Bass v. City of Richmond Police Dept.

• Decision Date: 11 June 1999
• Docket Number: Record No. 982126.,Record No. 980612,Record No. 980861
• Citation: 515 S.E.2d 557,258 Va. 103
• Court: Virginia Supreme Court
• Parties: Claude A. BASS, Jr. v. CITY OF RICHMOND POLICE DEPARTMENT. John B. Patton, Jr. v. Loudoun County Board of Supervisors. City of Hopewell, et al. v. Michael W. Tirpak.

515 S.E.2d 557

258 Va. 103

Claude A. BASS, Jr. v. CITY OF RICHMOND POLICE DEPARTMENT.

John B. Patton, Jr. v. Loudoun County Board of Supervisors.

City of Hopewell, et al. v. Michael W. Tirpak.

Record Nos. 980612, 96.

Supreme Court of Virginia.

June 11, 1999.

Christopher A. Jones (Malcolm Parks; Maloney, Huennekens, Parks, Gecker & Parsons, on briefs), Richmond, for appellant in Record No. 980612.

Charles F. Midkiff (Johua M. Wulf; Midkiff & Hiner, on brief), Richmond, for appellee in Record No. 980612.

Michael A. Kernbach (Jack T. Burgess & Associates, on brief), Fairfax, for appellant in Record No. 980861.

Susan A. Evans (Siciliano, Ellis, Dyer & Boccarosse, on brief), Fairfax, for appellee in Record No. 980861.

Ralph L. Whitt, Jr. (Daniel E. Lynch; Williams, Lynch & Whitt, on briefs), Richmond, for appellants in Record No. 982126.

Malcolm Parks, III (B. Mayes Marks, Jr., Hopewell; Christopher A. Jones; Maloney, Huennekens, Parks, Gecker & Parsons, Richmond, on brief), for appellee in Record No. 982126.

Amicus Curiae: Virginia Trial Lawyers Association (Peter M. Sweeny, on brief), Chantilly, in support of appellees.

Present: All the Justices.

KEENAN, Justice.

We consolidated for argument three workers' compensation appeals from the Court of Appeals. All three cases present the question whether the Workers' Compensation Commission properly concluded that the employers failed to present sufficient evidence to overcome the occupational disease presumption established in Code § 65.2-402(B). The facts in the three cases differ and will be described separately.

Code § 65.2-402(B) of the Virginia Workers' Compensation Act provides, in relevant part:

Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of ... (iii) members of county, city or town police departments [and] (iv) sheriffs and deputy sheriffs ... 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.

BASS v. CITY OF RICHMOND POLICE DEPARTMENT

In October 1994, Claude A. Bass, Jr., suffered a temporary loss of vision in his left eye and was diagnosed with atherosclerotic blockages of his left carotid and right iliac arteries. He underwent surgery to correct these conditions and was unable to work for about one month after the operation. At the time, Bass was a police captain in the City of Richmond Police Department (the employer), where he had worked since 1964. He had been diagnosed with hypertension in the early 1970's and had taken medication for that condition since the mid-1980's.

In April 1996, Bass filed a claim for workers' compensation benefits under Code § 65.2-402(B), seeking temporary total disability benefits for his hypertension and vascular disease. At a hearing before a deputy commissioner, Bass presented evidence from Dr. Nicolas P. Tulou, his treating physician, who first stated that Bass' employment "in large measure" contributed to his hypertension and vascular disease, but later testified that job stress was only a "plausible" factor in the development of his condition. Dr. Tulou also stated that several non-work-related "risk factors" were present in Bass' case, including a family history of heart disease, a lengthy history of cigarette smoking, high blood cholesterol levels, and excess weight.

Dr. Ronald K. Davis, a vascular surgeon who treated Bass, stated that the probable causes of Bass' condition were "genetic and environmental," but that he could not "rule out" occupational stress as a contributing factor. Dr. Michael L. Hess, a cardiologist who reviewed Bass' medical records at the request of the employer, stated that "it was extremely difficult to incriminate" job stress as the cause of Bass' condition.

The deputy commissioner awarded Bass compensation benefits, and the Commission affirmed the award, noting that Bass presented medical evidence that occupational stress "played some part" in the development of his condition, and that there was "no medical evidence to the contrary." The Commission agreed with the deputy commissioner's conclusion "that, on a somewhat conflicting record, the claimant's evidence was sufficient to bring him within the purview of the presumption."

In a published opinion, the Court of Appeals reversed the Commission's award of benefits and dismissed Bass' claim. City of Richmond Police Dept. v. Bass, 26 Va.App. 121, 493 S.E.2d 661 (1997). The Court noted that two physicians attributed Bass' condition to a genetic cause. Id. at 134, 493 S.E.2d at 667. The Court stated that, "[u]nder the standard set forth in [Augusta County Sheriff's Dept. v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997)], this evidence of a genetic cause sufficiently rebutted the statutory presumption that claimant's heart disease is work-related." Bass, 26 Va.App. at 134, 493 S.E.2d at 667. The Court held that Bass failed to prove by clear and convincing evidence, under Code § 65.2-401, that his disease arose out of and in the course of his employment. Id. at 135, 493 S.E.2d at 667.

PATTON v. LOUDOUN COUNTY BOARD OF SUPERVISORS

In July 1994, John B. Patton, Jr., suffered a myocardial infarction, or "heart attack," and underwent emergency cardiac catheterization and angioplasty. The symptoms of the heart attack began while Patton was working on the patrol division evening shift in the Loudoun County Sheriff's Department (the employer), where he had been employed for about 14 years. Patton later had a recurrence of chest pain and, as a result, had coronary artery bypass surgery.

Patton later filed a workers' compensation claim seeking temporary total disability benefits for his heart disease. At a hearing before a deputy commissioner, Patton introduced evidence from Dr. Carey M. Marder, his treating cardiologist. Dr. Marder noted that Patton had "multiple cardiovascular risk factors," including a past history of cigarette smoking, a history of adult onset diabetes, hypertension, a positive family history for heart disease, and high cholesterol levels in his blood. Dr. Marder stated that it was difficult to say how much of Patton's coronary artery disease was related to the stress of his employment, because "[s]tress as an independent risk factor is very difficult to quantitate."

Dr. Richard A. Schwartz stated that occupational stress, hypertension, a history of cigarette smoking, and possibly diabetes, were identifiable factors causing Patton's heart disease. Dr. Schwartz explained that coronary artery disease is a "multifactorial process" and that none of the above factors could be specifically implicated or excluded.

The employer presented the opinion of Dr. Stuart F. Seides, a cardiologist, who stated that although Patton experienced the onset of his heart attack while on duty as a police officer, "it is highly likely that [the heart attack] would have occurred in or around the same time frame regardless of his activities." Dr. Seides stated that the presence of atherosclerosis is the most important factor in the development of a myocardial infarction, and that the "relationship of occupation to the development of atherosclerosis is virtually nil."

The deputy commissioner awarded benefits to Patton. The Commission affirmed the award, holding that the employer had not excluded work-related stress as a contributing cause of the claimant's heart disease. The Commission noted that both Dr. Marder and Dr. Schwartz concluded that "occupational stress was one of the [causative] factors in the claimant's heart disease."

While the employer's appeal of the Commission's decision was pending in the Court of Appeals, this Court decided the Overbey case. Patton then filed a petition asking the Court of Appeals to remand the entire case to the Commission for reconsideration "under the Overbey standard." Citing Overbey, the Court of Appeals held in an unpublished order that "the evidence of claimant's risk factors and the medical opinions offered constituted `competent medical evidence of a non-work-related cause' sufficient to rebut the presumption." Board of Supervisors v. Patton, Record No.XXXX-XX-X (Feb. 6, 1998). However, since the Court was unable to determine whether Patton had proved "by clear and convincing evidence that his heart disease arose out of and in the course of his employment," the Court remanded the case to the Commission to make specific findings regarding the credibility of conflicting medical evidence. Id.

CITY OF HOPEWELL v. MICHAEL W. TIRPAK

In February 1995, Michael W. Tirpak had a "stress test" as part of a routine physical examination scheduled by his employer, the City of Hopewell Police Department (the employer). During the test, Tirpak experienced a burning sensation in his chest and shortness of breath, and an electrocardiogram revealed some coronary abnormalities. A cardiac catheterization showed blockages in three of his coronary arteries. As a result, Tirpak had coronary artery bypass surgery. At the time of surgery, Tirpak was a supervising sergeant of the evening patrol shift for the City of Hopewell Police Department, where he had been employed since 1973.

Tirpak filed a claim for temporary total disability benefits based on his heart disease. At a hearing before a deputy commissioner, Tirpak presented evidence from his treating cardiologist, Dr. Ashok Kumar, who stated that Tirpak had a 30-year history of smoking cigarettes, and that he had a family history of premature coronary artery disease. Dr. Kumar also stated that he could not exclude job-related stress as a cause of Tirpak's heart disease. Dr. J. James Zocco, the cardiac surgeon who performed Tirpak's surgery, stated that work-related stress could not be excluded as a contributing factor in Tirpak's heart disease. Dr. Zocco also stated that Tirpak had other coronary risk factors, including a family...