City of Newport News v. Kahikina
Decision Date | 25 February 2020 |
Docket Number | Record No. 1372-19-1 |
Citation | 71 Va.App. 536,838 S.E.2d 70 |
Parties | CITY OF NEWPORT NEWS v. Joey K. KAHIKINA |
Court | Virginia Court of Appeals |
Adonica Baine, Senior Assistant City Attorney (City of Newport News, on briefs), for appellant.
Michael A. Kernbach (Michael A. Kernbach, P.C., on brief), Fairfax, for appellee.
Present: Judges Petty, Russell and Malveaux
OPINION BY JUDGE WILLIAM G. PETTY
The City of Newport News (City) argues on appeal that the Workers’ Compensation Commission erred in awarding a police officer benefits for heart disease
under the presumption found in Code § 65.2-402(B). We disagree and affirm the Commission’s decision.
Under our standard of review, when we consider an appeal from the Commission’s decision, we must view the evidence in the light most favorable to the party who prevailed before the Commission. K & K Repairs & Const., Inc. v. Endicott, 47 Va. App. 1, 6, 622 S.E.2d 227 (2005). Here, the prevailing party was claimant Joey K. Kahikina.
The record shows that Kahikina, a police officer with the City of Newport News, began having heart problems in 2004. In October 2011, after experiencing irregular heartbeats at work, Kahikina saw cardiologist Dr. Gillen, who diagnosed Kahikina with cardiomyopathy
.1 Dr. Gillen attributed Kahikina’s irregular heartbeats to his consumption of a Red Bull, a highly caffeinated beverage, the previous day. Kahikina was kept on "sedentary work only" until a follow-up appointment in January 2012, when Dr. Gillen noted that Kahikina had "no evidence of ischemic heart disease with risk factors which included diabetes, hypertension, and dyslipidemia."2
In 2015, Kahikina experienced chest pain and was hospitalized from August 26–28. Dr. Chou, a cardiologist, performed a stress echocardiogram
and diagnosed Kahikina with "unstable angina with large area of ischemia," "resting LV dysfunction of unclear significance," "hypertension," "diabetes," and "dyslipidemia." He also performed a cardiac catheterization and implanted a stent
. At a follow-up appointment in September 2015, Dr. Chou concluded, "Strictly speaking, I do not have any obvious reason why he cannot return back to work, at least based on the stress test result."
At the hearing before Deputy Commissioner Wilder, evidence showed that Kahikina signed acknowledgements of receipt of Code § 65.2-402 in 2009 and 2010. Kahikina testified that the first time he discussed "work-related stress" with Dr. Chou was after the June 2017 injury.
On appeal to this Court, the City advances two assignments of error. First, "[t]he Commission erred in finding that this occupational disease claim is not barred by the two-year statute of limitations found in Virginia Code § 65.2-406(A)(6)." Second, "[t]he Commission erred in finding that the Claimant was entitled to invoke the presumption of Virginia Code § 65.2-402(B)." For the following reasons, we affirm the decision of the Commission.
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 ... shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such a presumption is overcome by a preponderance of competent evidence to the contrary.
Furthermore, the statute of limitations applicable to this claim provides that a claim must be brought within "two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs." Code § 65.2-406(A)(6).
The question of whether a claim is barred by the statute of limitations is a question of law, which this Court reviews de novo . Philip Morris USA, Inc. v. Mease, 62 Va. App. 190, 198, 745 S.E.2d 155 (2013). But "[w]hether the information filed with the [C]ommission is sufficient to constitute a timely filed claim for a particular injury is a question of fact [that] ... will not be disturbed on appeal if supported by credible evidence." Corporate Res. Mgmt. v. Southers, 51 Va. App. 118, 127, 655 S.E.2d 34 (2008) (en banc ).
The applicable statute of limitations required Kahikina to file within two years from the date that he received a diagnosis of an occupational disease. Code § 65.2-406(A)(6). The City contends that since Kahikina received a copy of the heart-lung presumption in 2009 and 2010, it was incumbent upon him to file for heart disease
within two years of his 2011 diagnosis because at that point he knew that he had heart disease and knew about the statute. But this argument misses one critical component of the equation—whether Kahikina knew that his disease was caused by his employment.
This knowledge requirement has been previously addressed by both the Supreme Court and this Court. In Garrison v. Prince William Cty. Bd. of Supervisors, 220 Va. 913, 916, 265 S.E.2d 687 (1980), the claimant was diagnosed with hypertension
in 1975. In 1977 he discovered his disease was work-related. Id. The Supreme Court reiterated that the statute of limitations does not begin to run until a claimant "receives a diagnosis that he suffers from an ‘occupational disease’: one ‘arising out of and in the course of the employment.’ " Id. at 917, 265 S.E.2d 687 (citation omitted). Therefore, the Court held that the claimant’s August 1978 claim for benefits was not time-barred because "[w]hile the claimant was informed in 1975 that he suffered from hypertension
, he did not at that time receive a diagnosis that his hypertension arose out of and in the course of employment." Id.
This Court has also recognized that a claimant need not file for benefits until he understands that there is a causal connection between his disease and his work. Via v. Citicorp Mort., 10 Va. App. 572, 577, 394 S.E.2d 505 (1990) ( ). In Via, this Court discussed Hawks v. Henrico Cty. Sch. Bd., 7 Va. App. 398, 374 S.E.2d 695 (1988), where the statute of limitations began to run upon "a communication to the claimant that he had ‘scarring in the lungs’ from exposure to metals on his welding job." Id. (quoting Hawks, 7 Va. App. at 402-03, 374 S.E.2d 695 ). We noted that if a doctor had incorrectly attributed the claimant’s symptoms to allergies, then "[o]bviously, the communication of such a diagnosis would not trigger the limitation period for a claim based on the lung disease." Id.
Here, Kahikina found out years after his initial diagnosis that the condition was causally related to his employment as a police officer. The medical records and testimony indicate that Kahikina discovered for the first time on June 24, 2017, that his heart disease
was causally related to his employment.3
In fact, prior to that date Kahikina’s doctors attributed his heart disease
to his lifestyle choices and other illnesses. According to the record, Dr. Chou’s conversation with Kahikina on June 24, 2017, was the first time that Kahikina was informed that work-related stress could be causing his heart disease....
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