Opinion
Record Nos. 0327-93-2 and 0440-93-2
August 31, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(William B. Pierce, Jr.; Daniel E. Lynch; Williams, Butler Pierce, on brief), for appellant.
(M. R. Reamy; H. Harrison Braxton, Jr.; Woodbridge Reamy; Willis, Braxton, Ashby Bass, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The City of Fredericksburg Police Department ("police department" or "the employer") contends that the Virginia Workers' Compensation Commission erred in awarding benefits to Valerie Jo Rosbach Dunn, the widow of Thomas B. Dunn, III ("Dunn") and to his two minor children. Dunn was employed by the police department as a police sergeant at the time of his death on January 19, 1991. The sole issue on this appeal is whether the employer's evidence rebutted the presumption provided by 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 affirm the commission's decision. Rule 5A:27.
Dunn had been employed by the police department since 1968. On December 1, 1967, he underwent a pre-employment physical examination. The record of this examination reflects no evidence of heart disease. In 1986, Dunn underwent an extensive physical examination, pursuant to the American Health Lifestyle Program, which revealed no evidence of heart disease or hypertension.
As a patrol sergeant, Dunn worked rotating shifts. His duties required him to be outside of his office in a patrol car involved in making arrests and participating in other street operations. He was also required to supervise other officers.
On January 19, 1991, while at home, Dunn experienced chest pains and was taken by rescue squad to the hospital. He was treated by cardiologist, Thomas E. Martyak. However, efforts to save Dunn's life failed and he died at 9:50 p.m. on the same day. Dr. Martyak opined that Dunn suffered an acute inferior wall myocardial infarction which caused his death.
Code § 65.2-402 provides a rebuttable presumption that, absent a preponderance of competent evidence to the contrary, a causal connection exists between an individual's employment as a salaried police officer and certain diseases, including heart disease. "The effect of the presumption is to eliminate the need for a claimant to prove a causal connection between his disease and his employment. In the absence of competent evidence to the contrary, the statutory presumption controls, and the claimant prevails." Fairfax County Fire Rescue Dep't v. Mitchell, 14 Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992).
In order to rebut the presumption, it is not sufficient that the employer merely adduce evidence that the heart disease was not caused by the employment; the employer must establish by competent medical evidence a non-work-related cause to rebut or overcome the statutory presumption that causation exists. If the rebuttal evidence fails to exclude a work-related factor as causing the heart disease. . ., the finding of the Commission as to causation is conclusive and binding on appeal.
Id. at 1036-37, 421 S.E.2d at 670-71 (citation omitted, emphasis in original).
Here, the employer presented rebuttal evidence pointing to causes of Dunn's condition other than work, including Dunn's heavy cigarette smoking. However, here, as in Mitchell, the employer's evidence failed to exclude work-related stress as a factor causing Dunn's myocardial infarction.
The employer relied on the opinions of Dr. Martyak and Dr. Jack Freund for the exclusion of stress as a cause of Dunn's death. However, as the commission pointed out in its January 26, 1993 Amended Opinion, Dr. Martyak's opinion that he did "not know of any association between employment as a police officer as being a cause of coronary artherosclerosis in acute myocardial infarction" was in response to the employer's insurance carrier's question as to whether Dunn's heart attack was caused by his smoking and positive family history or if his employment as a police officer was the cause of his death. The commission found that stress was never mentioned in the carrier's letter to Dr. Martyak. Thus, the commission's conclusion that Dr. Martyak was not able to give an informed opinion regarding causation which would rise to a preponderance of competent medical evidence is supported by credible evidence. Moreover, Dr. Freund's opinion eliminating Dunn's employment as a cause focused on the danger of cigarette smoking and did not mention stress. Nor did Dr. Freund examine Dunn or treat him.
The testimony of retired cardiologist Lake Westfall, which detailed Dunn's various risk factors, including stress on the job, provides credible evidence to support the commission's conclusion that the employer failed to exclude a work-related factor and failed to establish a non-work-related cause for Dunn's condition. Dr. Westfall testified that work-related stress certainly would have contributed to Dunn's condition. Moreover, Dr. Westfall could not rule out stress as a contributing risk factor to Dunn's condition.
Additionally, Dr. Michael O'Brien, who performed an arthrogram on Dunn's right knee on the day prior to his death, stated that this procedure, which was brought about by a work-related injury, was very painful and could have created stress for Dunn which indirectly contributed to his condition. This evidence also supports the commission's finding that work-related stress was not excluded as a possible cause of Dunn's condition.
For the reasons stated, we affirm the commission's decision.
Affirmed.