City of Hopewell v. Tirpak

• Decision Date: 28 July 1998
• Docket Number: Record No. 1369-97-2.
• Citation: 502 S.E.2d 161,28 Va. App. 100
• Parties: CITY OF HOPEWELL and Virginia Municipal Group Self-Insurance Association v. Michael W. TIRPAK.
• Court: Virginia Court of Appeals

502 S.E.2d 161

28 Va. App. 100

CITY OF HOPEWELL and Virginia Municipal Group Self-Insurance Association v. Michael W. TIRPAK.

Record No. 1369-97-2.

Court of Appeals of Virginia, Richmond.

July 28, 1998.

S. Vernon Priddy, III (Sands, Anderson, Marks & Miller, on briefs), Richmond, for appellants.

B. Mayes Marks, Jr. (B. Mayes Marks, Jr., P.C., on brief), Hopewell, for appellee.

Present: BENTON, ELDER and BUMGARDNER, JJ.

ELDER, Judge.

The City of Hopewell and Virginia Municipal Group Self-Insurance Association (collectively "employer") appeal a decision of the Workers' Compensation Commission ("commission") awarding temporary total disability and medical benefits to Michael W. Tirpak ("claimant"), who is a police officer. Employer contends the commission erred when it (1) concluded it had subject matter jurisdiction over claims involving gradually incurred heart disease, (2) found that a diagnosis of claimant's heart disease was communicated to him on February 17, 1995, and (3) found that employer failed to rebut the statutory presumption contained in Code § 65.2-402(B) that claimant's heart disease was caused by his employment as a police officer. While this appeal was pending, claimant petitioned this Court to have the case remanded for new factual findings in light of Augusta County Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), and City of Richmond Police Dep't v. Bass, 26 Va.App. 121, 493 S.E.2d 661 (1997), both of which were decided after the commission's decision in this case. For the reasons that follow, we affirm in part, vacate in part, and remand.

I. FACTS

Claimant has worked as a police officer for the City of Hopewell since 1973. On February 17, 1995, he was diagnosed with multi-vessel coronary artery disease by Dr. Ashok Kumar. Claimant underwent triple bypass surgery on February 21 and returned to work on May 22.

Claimant filed a claim with the commission seeking medical and temporary total disability benefits stemming from his heart disease. During a hearing on claimant's claim, both parties presented evidence regarding the causation of claimant's heart disease. Following the hearing, a deputy commissioner awarded claimant temporary total disability benefits from February 8, 1995, through May 21, 1995, and medical benefits from January 24, 1995, and continuing. Employer appealed, and the commission affirmed. The commission found that Dr. Kumar's diagnosis on February 17, 1995 informed claimant that his heart disease was an occupational disease. The commission also found that the evidence presented by employer failed to rebut the statutory presumption of Code § 65.2-402(B) that claimant's heart disease was suffered in the line of duty. In its statement of the applicable law, the commission stated that "[t]he employer fails to rebut the presumption [of Code § 65.2-402(B) ] where a work related factor such as occupational stress is not excluded." The commission also concluded that claimant's claim was not barred by Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), and its progeny.

II. COMMISSION'S SUBJECT MATTER JURISDICTION OVER CLAIM REGARDING GRADUALLY INCURRED HEART DISEASE

Employer contends the commission lacked subject matter jurisdiction over claimant's claim. It argues that, in light of Jemmott and Allied Fibers v. Rhodes, 23 Va.App. 101, 474 S.E.2d 829 (1996), heart disease resulting from "cumulative exposure to causative factors" is no longer covered by the Workers' Compensation Act ("Act"). As such, employer asserts the commission is without jurisdiction under Code § 65.2-402(B) to hear claims stemming from gradually incurred heart disease. We disagree.

We hold that neither Jemmott nor Rhodes has stripped the commission of subject matter jurisdiction under Code § 65.2-402(B) to hear claims for the compensation of heart disease. Employer correctly contends that, unless deemed compensable by the General Assembly, "cumulative trauma conditions, regardless of whether they are caused by repetitive motion, are not compensable under the Act." Rhodes, 23 Va.App. at 104, 474 S.E.2d at 830 (citing Jemmott, 251 Va. at 199, 467 S.E.2d at 802). However, the General Assembly has expressly empowered the commission with jurisdiction to determine "[a]ll questions arising under [the Act], if not settled by agreements of the parties interested therein with the approval of the Commission...." Code § 65.2-700. Whether a particular ailment is caused by cumulative trauma and whether it is a compensable disease are questions that arise under the Act. See A New Leaf, Inc. v. Webb, 26 Va.App. 460, 466, 467-68, 495 S.E.2d 510, 513, 514 (1998). Thus, even assuming claimant's heart disease was not compensable because it was gradually caused by the process of trauma, the commission had statutory authority to receive evidence and make this determination. In addition, notwithstanding case law construing the meaning of "disease" under the Act,¹ the General Assembly, by enacting Code § 65.2-402, expressly indicated its intent that occupational "heart disease" will be included as a compensable "disease." Even if all heart disease is caused gradually by the process of trauma, the General Assembly has expressly removed this ailment from those cumulative trauma conditions that are otherwise not compensable as a "disease" when it is incurred by the public servants enumerated in the statute.

III. COMMUNICATION DATE OF DIAGNOSIS

Employer contends the commission erred when it found that claimant received a diagnosis of an occupational disease on February 17, 1995. Because credible evidence in the record supports the commission's finding, we disagree with employer's contention.

An occupational disease is not compensable under the Act until a diagnosis of the occupational disease has been communicated to the employee. See Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 9, 365 S.E.2d 782, 787 (1988); Code § 65.2-403. "The diagnosis need not contain precise medical terminology as long as the diagnosis is definite and informs the claimant in clear and understandable language that he or she is suffering from a disease that arises out of and in the course of employment." Via v. Citicorp Mortgage, Inc., 10 Va.App. 572, 576, 394 S.E.2d 505, 507 (1990) (citation omitted). Claimant testified that on February 17, 1995, the day of his cardiocatheterization, Dr. Kumar told him and his wife that "stress on the job" was among the contributing factors that caused his heart disease. When Dr. Kumar was asked whether he discussed the causation of claimant's heart disease with him on February 17, the doctor responded that he "[did] not recall the details" of the conversation. Because claimant's uncontradicted account of his discussion with Dr. Kumar on February 17 indicates that he received a diagnosis of an occupational disease, we hold that the commission's factual finding was not erroneous.

IV.

LEGAL STANDARD APPLIED BY THE COMMISSION REGARDING THE REBUTTAL OF THE PRESUMPTION OF CODE § 65.2-402(B)

Both employer and claimant argue that Overbey and Bass rendered incorrect the legal standard applied by the commission and that this case should be remanded to the commission for factual findings based upon the correct legal standard. We agree.

The Act "currently provides coverage for impairments arising out of and in the course of employment that fall into one of two categories: (1) `injuries by accident' and (2) `occupational disease.'" A New Leaf, Inc., 26 Va.App. at 465, 495 S.E.2d at 513 (quoting Code § 65.2-101). Under Code § 65.2-402(B), heart disease incurred by a police officer employed by a city is "presumed to be [an] occupational disease, suffered in the line of duty, that [is] covered by [the Act]...."² This presumption ("causation presumption") does not automatically entitle an employee covered by Code § 65.2-402(B) to benefits. Instead, the causation presumption shifts the evidentiary burden from the claimant to the employer to "overcome [the presumption] by a preponderance of competent evidence to the contrary." Code § 65.2-402(B); see Commonwealth, Dep't of State Police v. Hines, 221 Va. 626, 629-30, 272 S.E.2d 210, 213 (1980) (citing Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978)).

In Overbey, the Supreme Court held that, in order to rebut the causation presumption, an employer is not required to offer evidence that excludes "the possibility of all job-related [hypotheses of] causation" when there is no medical evidence establishing any causal relationship. Overbey, 254 Va. at 526, 492 S.E.2d at 634. Thus, in a case in which no evidence is presented proving that occupational stress was a contributing factor to the claimant's heart disease, "the employer [does not] have the burden of excluding the `possibility' that job stress may have been a contributing factor...." Id. at 527, 492 S.E.2d at 634.

In Bass, this Court applied the holding of Overbey to a case in which one physician opined that the "probable cause" of the claimant's heart disease was "genetic and environmental." Bass, 26 Va.App. at 134, 493 S.E.2d at 667. None of the doctors who expressed an opinion in Bass "opined to a reasonable degree of medical certainty that job stress was a causative factor in the disease [the] claimant suffered." Id. at 135, 493 S.E.2d at 667. Based on the Supreme Court's holding in Overbey that the employer was not required to exclude the possibility that job stress may have contributed to the claimant's heart disease, we held that the commission erred when it found the employer had failed to rebut the causation presumption. Id. at 134, 493 S.E.2d at 667 (citing Overbey, 254 Va. at 527, 492 S.E.2d at 634).

In light of Bass and Overbey, we hold that the commission applied an incorrect legal standard in this case when it found that employer had failed to rebut the causation presumption. In its opinion, the commission stated that "[t]he employer fails to rebut the...