COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CITY OF RICHMOND FIRE &
EMERGENCY SERVICES
MEMORANDUM OPINION *
v. Record No. 1916-96-2 PER CURIAM
JANUARY 28, 1997
CARL D. SHULER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ruth Nathanson; Midkiff & Hiner, on brief),
for appellant.
(Louis D. Snesil; McDonald & Snesil, on
brief), for appellee.
City of Richmond Fire & Emergency Services (employer)
contends that the Workers' Compensation Commission erred in
finding that employer's evidence failed to rebut the statutory
presumption that Carl D. Shuler's heart disease was occupational.
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.
Shuler, age fifty-six, worked thirty years as a firefighter
for employer. In addition to fighting fires, his job duties
involved responding to ambulance calls in life-threatening
situations. Shuler described his job duties as stressful.
On June 12, 1995, while mopping the fire station floor,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Shuler suffered a heart attack. He was admitted to the hospital
for emergency cardiac catheterization and a coronary artery
bypass.
In response to employer's insurer's questions, Dr. Harold J.
Levinson reported that Shuler had atherosclerotic coronary artery
disease. Dr. Levinson opined that the probable cause of Shuler's
heart condition was hypertension, hypercholesterolemia, and
smoking. Dr. Levinson also opined that Shuler's "hypertension
could in some way be related to his employment." He further
stated that "[e]xcept for the fact that [Shuler's] work is
stressful, I could not say with assurity that the disease is work
related."
Dr. Milan P. Krickovic also opined that the probable cause
of Shuler's coronary artery disease was tobaccoism, hypertension,
and hypercholesterolemia. He reported that "[r]egarding the risk
factor relationship to employment--there is no relationship to
his employment for tobaccoism or hypercholesterolemia, but
work-induced stress could have aggravated his hypertension."
Dr. Krickovic opined that he could rule out work as the probable
cause of Shuler's "arteriosclerotic coronary heart disease."
After reviewing Shuler's medical records at employer's
request, Dr. Michael L. Hess reported that the five major risk
factors for accelerated coronary artery disease are
hypercholesterolemia, hypertension, cigarette smoking, diabetes,
and a positive family history. Dr. Hess opined that "[i]t is
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extremely unlikely that any stress associated with [Shuler's] job
as a fireman contributed to the development of his coronary
artery disease." Dr. Hess stated that Shuler's significant
cigarette smoking, his hypercholesterolemia, and his positive
family history represent the etiology of his coronary artery
disease.
Code § 65.2-402 provides that "heart disease . . . resulting
in total or partial disability of [a firefighter] . . . shall be
presumed to be [an] occupational disease[], suffered in the line
of duty, . . . unless such presumption is overcome by a
preponderance of competent evidence to the contrary." Shuler
established prima facie entitlement and invoked the presumption
when he proved his occupation as a firefighter and the occurrence
of disability caused by one of the diseases identified by Code
§ 65.2-402. Fairfax Co. Fire & Rescue Dep't v. Mitchell, 14 Va.
App. 1033, 1035, 421 S.E.2d 668, 670 (1992). "The presumption
shifts the burden of going forward with the evidence . . . to his
employer." Id. To rebut the presumption, an employer must
establish by "a preponderance of competent evidence" a
non-work-related cause of the employee's heart disease. Code
§ 65.2-402. See also City of Norfolk v. Lillard, 15 Va. App.
424, 430, 424 S.E.2d 243, 246-47 (1992). Unless we can say as a
matter of law that employer's evidence sustained its burden of
proof, the commission's findings are binding and conclusive upon
us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
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S.E.2d 833, 835 (1970).
In holding that employer failed to rebut the presumption,
the commission relied upon the opinions of Drs. Levinson and
Krickovic. Drs. Levinson and Krickovic both stated that job
stress may have contributed to Shuler's hypertension, and they
both identified hypertension as a probable cause of Shuler's
coronary artery disease. As correctly noted by the commission,
compensability is established under the "two causes" rule, when
evidence proves that work is a contributing cause of the
disability, even if other causes also contribute. See Duffy v.
Commonwealth, 22 Va. App. 245, 251, 468 S.E.2d 702, 705 (1996).
In light of the opinions of Drs. Levinson and Krickovic and the
lack of evidence that Shuler had heart disease before he began
his stressful employment, the commission, in its role as fact
finder, was entitled to give little weight to the contrary
opinion of Dr. Hess. "Questions raised by conflicting medical
opinions must be decided by the commission." Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Accordingly, we affirm the commission's decision.
Affirmed.
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City of Richmond Fire, etc. v. Carl D. Shuler
Combined Opinion