schwartz opined that the sore throat claimant
experienced in July 1997 was a common manifestation of a virus
and that cardiomyopathy resulting from a virus typically
manifests itself four to six weeks later. Therefore, he
testified, the September 1997 diagnosis of virally induced
cardiomyopathy was consistent with the July 1997 symptoms
claimant had described. Because claimant had run a marathon in
June 1997, Schwartz believed claimant did not have
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cardiomyopathy at that time. Dr. Schwartz opined that "it's
probably a community acquired infection," a "droplet spread
infection," and that claimant's work "in close proximity of
individuals" made him "more likely to acquire a viral illness if
somebody else has it." Dr. Schwartz testified that he had
ridden with patrol officers and observed them making arrests.
He opined that the close contact occurring during such
encounters was of the type that would render patrol officers
more susceptible to contracting droplet spread infections. Dr.
Schwartz testified that he was unable "to rule out viral
exposure from [claimant's] work place as a police officer as the
source of the virus that caused his heart condition."
Dr. Pollock agreed with Dr. Schwartz's opinion of
causation, opining that claimant had none of the presumptive
risk factors for heart disease and, therefore, that claimant's
cardiomyopathy was most likely caused by a viral infection
contracted within the six-to-eight-week period prior to
claimant's September 1997 hospital admission.
Employer offered the written opinion of Dr. Michael Hess, a
cardiologist who reviewed claimant's medical records but did not
examine him. Dr. Hess responded "emphatically no" to the
question whether claimant's job contributed to his heart
condition because "police officers are not the only profession
'exposed to a wide variety of populations and environmental
conditions'" and "[t]here is not firm evidence that any
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particular virus that [claimant] would be exposed to in his
occupation as a police officer would cause his cardiomyopathy."
He also disputed Dr. Schwartz's claim that job stress made
claimant more susceptible to viruses and opined that his
cardiomyopathy "more than likely is a genetic defect."
Dr. Schwartz disputed Dr. Hess's opinion, noting that he
excluded other potential causes of claimant's cardiomyopathy by
history, physical examination and laboratory studies. Dr.
Schwartz noted that testing was available to determine whether
the cause of claimant's ailment was genetic but that no such
testing had been done.
The commission expressly rejected as speculative Dr. Hess's
opinion that claimant's cardiomyopathy was caused by a genetic
defect. On that basis, it concluded that employer failed to
offer "any credible non-work related causes of the claimant's
condition" and, therefore, had failed to rebut the statutory
presumption that claimant's heart condition was compensable.
The commission also rejected employer's contention that
application of the presumption was unconstitutional under the
facts of the case.
II.
ANALYSIS
The commission's "finding based upon conflicting expert
medical opinions is one of fact which cannot be disturbed."
Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337
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S.E.2d 307, 308 (1985). "On review, we determine whether the
evidence was sufficient to support the finding of fact reached
by the [c]ommission, not whether the evidence was sufficient to
have supported a contrary finding." Id. at 254, 337 S.E.2d at
309.
Based on these principles, employer concedes, as it must,
that the commission was free to reject Dr. Hess's opinion
regarding a genetic cause for claimant's disease and to accept
Dr. Schwartz's opinion that it was viral in origin. Employer
contends, however, that this finding actually requires the
conclusion that the presumption was rebutted because a virus is
inherently non-work-related. Thus, it contends, application of
the presumption under these facts is unconstitutional. Employer
further contends if the presumption is not unconstitutional,
evidence that the causative virus was "community acquired" is
sufficient to establish both that a non-work-related cause of
the disease existed and that the disease was not caused by
claimant's employment. In sum, employer's position hinges on
its argument that a disability caused by an ordinary virus which
may or may not have been contracted at work is a
non-work-related cause sufficient to render application of the
presumption unconstitutional or at least to rebut the
presumption. For the reasons that follow, we reject these
contentions and affirm the commission's award.
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The Workers' Compensation Act (the Act) provides that an
ordinary disease of life to which the general public is exposed
outside of the employment generally is not covered by the Act
unless a claimant can prove by clear and convincing evidence,
inter alia, that the disease arose out of and in the course of
employment and did not result from causes outside the
employment. Code § 65.2-401. However, under Code § 65.2-402, a
heart disease incurred by a police officer which results in
total or partial disability is "presumed to be [an] occupational
disease[], suffered in the line of duty, that [is] covered by
[the Act] unless such presumption is overcome by a preponderance
of competent evidence to the contrary." Code § 65.2-402(B).
"In order to establish a prima facie case, the claimant need
only prove his occupation and his disability from one of the
diseases identified by statute. The presumption [then] shifts
the burden of going forward with the evidence from the claimant
to the employer." City of Norfolk v. Lillard, 15 Va. App. 424,
427, 424 S.E.2d 243, 245 (1992).
In order to rebut the presumption, employer must prove by a
preponderance of the evidence both that (1) the claimant's
disease was not caused by his employment and (2) a
non-work-related cause of the disease existed. Bass v. City of
Richmond Police Dep't, 258 Va. 103, 115, 515 S.E.2d 557, 563
(1999). "When the commission determines that the employer has
failed to overcome the statutory presumption, the claimant is
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entitled to an award of benefits." City of Portsmouth Sheriff's
Dep't v. Clark, 30 Va. App. 545, 552, 518 S.E.2d 342, 345
(1999).
A.
CONSTITUTIONALITY OF PRESUMPTION IN CLAIMANT'S CASE
The Virginia Supreme Court examined the constitutionality
of a similar presumption applied to firefighters in Newman, 222
Va. at 539-41, 281 S.E.2d at 900-01, finding its application did
not violate the employer's due process rights under the facts of
that case. Quoting its earlier decision in Crenshaw v.
Commonwealth, 219 Va. 38, 42, 245 S.E.2d 243, 246 (1978), it
held that for the application of such a presumption to be
constitutional, "(1) a 'natural and rational' evidentiary nexus
must exist between the fact proved and the fact presumed and (2)
the presumption must be rebuttable." Newman, 222 Va. at 539-40,
281 S.E.2d at 900.
Applying the first prong of the test, it held as follows:
The legislature knew that the causes of
pulmonary and cardiac diseases are unknown
and that the medical community is split
regarding the impact of stress and work
environment on these diseases. Fire
fighters, in the course of their duties,
often inhale smoke, noxious fumes and other
harmful pollutants and, hence, are
particularly vulnerable to respiratory
diseases. The legislature's conclusion that
a fire fighter who contracts a respiratory
disease after he has started work suffers
from an occupational disease is a reasonable
and logical deduction. Thus, a "natural and
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rational nexus" exists between the
occupation and the disease.
Id. at 540, 281 S.E.2d at 900. Because the issue involved
"economic regulation based on information unavailable to [the]
court," it concluded that "the legislature's determination that
a rational connection exists should be accorded great weight."
Id. at 540, 281 S.E.2d at 901.
Applying the second part of the test, the Court rejected
the employer's contention that the presumption was "essentially
irrebuttable because the etiology of pulmonary sarcoidosis[, the
respiratory ailment from which the claimant Newman was
suffering,] [was] unknown." Id. at 541, 281 S.E.2d at 901.
It is of no constitutional significance that
the present state of medical science and the
healing arts places a greater burden on the
employer. . . . As long as the employer [is
free to] introduce evidence in rebuttal of
the presumption, the employer's
constitutional rights of due process have
been protected. The absence of evidence
[due to medical science's lack of
understanding of the causes of the specified
ailment or the difficulty in obtaining such
evidence] is a problem of proof and does not
automatically make the presumption
irrebuttable.
Id.
In claimant's case, a "natural and rational nexus" exists
between law enforcement occupations and heart disease in
general. Id. at 540, 281 S.E.2d at 900. As the Court observed
in Newman, the primary causes of many cardiac diseases are
unknown, and the medical community is split regarding the impact
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of stress and work environment on these diseases. Id.; see
also, e.g., Clark, 30 Va. App. at 553-56, 518 S.E.2d at 346-47
(discussing "risk factors" for coronary artery disease and
noting absence of evidence of definitive causes of such
disease); City of Richmond Fire Dep't v. Dean, 30 Va. App. 306,
312, 516 S.E.2d 709, 712 (1999) (noting that twenty to thirty
percent of "heart block" cases are of unknown origin); Duffy v.
Dep't of State Police, 22 Va. App. 245, 247, 468 S.E.2d 702, 703
(1996) (noting evidence that stress contributed to development
of police officer's coronary artery disease). The jobs of law
enforcement officers, like firefighters, are often stressful.
Because at least some members of the medical community believe
stress is a factor in the development of heart disease, a
natural and rational nexus exists between the occupation and the
disease, rendering Code § 65.2-402(B) constitutional on its
face.
Further, a "natural and rational nexus" exists between
claimant's duties as a police officer and cardiomyopathy, the
specific heart disease from which he suffers. Although some of
the evidence was conflicting, claimant presented testimony
accepted by the commission that his virally induced
cardiomyopathy was work-related because it was more likely than
not that he contracted it during close interpersonal contact
required by his employment and because the stress inherent in
his job made him more susceptible to contracting the virus.
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Thus, although heart disease that is virally induced may be
unusual, a "natural and rational" nexus exists between the
presumption and the fact to be proved under the facts of this
case.
Finally, the presumption was not irrebuttable under the
facts of this case. Here, as in Newman, employer's inability to
rebut the presumption resulted from the shortcomings of medical
science, i.e., the difficulties inherent in trying to pinpoint
the precise source from which one has contracted a virus and in
determining the impact of job stress on the ability of one's
immune system to resist such a virus. The employer's
difficulties in rebutting the presumption did not result from an
evidentiary rule which, "for all practical purposes," excluded
relevant evidence, which was the case with the presumption found
unconstitutional in Crenshaw, 219 Va. at 42, 245 S.E.2d at 246.
Thus, application of the presumption was not
unconstitutional under the facts of this case.
B.
VIRUS AS NON-WORK-RELATED CAUSE OF HEART DISEASE
For similar reasons, we affirm the commission's decision
that employer failed to rebut the presumption. The legal
principles are simple. Claimant established a prima facie case
of coverage by proving he was a police officer and that he
experienced a disability resulting from heart disease. Lillard,
15 Va. App. at 427, 424 S.E.2d at 245. The burden then shifted
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to employer to prove by a preponderance of the evidence both
that (1) the claimant's disease was not caused by his employment
and (2) a non-work-related cause of the disease existed. Bass,
258 Va. at 115, 515 S.E.2d at 563. Employer failed to meet that
burden.
The commission found, as employer concedes it was entitled
to do, that claimant's heart disease was caused by a virus. The
mere fact that claimant could have contracted the virus which
caused his cardiomyopathy from a source unrelated to his
employment is insufficient to establish the cause was, in fact,
non-work-related. Further, evidence before the commission
indicated that the nature of claimant's work as a police officer
in fact increased his risk of contracting the type of "community
acquired" virus which caused his heart condition because it both
(1) placed him in greater contact with the public and with their
various bodily fluids and (2) increased the overall level of
stress in his life, thereby rendering him more susceptible to
all viruses.
In arguing the constitutional question on brief, employer
concedes that even without the presumption, a claimant may
establish a connection between his employment and "all manner of
viruses and bacterial infections." Thus, employer's contention
that the unknown, "community acquired" virus which caused
claimant's cardiomyopathy was inherently non-work-related is
disingenuous. Carried to its logical extreme, employer's
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argument would prevent coverage for any disability resulting
from a virus spread among the general population, even if a
claimant could prove the required nexus between the virus and
his employment. If the legislature had wished to exclude from
the coverage of the presumption those forms of heart disease
with known causes or viral causes, it could have done so, but it
did not. Thus, we conclude credible evidence supports the
commission's decision.
For these reasons, we hold that application of the
presumption of Code § 65.2-402(B) was constitutional under the
facts of this case and that credible evidence supports the
commission's conclusion that employer failed to rebut the
presumption. Therefore, we affirm the commission's award of
benefits.
Affirmed.
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