City of Portsmouth Sheriff's Dept v Stephen Clark

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
CITY OF PORTSMOUTH SHERIFF'S DEPARTMENT
OPINION BY
v. 	Record No. 2667-98-1 	JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 7, 1999
STEPHEN E. CLARK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Donna White Kearney;
Taylor & Walker, on brief), for appellant.
James T. Martin (Lieberman & Martin, on
brief), for appellee.
The City of Portsmouth Sheriff's Department ("employer")
appeals the Workers' Compensation Commission's ("the
commission") determination that Stephen E. Clark ("claimant") is
entitled to benefits under the Workers' Compensation Act
("Act"). 	Employer contends the commission erred in holding that
employer failed to rebut the statutory presumption of Code
§ 65.2-402(B) that claimant's heart condition is an occupational
disease covered by the Act. 	We find no error and affirm.
I.
BACKGROUND
Claimant filed two claims seeking payment of medical
benefits and temporary total disability benefits from employer
for a heart condition, orthostatic hypotension, allegedly

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arising out of his employment as a deputy sheriff. 	Claimant's
evidence consisted of medical records produced over a span of
more than three years by a number of treating physicians and
claimant's testimony concerning his physical condition and his
efforts to find employment since December 1996. 	None of
claimant's physicians, either orally or by deposition, testified
as to the cause of his orthostatic hypotension.
On November 10, 1998, the commission ruled that employer's
evidence failed to rebut the statutory presumption that
claimant's condition is an occupational disease covered by the
Act. 	Finding the presumption intact, the commission awarded
claimant medical benefits.
Based on the record before us, we find no error in the
commission's determination that employer failed to rebut the
presumption of Code § 65.2-402(B).
The record reveals the following relevant facts. 	In 1986,
claimant began working as a deputy sheriff for employer. 	On May
27, 1994, at the age of fifty-one, claimant was hospitalized for
symptoms that arose while he was driving a patrol car.
According to an emergency room medical report, claimant felt a
burning and tingling sensation develop along the right side of
his chest, right arm, and neck. 	Claimant also felt nauseated
and weak in his right extremities and was unable to lift his

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right arm. 	Claimant denied "any headache, visual disturbance,
or hearing changes."
Upon admission to the emergency room, claimant reported he
smoked one pack of cigarettes per day and had been smoking for
the past thirty-five years. 	Claimant further reported his
mother and a daughter had diabetes and reported a "strong
history of strokes at a young age" in members of his family,
including his mother and father. 	Dr. Warren Falo, the attending
physician, noted that claimant's family history was "significant
for strokes on both . . . his maternal and paternal sides." 	Dr.
A.J. Barot, a neurologist, was consulted while claimant was
hospitalized and noted the following risk factors: 	history of
smoking, high cholesterol, and a family history of strokes at a
young age.
Claimant was initially diagnosed with a cerebrovascular
accident ("CVA"). 	Upon his discharge from the hospital two days
later, claimant was also diagnosed as having suffered a
transient ischemic attack ("TIA"). 	Over the next several
months, claimant continued to receive treatment from various
physicians, eventually recovering from this incident with no
residual effect on his right extremities.
On June 16, 1994, Dr. Philip Goldstein met with claimant
for a cardiovascular consultation. 	At that time, claimant
reported that he had a history of "blackout spells." 	In his

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report, Dr. Goldstein wrote: 	"As the last blackout spell was a
year ago, the history is limited. 	From what [claimant] can
recall he has them only while at work. 	He describes his job as
very stressful. 	He said that they usually occur while in the
car driving." 	Claimant denied "diabetes, hypertension, family
history of coronary disease, and hypercholesterolemia." 	Dr.
Goldstein listed claimant's history of smoking as the only risk
factor for coronary disease.
In December 1994, Moira Horne, a Trigon claims
representative, posed several questions by letter to Dr. Barot
regarding claimant's health condition in conjunction with a
workers' compensation claim. 	By handwritten response, Dr. Barot
indicated that claimant had been diagnosed with a CVA and a TIA
and that claimant had a family history risk factor.
During a cardiovascular re-evaluation on November 9, 1995,
claimant reported that he had been having blackouts three or
four times per year since 1982, four years before claimant
started working for employer. 	According to claimant's
description, the blackouts caused him to have shortness of
breath, nausea, double vision, and blurred vision immediately
prior to passing out. 	After lying down for a few minutes, the
episode would resolve itself, although persistent nausea and
weakness might follow for some time thereafter. 	Dr. Skillen,
the treating physician, described these blackouts as "syncopal

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episodes." 	As a result of his examination, Dr. Skillen
recommended a test, called a tilt table study, which returned
"markedly abnormal" results. 	Performed on November 29, 1995,
the test was "positive for orthostatic hypotension."
Claimant was again hospitalized on December 9, 1996, after
developing numbness, tingling, and weakness in the left upper
extremity. 	Claimant did not report any dizziness, "fainty
feeling," or obstruction in vision. 	Upon his admission,
claimant admitted to smoking a pack of cigarettes per day. 	Dr.
Leonard Davis, the attending physician, noted that claimant's
mother had died of heart disease but, following an examination
on December 10, 1996, Dr. Barot noted that claimant's family
history was "noncontributory" to his condition.
In February 1997, Dr. Eric Freeman, a physician with
Portsmouth Pulmonary Associates, examined claimant upon
referral. 	Claimant reported a shortness of breath that had
become "much worse in the last three or four months" and a
significant cough that was producing a thick, clear mucous.
After his examination, Dr. Freeman reported:
Assessment: 	History of long term cigarette
smoking, coughing, mucous production on a
daily basis as well as increasing shortness
of breath documented objectively with
Pulmonary Function Tests plus the physical
finding of wheezing all indicate a diagnosis
of chronic obstructive pulmonary disease
with an acute exacerbation. 	He also has
peripheral vascular disease with a stroke.

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PLANS AND SUGGESTIONS: 	Cessation of
cigarette smoking is the key to this patient
improving. 	I asked the patient to no longer
smoke cigarettes, take NICOTINE patch as
soon as possible, and he has agreed to do
this.
In response to a letter from another Trigon claims
representative dated May 29, 1997, Dr. Davis indicated that
claimant suffered from a CVA and chronic obstructive pulmonary
disease ("COPD"), that claimant's risk factor was smoking, and
that claimant's job was not the cause of his condition.
On September 2, 1997, Dr. Goldstein wrote in an office
memorandum:
I suspect that [claimant] may have suffered
a CVA in December of 1996 and by history and
cath findings, a TIA in 1994 possibly on the
basis of orthostatic hypotension which
resulted in a low flow state to the brain
which resulted in clotting of blood and
leading to cerebral infarction. . . .
[Claimant] does have a cardiovascular
problem. 	It is documented orthostatic
hypotension and I believe did result in a
right cerebral infarct per Dr. Barot his
neurologist and this, I feel, could be
explained on this basis from a low flow
state to the brain precipitated by the same.
On September 9, 1997, Dr. William E. Callaghan, one of Dr.
Goldstein's associates, examined claimant following another
episode of weakness. 	Callaghan noted that claimant smoked,
which was the only risk factor for heart disease recorded by the
physician.

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II.
ANALYSIS
The Workers' Compensation Act provides for coverage of
occupational diseases arising out of and in the course of
employment. 	See Code § 65.2-101; A New Leaf, Inc. v. Webb, 26
Va. App. 460, 465, 495 S.E.2d 510, 513 (1998), aff'd, 257 Va.
190, 511 S.E.2d 102 (1999). 	Under Code § 65.2-402(B), a heart
disease incurred by a deputy sheriff is "presumed to be [an]
occupational disease[], suffered in the line of duty, that [is]
covered by [the Act] unless such presumption is overcome by a
preponderance of competent evidence to the contrary." 	The
Supreme Court of Virginia recently re-affirmed the principle
that an employer may rebut the presumption of Code § 65.2-402(B)
by proving by a preponderance of the evidence that: 	1) the
claimant's disease was not caused by his or her employment, and
2) there was a non-work-related cause of the disease. 	See Bass
v. City of Richmond Police Dep't, 258 Va. 103, 115, 515 S.E.2d
557, 563 (1999). 	When the commission determines that an
employer has failed to overcome the statutory presumption, the
claimant is entitled to an award of benefits. 	See Code
§§ 65.2-400 to -407.
Employer contends that its evidence rebutted the
presumption contained in Code § 65.2-402(B) by establishing that
claimant's orthostatic hypotension was caused by his family

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history of heart disease and his history of smoking and not by
his employment. 	The commission, however, in its role as fact
finder, found that employer's evidence failed to establish by a
preponderance of the evidence a non-work-related cause of
claimant's heart disease and that employer consequently failed
to rebut the statutory presumption.1 We cannot conclude as a
1 The commission's decision stated in pertinent part:
In order to rebut the presumption, it
is not sufficient that the employer
establish one or more non-employment risk
factors commonly associated with heart
disease. 	The employer must establish by
competent medical evidence a
non-work-related cause of the condition.
We find that the medical evidence in
this case does not preponderate to show a
non-work-related cause for the claimant's
heart disease and resulting strokes. 	Dr.
Davis opined that the claimant's job was not
the cause of his stroke. 	He did . . . not
set forth a non-work-related cause. 	He also
stated that the claimant's smoking was a
risk factor. 	Dr. Barot's statement that the
claimant's risk factors include smoking,
high cholesterol, and "a family history of
strokes at a young age" is not firmly
supported b the medical records from the
other physicians. 	The medical records as a
whole, although somewhat inconsistent, do
not establish a family history of heart
disease. 	It appears that the claimant's
mother's health problem was diabetes, which
resulted in strokes. 	The father suffered
from kidney disease. 	The Commission gives
little weight to opinions based on an
inaccurate or incomplete history.
Neither Dr. Davis nor Dr. Barot offer
an opinion that smoking or family history
caused the claimant's heart disease. 	Also,
they do not set forth any other

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matter of law that the commission erred in its ruling. 	See
County of Amherst Bd. of Supervisors v. Brockman, 224 Va. 391,
399, 297 S.E.2d 805, 809-10 (1982); Dep't of State Police v.
Talbert, 1 Va. App. 250, 255, 337 S.E.2d 307, 309 (1985).
A.
Family History
The weight to be given the evidence, the credibility of
witnesses, and the resolution of conflicting medical evidence
are matters solely for the commission to decide. 	See Talbert, 1
Va. App. at 254, 337 S.E.2d at 309. 	"[A] finding by the
Commission upon conflicting facts . . . is conclusive and
binding . . . , absent fraud, when such determination is
supported by competent, credible evidence." 	C.D.S. Constr.
Servs. v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240
(1978). 	See Talbert, 1 Va. App. at 253, 337 S.E.2d at 308 ("A
finding based upon conflicting expert medical opinions is one of
fact which cannot be disturbed . . . ."). 	"On review, we
determine whether the evidence was sufficient to support the
finding of fact reached by the Commission, not whether the
evidence was sufficient to have supported a contrary finding."
Id.
non-work-related cause. 	Therefore, the
evidence is not sufficient to rebut the
presumption.

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The medical records relied upon by employer contain
conflicting evidence as to whether claimant has a family history
of heart disease and the commission resolved the conflict,
determining that, "as a whole, [they] do not establish a family
history of heart disease." 	Because this finding is supported by
credible evidence, the commission's determination is binding on
appeal.2
Furthermore, even had the medical records established a
family history of heart disease, employer failed to prove by a
preponderance of the evidence that this risk factor actually
caused claimant's orthostatic hypotension. 	"[T]he showing of
'risk factors' alone does not rebut the statutory presumption
and does not establish competent medical evidence of a
non-work-related cause of the disabling disease." 	City of
Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246
(1992). 	Employer's proof that a family history of heart disease
caused claimant to develop orthostatic hypotension consists
2 According to the record, although claimant denied a family
history of "coronary disease" on one occasion, he admitted on
another occasion that his mother had died of heart disease.
Moreover, although several physicians, including Dr. Barot,
reported that claimant had a family history for strokes and CVA
after his first CVA in 1994, following claimant's second CVA in
1996, Dr. Barot reported that claimant's family history was
"noncontributory" to his condition. 	Also, upon separate
examinations of claimant, Drs. Goldstein and Callaghan, both
cardiologists, only reported claimant's history of smoking as a
risk factor for coronary disease, supporting the inference that
family history was not a causative risk factor.

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exclusively of references in medical reports noting that
claimant has a family history risk factor. 	Such references do
not constitute evidence that claimant's orthostatic hypotension
was, in fact, of genetic or inherited origin, in whole or in
part. 	See id. Cf. Augusta County Sheriff's Dep't v. Overbey,
254 Va. 522, 525, 527, 492 S.E.2d 631, 633, 634 (1997) (finding
that employer established a non-work-related cause of claimant's
heart disease based in part on the uncontradicted deposition
testimony of the attending physician that several
non-work-related risk factors "caused" the claimant's heart
disease).
B.
HISTORY OF SMOKING
Employer also failed to present evidence of the
relationship between claimant's history of smoking and his heart
disease sufficient to rebut the presumption of Code
§ 65.2-402(B).
The record establishes that claimant smoked cigarettes for
over thirty-five years. 	On multiple occasions since 1992,
claimant admitted smoking one pack of cigarettes per day. 	Over
a period of three years, Drs. Barot, Goldstein, Davis, and
Callaghan identified claimant's history of smoking as a risk
factor. 	Drs. Goldstein and Callaghan, both cardiologists,

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specifically reported that claimant's history of smoking put him
at risk for the development of coronary disease.
No evidence was admitted, however, concerning the actual
effect of claimant's smoking on his cardiovascular health. 	No
physician opined that smoking caused claimant's orthostatic
hypotension. 	Cf. id. 	Although Dr. Freeman recommended that
claimant stop smoking after diagnosing claimant with COPD, his
recommendation does not constitute evidence of the cause of
claimant's orthostatic hypotension. 	In his assessment of
claimant's health, Dr. Freeman diagnosed claimant with COPD and
noted that claimant also has a "peripheral vascular disease with
a stroke." 	Nothing in Dr. Freeman's report suggests he
considered the relationship between claimant's vascular disease
and history of smoking. 	Indeed, the plain language of the
report indicates that Dr. Freeman, a pulmonary specialist,
considered claimant's history of smoking only as a factor
contributing to his diagnosis of COPD. 	Dr. Freeman did not
diagnose claimant with orthostatic hypotension and was not
consulted to treat this condition. 	Thus, although employer may
have established that claimant's history of smoking was a risk
factor for heart disease, employer failed to present sufficient
medical evidence that claimant's smoking habits actually caused
orthostatic hypotension. 	See Lillard, 15 Va. App. at 429, 424
S.E.2d at 246.

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To rebut the presumption of Code § 65.2-402(B), employer
was required to produce affirmative evidence of a
non-work-related cause of claimant's orthostatic hypotension.
See Bass, 258 Va. at 115, 515 S.E.2d at 563. 	Because employer's
evidence did not prove by a preponderance of the evidence that
claimant's family history or history of smoking caused him to
develop orthostatic hypotension, the commission did not err by
finding that employer failed to rebut the statutory presumption
that claimant's condition is a compensable occupational disease.
See Lillard, 15 Va. App. at 426, 424 S.E.2d at 245 ("In the
absence of competent evidence to the contrary, the statutory
presumption controls and the claimant prevails.").
For the foregoing reasons, we affirm the commission's
award.
Affirmed.