COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
BRISTOL CITY FIRE DEPARTMENT AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 1537-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 13, 2001
ROY CARROLL MAINE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Williams, Lynch & Whitt, P.C.; Whitt &
Associates, on briefs), for appellants.
Michael A. Kernbach (Jack T. Burgess &
Associates, P.C., on brief), for appellee.
Bristol City Fire Department ("employer") contends the
Workers' Compensation Commission ("commission") erred in
awarding temporary total and medical benefits to Roy Carroll
Maine ("claimant"). On appeal, employer argues that it rebutted
the presumption afforded by Code § 65.2-402 and that claimant
failed to present evidence sufficient to prove that his heart
disease arose out of and in the course of his employment. For
the following reasons, we affirm the commission's decision to
award benefits to claimant.
I. BACKGROUND
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'Decisions of the
commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court.'" Id.
(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991)). "'The fact that there is
contrary evidence in the record is of no consequence.'" Id.
(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991)).
Claimant began work as a firefighter for employer in 1971.
He was not given a pre-employment physical; however, the results
of all later physicals done prior to his heart attack were
within normal limits. Claimant described his employment history
and the stressful situations he experienced as a firefighter. 1
He described a variety of additional jobs he held during his
employment as a firefighter in which he also experienced
stressful situations. During the time period of September
1
His duties included fighting fires, running the pumps,
public education, cleaning the station, working without the aid of
a respirator or with ineffective respirators, and exposure to
smoke and fumes as well as tobacco smoke in the station. He also
described emotionally stressful situations involving death, fatal
burns, and dismembered or crushed victims.
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27-30, 1996 claimant suffered a heart attack. 2 He was treated by
Dr. Mark A. Borsch, who performed two separate angioplasties.
Dr. Borsch released claimant to return to full duty employment
on March 31, 1997. The parties stipulated that claimant: (1)
was entitled to claim the presumption afforded by Code
§ 65.2-402; (2) was employed with Bristol City Fire Department
at all times relevant to this case; (3) suffered a heart attack;
and (4) was disabled for the period claimed. After considering
additional medical evidence and claimant's testimony, the
commission found, "we are not persuaded that the claimant's
family history and cholesterol levels were the causes of his
heart disease, and find that the employer has failed to
establish the second prong of the Bass test." Employer timely
appealed that decision.
2
This case has been delayed for several reasons. A decision
was rendered by the deputy commissioner on October 14, 1997
awarding benefits to the claimant prior to the Supreme Court's
decision in Augusta County Sheriff's Department v. Overbey, 254
Va. 522, 492 S.E.2d 631 (1997). The deputy commissioner's opinion
was appealed to the commission, which remanded the case for
application of the standard set forth in Overbey. The deputy
commissioner filed a new opinion on November 23, 1998. That
decision was appealed to the commission. Pending that appeal, the
Supreme Court clarified Overbey in Bass v. City of Richmond Police
Department, 258 Va. 103, 515 S.E.2d 557 (1999). The commission
applied Bass in their opinion of May 31, 2000. That opinion is
the basis of this appeal.
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II. MEDICAL TESTIMONY
A. Dr. Mark A. Borsch
Dr. Borsch became claimant's treating physician when he was
admitted to the hospital on September 30, 1996. His admittance
note states that prior to this episode, claimant was in good
health. Dr. Borsch noted a positive family history as a primary
risk factor for heart disease. In response to a questionnaire
sent by claimant's attorney, Dr. Borsch stated that family
history and low density lipoproteins (LDL) greater than 100
despite diet were claimant's risk factors of heart disease.
When asked if he could exclude occupational stress and exposure
to toxic fumes as additional risk factors, Dr. Borsch said he
could not exclude them because he "did not know of any good
evidence one way or the other." In a later letter to claimant's
attorney, dated July 28, 1997, Dr. Borsch clarified his position
on claimant's risk factors and the development of his heart
disease. "It is my opinion that his [claimant's] major risk
factors for the development of heart disease would include,
primarily, a positive family history, and a low density
lipoprotein at greater than 100 despite diet therapy. I do need
to make clear that, while I am not personally aware of any good
evidence pro or con, I cannot specifically exclude occupational
stress or exposures to toxic fumes as possible contributing
factors in his disease."
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B. Dr. Richard A. Schwartz
Claimant's counsel sent claimant for evaluation by Dr.
Schwartz. Dr. Schwartz examined claimant and reviewed his
medical records. In his July 3, 1997 report, he concluded that:
Mr. Maine was essentially free of the
traditional cardiovascular risk factors at
the time of his heart attack. I am
referring specifically to hypertension,
hypercholesterolemia and cigarette smoking.
He had as indicated an occupational risk
factor. There is also a borderline family
history in that his father sustained his
first myocardial infarction at age 57. By
history and the medical records he was free
of manifest disease through most of his
employment.
As we have discussed previously,
cardiovascular risk factors are correlative
and not causative. Occupational stress, as
in firefighting and law enforcement, is a
risk factor. Further risk cannot be
apportioned among the various risk factors
that my [sic] exist in a given individual.
At this point in knowledge, exposure to
toxic fumes would be aggravating but not a
risk factor for the development of
cardiovascular disease.
On August 17, 1997, responding to claimant's attorney after
reviewing medical reports from employer's expert witnesses, Dr.
Schwartz discounted the family history and LDL cholesterol
profile as risk factors. Addressing the role of stress in the
development of heart disease, Dr. Schwartz opines:
Turning to the issue of stress and its
etiologic role in coronary artery disease, I
would cite my previous reports and testimony
in these matters. Rather than fatigue the
Deputy Commissioner with my comments, I have
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enclosed a bibliography and reprints that
the commission may peruse as it sees fit.
Attached to that letter were several studies supporting the
increase in risk for the development of heart disease in
employees with low job control, job strain and Type A behavior. 3
C. Dr. Michael L. Hess and Dr. Stuart F. Seides
Employer sent claimant's available medical records to Drs.
Seides and Hess for review and evaluation. Both Dr. Seides and
Dr. Hess opined that job stress was not a risk factor in the
development of heart disease in firefighters. Dr. Hess stated:
There is actually evidence in the literature
that firemen do not have an increased
incidence of coronary artery disease. They
may argue the stress of being a fireman in
addition to the occupational exposure of a
firefighter may predispose to coronary
artery disease but again there is no
evidence to support this contention. . . .
There is absolutely no objective evidence
that stress does contribute to the
development of his coronary artery disease
whether it be in [sic] profession of being a
firefighter or any other profession. The
development of coronary artery disease is
due to the interaction of
hypercholesterolemia and his positive family
history.
3
Employer also asserts that the commission erred in
considering these studies relied on by Dr. Schwartz because they
were not properly in the record. Dr. Schwartz's report refers to
various statistical and analytical documents attached to his
report as the basis for his opinions that job stress may be a risk
factor in developing heart disease. We find no merit in
employer's argument, as employer cites no authority for this
position.
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Dr. Seides agreed:
Mr. Maine has coronary atherosclerosis with
obstructive coronary artery disease and a
documented myocardial infarction. The cause
of this 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.
Drs. Hess and Seides concluded that occupational stress was
not a factor in the development of claimant's heart disease.
III. ANALYSIS
Employer contends the commission erred in finding that it
failed to rebut the presumption of Code § 65.2-402 and in
crediting the medical opinions of claimant's doctors over those
provided by employer. We disagree.
The commission relied on Bass v. City of Richmond Police
Department, 258 Va. 103, 515 S.E.2d 557 (1999). Bass clarified
the decision in Augusta County Sheriff's Department v. Overbey,
254 Va. 522, 492 S.E.2d 631 (1997), and set out a two-prong test
employers must meet to overcome the presumption of Code
§ 65.2-402. "To overcome the presumption the employer must
show, by a preponderance of the evidence, both that 1) the
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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 112-13, 515 S.E.2d at 561-62 (emphasis added). The
commission found that employer failed to meet the second prong
of the Bass test.
Regarding this prong, both the claimant's
treating physician, Dr. Borsch, and the
employer's expert, Dr. Hess, identified
non-work related causes of the claimant's
heart disease. Dr. Seides, while
identifying some risk factors, failed to
specifically state that these risk factors
caused the claimant's disease. On the other
hand, Dr. Schwartz excluded both family
history and elevated cholesterol as risk
factors. Admittedly, Dr. Schwartz speaks in
terms of statistical correlates vice [sic]
causative factors. Thus, a positive
identification by Dr. Schwartz of a risk
factor may not constitute persuasive
evidence of a cause of a disease. The
converse, however, is not true. No
physician has identified a cause of the
claimant's disease without first finding the
causative factor to be a risk factor.
Accordingly, Dr. Schwartz' opinion that
family history and cholesterol are not risk
factors constitutes evidence that these
factors are not causes of the disease.
In weighing the opinion of Dr. Schwartz
against those of Drs. Borsch and Hess, we
note that Dr. Hess referred to the
claimant's father having suffered a heart
attack "in his early 50's." The evidence,
on the contrary, establishes that this heart
attack did not occur until age 57, which,
according to Dr. Schwartz, renders the
claimant's family history insignificant.
Dr. Borsch, similarly, merely sets forth
conclusory statements regarding the
claimant's family history, and failed to
disclose the facts leading to his
conclusions. Regarding the role of
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cholesterol, Dr. Schwartz again gives a
detailed analysis, based upon guidelines
promulgated by the National Cholesterol
Education Program, explaining why he did not
find the claimant's medical history to be
significant. By contrast, Drs. Hess and
Borsch give conclusory opinions, with little
analysis. As set forth above, Dr. Seides
gave no opinion regarding non-work related
causes of the claimant's heart disease but
merely listed some risk factors. On
balance, we are not persuaded that the
claimant's family history and cholesterol
levels were the causes of his heart disease,
and find that the employer has failed to
establish the second prong of the Bass test.
Credible evidence supports the commission's finding that
the employer failed to establish a non-work related cause of
claimant's heart disease. The medical opinions of Drs. Hess and
Seides simply attempt to discount the presumption of Code
§ 65.2-402, rather than evaluating whether work was a cause or
risk factor of the heart disease. We have recently held "that
because of the legislatively created presumption to the
contrary, Dr. Hess' and Dr. Seides' opinions regarding the
relationship between occupational stress and heart disease were
of no probative value to the issues in these cases." Medlin v.
County of Henrico Police, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (2001).
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
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reconsider the issue, for to do so would
defeat the intentions of the legislature.
Id. at ___, ___ S.E.2d at ___. Therefore, the commission did
not err in giving greater weight to the medical opinion of Dr.
Schwartz. He addressed claimant's situation specifically and
opined that his family history and cholesterol levels were not
risk factors in the development of his heart disease. The
commission, as fact finder, reviewed and rejected the other
opinions in accordance with our recent decision in Medlin.
"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 ___, ___ S.E.2d at ___.
We find sufficient evidence exists in the record to support
the commission's finding that claimant is entitled to benefits
under Code § 65.2-402 and affirm the decision.
Affirmed.
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