COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARK S. ALLEN
MEMORANDUM OPINION *
v. Record No. 0897-97-1 PER CURIAM
AUGUST 26, 1997
CITY OF NORFOLK POLICE DEPARTMENT AND
CITY OF NORFOLK, TRIGON
ADMINISTRATORS, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.
(Philip R. Trapani, City Attorney; André A.
Foreman, Deputy City Attorney, on brief), for
appellees.
Mark S. Allen (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he was
not entitled to the benefit of the presumption contained in Code
§ 65.2-402(B). Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
Code § 65.2-402(B) provides that "hypertension or heart
disease . . . resulting in total or partial disability of [a city
police officer] . . . 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." This presumption applies
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
only if
persons entitled to invoke [it] have . . .
undergone preemployment physical examinations
that (i) were conducted prior to the making
of any claims under this title that rely on
[this] presumption[ ], (ii) were performed by
physicians whose qualifications are as
prescribed by the [employer], (iii) included
such appropriate laboratory and other
diagnostic studies as the [employer] may have
prescribed, and (iv) found such persons free
of . . . hypertension . . . or heart disease
at the time of such examinations.
Code § 65.2-402(D).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that in 1978, claimant
underwent a preemployment physical examination before beginning
employment with the City of Norfolk Police Department ("the
police department"). Dr. T. E. Smith of the Norfolk Public
Health Department performed the examination. On November 28 and
30, and December 1, 1978, claimant's blood pressure was measured
in sitting, standing, and lying positions. On December 15, 1978,
Dr. H. S. Wise noted that in all positions claimant's blood
pressure was "persistently hypertensive." Dr. Wise referred
claimant to a cardiologist. Dr. Wise concluded that based upon
the preemployment examination, claimant had "evidence of
persistent diastolic hypertension, ranging from moderate to
slight, and occasionally [had] systolic hypertension of a mild to
moderate degree . . . ."
2
On February 12, 1996, claimant suffered a silent inferior
myocardial infarction and a left ventricle aneurysm. Following
claimant's heart attack, Dr. Thomas Klevan, claimant's
cardiologist, reported that claimant had a history of
hypertension. In responding to an August 26, 1996 letter from
claimant's counsel, Dr. Klevan opined that claimant had
substantial exposure outside of his employment to risk factors,
including hypertension, elevated cholesterol, and a family
history of heart disease. These factors contributed to the
development of claimant's heart disease. Dr. Klevan could not
eliminate any of these risk factors from being a primary cause of
claimant's heart attack.
In denying claimant's application, the commission found that
the presumption did not apply because the medical records
revealed that claimant suffered from hypertension prior to his
employment by the police department and that claimant's
hypertension contributed to the development of his heart disease,
which ultimately resulted in his heart attack on February 12,
1996. Unless we can say as a matter of law that claimant's
evidence proved that he was free of hypertension prior to his
employment by the police department, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The results of the preemployment examination performed by
Dr. Smith, a qualified physician, and the conclusions drawn from
3
that examination by Dr. Wise, support the commission's finding
that claimant was not free of hypertension prior to his
employment by the police department. In addition, Dr. Klevan's
opinion established that claimant's hypertension contributed to
the development of his heart disease. Accordingly, we cannot say
as a matter of law that claimant met his burden of proving he was
entitled to the benefit of the presumption contained in Code
§ 65.2-402(B).
For these reasons, we affirm the commission's decision.
Affirmed.
4
Mark S. Allen v. City of Norfolk Police Dept.
Combined Opinion