City of Richmond Police Dept. v. Bass

• Decision Date: 09 December 1997
• Docket Number: No. 0657-97-2,0657-97-2
• Citation: 493 S.E.2d 661,26 Va.App. 121
• Court: Virginia Court of Appeals
• Parties: CITY OF RICHMOND POLICE DEPARTMENT v. Claude Ashley BASS, Jr. Record

Page 661

493 S.E.2d 661

26 Va.App. 121

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

Record No. 0657-97-2.

Court of Appeals of Virginia Richmond.

Dec. 9, 1997.

Scott C. Ford (Charles F. Midkiff; Midkiff & Hiner, on brief), Richmond, for appellant.

Malcolm Parks (Maloney, Barr & Huennekens, on brief), Richmond, for appellee.

Present: FITZPATRICK, C.J., ^* and ELDER and ANNUNZIATA, JJ.

FITZPATRICK, Chief Judge.

The City of Richmond Police Department ("employer") appeals the Workers' Compensation Commission's decision awarding benefits to Claude A. Bass, Jr. ("claimant"). Employer argues that the commission erroneously: (1) excluded claimant's testimony regarding the relationship between work stress and his hypertension; (2) found that his claim was not time-barred; (3) found that claimant established the presence of coronary artery disease and met his burden of proving a compensable occupational disease; and (4) found that employer's evidence was insufficient to rebut the statutory presumption of Code § 65.2-402. For the reasons that follow, we reverse.

I. BACKGROUND

Claimant is a police captain who has been a member of the Richmond Police Department since 1964. During his tenure with the department, claimant worked in the organized crime unit, the detective division, and the narcotics squad. His duties were often dangerous, and he received numerous promotions and decorations.

In October 1994, while at home preparing supper, claimant experienced "a strange sensation, and ... in a gradual manner, almost like a cloud drifting over, [he] lost sight in [his] eye." The vision loss occurred in claimant's left eye and lasted for approximately thirty minutes.

Claimant went to see Dr. Mullen, his ophthalmologist, on October 24, 1994. After examining claimant, Dr. Mullen referred him to Dr. Tulou, claimant's primary care physician. On October 26, 1994, Dr. Tulou referred claimant to Retreat Hospital for testing and to Dr. Davis, a vascular surgeon, for treatment. The doctors diagnosed an atherosclerotic blockage in claimant's carotid artery which had reduced blood flow in his brain and caused his episode of vision loss. On November 10, 1994, claimant was admitted to Retreat Hospital for surgery to correct the blockage. While he was hospitalized, claimant also had surgery on a similar blockage in his iliac artery. Claimant was incapacitated until December 5, 1994, when he resumed his full duties as a police officer.

On April 15, 1996, claimant filed a claim for benefits for this injury. On May 6, 1996, claimant's counsel filed an amended application for a hearing, requesting compensation for lost wages and payment of lifetime medical costs.

It is undisputed that claimant has suffered from hypertension, or high blood pressure, since the 1970s. Claimant stated that he had never missed any time from work due to his hypertension prior to October 1994. It is also uncontroverted that claimant was a smoker who had been counseled over the years about controlling his cholesterol and his weight. Claimant testified that, until October 1994, he had never been told that he had heart disease, vascular disease, or atherosclerosis. He admitted that he had been told that he had high blood pressure; however, he stated that the various doctors with whom he discussed his high blood pressure did not indicate that his condition was related to his work as a police officer.

Dr. Tulou described claimant's condition as "atherosclerosis with cholesterol deposits compromising [blood] flow." Though "it is certainly not exclusively a heart disease," there is "evidence on the basis of a thallium scan of the heart that the tip thereof is not receiving adequate blood." Dr. Tulou gave conflicting statements on the relationship between claimant's work and his condition. In a letter to claimant's attorney, Dr. Tulou had "absolutely no reservation in stating that [claimant's] work as a police officer in large measure contributed to his hypertension," and claimant's "hypertension is clearly a risk factor for any atherosclerotic process." Therefore, Dr. Tulou felt that claimant's "disability ... was related to his work-related hypertension."

However, in a later deposition, Dr. Tulou stated that whether claimant's hypertension and atherosclerosis were caused by his work in any way was "a philosophical question. Speaking from a strictly scientific basis, no, not really.... I think it remains speculative as to whether the job itself did it." When questioned whether claimant's condition was caused by stress, Dr. Tulou responded: "I just can't make a definitive statement one way or the other how that contributed.... In this particular case, I don't feel strongly one way or the other that it did or did not create his condition or contribute to his condition." Finally, when claimant's attorney queried whether, in Dr. Tulou's opinion to a reasonable degree of medical probability, claimant's work played a role in his hypertension, Dr. Tulou answered: "Plausibly a role, yes."

Dr. Davis saw claimant on November 7, 1994, upon referral from Dr. Tulou. He diagnosed claimant with "atherosclerosis which had become symptomatic in his left carotid and right iliac." He explained that "[a]therosclerosis ... is a disease of the arteries. It can involve the arteries of the heart and create heart attacks; although, [claimant] showed none of these symptoms at the time of his care." Regarding the relationship between claimant's condition, atherosclerosis, and his work, Dr. Davis indicated that "[t]he probable cause of his condition is genetic and environmental, and I cannot rule out work stress as a contributor to his diagnosis." He declined to comment on whether claimant suffered from heart disease or whether claimant's work as a police officer contributed to any such heart disease.

Dr. Hess reviewed claimant's medical history and answered employer's questions. Dr. Hess offered a diagnosis of "accelerated atherosclerotic cardiovascular disease" as a result of "the hypertensive syndrome with a combination of hypertension, cigarette smoking, and hypercholesterolemia." Regarding the source of claimant's disease, Dr. Hess stated that "there is no identifiable organic cause for his hypertension, and this more than likely represents a genetic predisposition in combination with his risk factors." As to the role of work stress in claimant's condition, Dr. Hess indicated that "there is very little objective proof that stress plays a major contributory role." Consequently, "from a medical viewpoint, it is extremely difficult to incriminate the stress of command on a police officer in giving him his present problems."

Lastly, the record contains correspondence from Dr. Melhorn, the doctor who diagnosed claimant's hypertension in the 1970s. On July 15, 1996, Dr. Melhorn answered certain general questions posed by employer. He stated that he recalled treating claimant in the 1970s; that it was his "normal practice to discuss any conditions which would require medication with a patient when such a condition is discovered"; that he would typically discuss with a patient the probable causes or contributing factors for such a condition in order to help him avoid or reduce future problems; that work-related stress "could be" a causal factor in claimant's hypertension because "stress does play a part in hypertension"; and that it was his normal practice to discuss the stress factor with a patient. Dr. Melhorn responded, "Yes--probably" to the inquiry: "Given that you knew he was a police officer, that he had hypertension and needed medication for it, do you believe that you most probably told the patient that work related stress was a factor in his diagnosis of hypertension in the 1970s?"

However, on July 16, 1996, Dr. Melhorn wrote a letter to claimant's counsel addressing his specific concerns regarding his treatment of claimant and his earlier statements:

I wish to state that I do not have the chart or records of my treatment of [claimant], and I do not have any independent recollection of having discussed with [claimant] the question of whether the hypertension with which I diagnosed in him [sic] years ago was related to his work.

When questioned about his past treatment with Dr. Melhorn, claimant testified as follows:

I wouldn't stretch anybody's imagination to think that I could recall a conversation in the '70's, other than he stressed to me the seriousness of taking the [blood pressure] medicine and of going back to Dr. Gill to have him monitor and be sure in fact that it was a problem. As far as work, I can only say that I have no recollection of him saying that it was work related, and if he had, I feel confident I would have followed up on that.

The deputy commissioner awarded claimant compensation for temporary total disability for the period November 10 through December 4, 1995, together with related medical expenses.

The commission affirmed the decision of the deputy commissioner. In doing so, it rejected "employer's argument that the Deputy Commissioner erred in not permitting the claimant to testify to his own opinion, as to whether stress was a factor in causing his hypertension. Inasmuch as this is strictly a medical issue, his testimony as to stress being a cause of high blood pressure would have no probative value."

Next, the commission found that "there was insufficient evidence of a communication or awareness of an occupational disease more than two years before the filing of the Claim for Benefits on April 15, 1996." Thus, the commission rejected employer's statute of limitations defense.

The commission also determined that: "the medical records sufficiently establish the presence of coronary artery disease.... There is no medical evidence to the contrary, and this element of the claimant's case is clearly established." Additionally, noting the statutory presumption, the commission found "no evidence that the Deputy Commissioner...