Opinion
Record No. 2329-92-4
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
James P. Wheeler, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellant.
Michael A. Kernbach (Cohen, Dunn Sinclair, P.C., on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Commonwealth of Virginia/Department of State Police ("employer"), appeals an award by the Workers' Compensation Commission to Randolph A. Dyer, a Virginia state trooper, of temporary total disability benefits due to heart disease. The employer contends that the commission erred by applying a higher standard of proof than required by Code § 65.2-402 in order to rebut the presumption that the police officer's heart disease arose out of his employment. The employer argues that by requiring the employer to "persuasively exclude a work-related factor" as the cause of Dyer's heart disease and myocardial infarction, the commission required it to prove beyond a reasonable doubt that Dyer's heart condition was not caused by his employment. The employer further contends that the commission erred in finding the evidence insufficient to rebut the statutory presumption under Code § 65.2-402 that Dyer's heart disease and myocardial infarction arose out of his employment. Dyer requests that attorney's fees and costs be assessed against the employer on the ground that the employer's appeal lacks merit.
We hold that the commission did not err and affirm the commission's decision. We deny Dyer's requests to assess all the costs and attorney's fees pursuant to Code § 65.2-713.
I.
Code § 65.2-402 provides that "[h]ypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of . . . [a law enforcement officer] shall be presumed to be occupational diseases, suffered in the line of duty . . . unless such presumption is overcome by a preponderance of competent evidence to the contrary." Code § 65.2-402(B). In order to rebut the statutory presumption, the employer "must adduce competent medical evidence of a [specific] non-work-related cause of the [claimant's] disabling disease." Page v. City of Richmond, 218 Va. 844, 848, 241 S.E.2d 775, 777 (1978); see also Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442, 331 S.E.2d 795, 796 (1985); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 28, 300 S.E.2d 746, 748 (1983). "[I]t 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." Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985).
The claimant has the burden of establishing by a preponderance of the evidence the causal relationship between a disease claimed to be compensable and the employment. Code § 65.2-400;Talbert, 1 Va. App. at 253, 337 S.E.2d at 308. However, when a policeman or employee within the scope of Code § 65.2-402 proves the statutory requisites, the employer has the burden of going forward with the evidence to rebut the presumption by a preponderance of the evidence that the condition was suffered in the line of duty. Page, 218 Va. at 847, 241 S.E.2d at 777. The presumption stands until "the contrary be shown by competent evidence." Id. at 845 n. 1, 241 S.E.2d at 776 n. 1. Evidence that a number of non-work-related risk factors may have contributed to cause the employee's coronary disease or heart attack "does not rebut the statutory presumption and does not establish competent medical evidence of a non-work-related cause of the disabling disease." City of Norfolk v. Lillard, ___ Va. App. ___, ___, 424 S.E.2d 243, 246 (1992).
The commission did not impose a higher standard of proof upon the employer than is required by Code § 65.2-402 in order to rebut the statutory presumption that Dyer's heart disease arose out of his employment. The commission stated that once a claimant has established he is totally or partially disabled by heart disease and that he is within the class of employees afforded the benefit of Code § 65.2-402, the employee is entitled to a rebuttable presumption that his disability is a compensable occupational disease. The commission clearly recognized that the statutory presumption "may be rebutted if the employer can produce competent medical evidence of a non-work-related cause of [the claimant's] disease." The commission concluded: "We do not find, however, that apreponderance of the evidence rules out the occurrence of the employee's resulting myocardial infarction as not having been caused by Dyer's employment activity and stress." (emphasis added). The commission reiterated the same standard of proof for rebutting the statutory presumption that is provided for in the statute.
The employer, in support of its contention that the commission required a higher standard of proof than "by a preponderance of the evidence" in order to rebut the presumption, focuses upon the commission's statement that "the employer's rebuttal evidence does not persuasively exclude a work-related factor, work activity or stress, as a cause of the employee's infarction and disability." (emphasis added). This statement taken from the commission's opinion does not suggest that the commission required the employer to rebut the statutory presumption "beyond a reasonable doubt." In fact, the statement supports the view that the commission was aware that the employer had the burden of going forward with the evidence to "persuade" the fact finder that the coronary disease was caused by "a non-work-related cause." Reading the statement in the context of the commission's opinion, it is apparent that the commission found that, after weighing the evidence on both sides, it was not persuaded, by a preponderance of the evidence, that a non-work-related factor had caused Dyer's disability and, therefore, found that the presumption had not been rebutted that the heart disease was an occupational disease suffered in the line of duty. Therefore, we reject the employer's contention that the commission applied an improper standard of proof as is required under Code § 65.2-402 in order to rebut the statutory presumption.
II.
Credible evidence supports the commission's finding that the employer failed to prove by a preponderance of the evidence that Dyer's heart disease and myocardial infarction were caused by a non-work-related factor. Whether a disease is causally related to the employment or to other non-work-related factors is a finding of fact, and factual findings of the commission are binding on appeal if supported by credible evidence.Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988).
Dr. Robert N. Headly, Dyer's treating physician, testified that work stress was not a significant factor in the development of heart disease. Dr. Headly specifically ruled out Dyer's employment as a contributing cause to Dyer's heart disease and myocardial infarction. Dr. Richard A. Schwartz, a board certified cardiologist, stated, on the other hand, that Dyer's work activity was the cause of Dyer's myocardial infarction. Not only did Dr. Schwartz believe that the stress associated with his work was a contributing factor to the development of hypertension and coronary disease, he concluded that Dyer's exertion in the line of duty directly contributed to his having a myocardial infarction. Where there exist conflicting medical opinions as to whether the heart disease of a claimant was caused by the claimant's employment, the finding of the commission as to the causation is binding on appeal if supported by credible evidence. Estate of Montgomery v. City of Portsmouth Police Dep't, 4 Va. App. 525, 529, 358 S.E.2d 762, 764-65 (1987). Furthermore, Dr. Headly's opinion, which did not tend to establish the cause of Dyer's heart disease, but merely excluded employment as the cause, is not sufficient to rebut as a matter of law the statutory presumption under Code § 65.2-402 that Dyer's heart disease arose out of his employment. Id. at 528, 358 S.E.2d at 764; Talbert, 1 Va. App. at 253, 337 S.E.2d at 308.
As with Dr. Headly, neither Dr. Marta S. Sayers nor Dr. Donald R. Holsinger established the cause of Dyer's heart disease and myocardial infarction. At most, both doctors stated, as is generally the situation, that Dyer possessed certain non-work-related risk factors that statistically increased the probability that he would develop heart disease, but they could not state with any certainty that any or all of those risk factors caused Dyer's heart disease and myocardial infarction. Dr. Schwartz was the only doctor who positively stated that, in his opinion, Dyer's employment caused Dyer's coronary disease and myocardial infarction. For these reasons, the commission did not err in finding that the employer failed to prove by a preponderance of the evidence that a non-work-related factor caused Dyer's heart disease.
III.
We cannot, however, say that the appeal before us is frivolous. Accordingly, we deny Dyer's request for the assessment of attorney's fees and costs incurred in this appeal, other than those customarily provided by the commission and by statute.
Affirmed.