Amherst County Bd. of Sup'rs v. Brockman

• Decision Date: 03 December 1982
• Docket Number: No. 812077,812077
• Citation: 297 S.E.2d 805,224 Va. 391
• Parties: COUNTY OF AMHERST BOARD OF SUPERVISORS, Et Al. v. Henry L. BROCKMAN. Record
• Court: Virginia Supreme Court

Page 805

297 S.E.2d 805

224 Va. 391

COUNTY OF AMHERST BOARD OF SUPERVISORS, Et Al. v. Henry L. BROCKMAN.

Record No. 812077.

Supreme Court of Virginia.

Dec. 3, 1982.

William B. Pierce, Jr., Richmond, for appellants.

J. Michael Gamble, Amherst (Donald G. Pendleton, Pendleton & Gamble, Amherst, on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

In this workmen's compensation case, the Industrial Commission made an award of benefits under Code § 65.1-47.1 ¹ for disability resulting from a heart attack. On appeal, the employer and its insurer contend that the Commission erred in its rulings that the claimant was entitled to the rebuttable presumption established by § 65.1-47.1, that the claim was not barred by the statute of limitations, and that the presumption was not rebutted.

Henry L. Brockman, Chief Investigator in the Sheriff's Department of Amherst County, had been employed by that Department since 1968. On July 2, 1976, after having experienced chest pains for four days, he was admitted to a hospital in Lynchburg for treatment of a myocardial infarction. After receiving treatment there and in the Duke University Hospital, Brockman, on the advice of his treating physician, Dr. Charles Sackett, returned to work in September of 1976, and continued to work until February 10, 1981, when he suffered another heart attack. He has not returned to work, and in May of 1981 he filed a claim for benefits against his employer, the Board of Supervisors of Amherst County, which was insured by Early Settlers Insurance Company (collectively, the employer).

Brockman had not been given a physical examination conducted and sponsored by his employer before either heart attack. His medical record shows that he had diabetes and hypertension prior to the 1976 attack.

The employer contends that the presumption of § 65.1-47.1 is inapplicable because there was no employer-sponsored physical examination of Brockman and the employer had no opportunity to have him examined after the statute became effective on July 1, 1976. In City of Waynesboro v. Harter, 222 Va. 564, 281 S.E.2d 911 (1981), we held that the employer is required to provide the physical examination and failure to do so will entitle the employee to the presumption. The claimant in Harter had been employed some two months after the effective date of § 65.1-47.1, but no physical examination had been provided for him by his employer. We observed that if the employer were not held to an affirmative duty to provide the examination, the presumption could be successfully defeated by the employer in frustration of the legislative intent. Id. at 567, 281 S.E.2d at 913.

Thus, under Harter, the failure of the employer in this case to conduct the examination required by § 65.1-47.1 may not be used to avoid the presumption. The employer attempts to distinguish Harter on the basis that in that case the employee was first employed two months after the effective date of the act in 1976 and did not suffer a heart attack until 1979. Therefore, argues the employer, in Harter there was sufficient notice of and an adequate opportunity to perform the required examination; in this case, by contrast, Brockman suffered a heart attack one day after the effective date of the Act.

These distinctions do not compel a different result. Any suggestion that the employer here had insufficient notice to be bound by the statute on July 1, 1976, is unsupportable. Code § 65.1-47.1 was enacted by the General Assembly during its session which ended on March 13, 1976. Acts 1976, c. 772. The statute itself does not contain an effective date. Therefore, the statute became effective on the first day of the fourth month following the month of adjournment, which was July 1. Va.Const., Art. IV, § 13. The very purpose of this postponement of the operation of statutes was so that "people might be informed of their contents before they became effective." City of Roanoke v. Elliott, 123 Va. 393, 401, 96 S.E. 819, 822 (1918).

The employer's argument that it had an inadequate opportunity to alter its practices in response to the new law is also unpersuasive. We agree with the employer that the required examination could not have been conducted after July 2, 1976, the date of the first heart attack. Brockman's hospitalization established that he suffered from heart disease from that date forward. There was no reason for the employer to conduct a physical examination after July 2 to determine what was a known fact; the employer was not required to perform a meaningless act.

The examination, however, could have been completed before July 2, 1976. The effective date of the statute, passed in March of 1976, was delayed by the Virginia Constitution "to allow litigants a reasonable time to acquaint themselves with provisions of statutes enacted at a given session in order that they may do whatever is necessary to protect their interests." Phipps, Adm'r. v. Sutherland, 201 Va. 448, 454, 111 S.E.2d 422, 426-27 (1959) (discussing earlier version of current constitutional provision). Although not bound by the statute until its effective date and under no duty to complete the required examination before that date, the employer, had it chosen to take precautions to avoid the presumption and protect its rights, clearly could have had Brockman, whom it had employed since 1968, examined before July 1, 1976.

The employer also had an opportunity, although admittedly limited, to examine Brockman after the effective date of the Act--an examination could have been performed on July 1. Furthermore, there is no indication in the record that the employer had taken any steps to protect its rights under the new statute. No evidence was offered, for example, showing that plans were approved or considered, as of July 1, to conduct examinations thereafter. After the effective date of the statute, failure to provide for the physical examination was at the employer's risk and will not preclude Brockman from claiming the benefit of the presumption.

Several additional considerations support our conclusion that the statute must be given complete effect beginning on July 1, 1976. First, Code § 65.1-47.1 refers to the "death of, or any condition or impairment of health of ... any member of a county ... police department." (Emphasis added). The statute thus contains language of general application, which indicates that its provisions should be applied comprehensively. See, e.g., Buenson Div. v. McCauley, 221 Va. 430, 433-35, 270 S.E.2d 734, 735-37 (1980); Allen v. Mottley Construction Co., 160 Va. 875, 887, 889-90, 170 S.E. 412, 417 (1933).

Second, the statute does not contain any language restricting its application. The employer would have us read a grace period into the statute. The statutory language, however, does not limit the presumption, as it easily could have done, to claims filed by persons who had been employed for at least a specified number of days after the passage of the Act and before the death, condition, or impairment on which the claim is based. We may not add to a statute language which the legislature has chosen not to include. See, e.g., Allen v. Mottley Construction Co., 160 Va. at 889-90, 170 S.E. at 417-18; Town of Danville v. Pace, 66 Va. (25 Gratt.) 1, 4-5, 26-27 (1874).

Third, Code § 65.1-47.1, as a part of the Workmen's Compensation Act, is remedial in nature--a factor which further supports a construction of its terms which will give it full effect. See, e.g., Barker v. Appalachian Power Co., 209 Va. 162, 166, 163 S.E.2d 311, 314 (1968).

Finally, we note...