City of Richmond Fire Department v George J. Dean

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
CITY OF RICHMOND FIRE DEPARTMENT
OPINION BY
v. 	Record No. 1731-98-2 	JUDGE JAMES W. BENTON, JR.
JULY 27, 1999
GEORGE J. DEAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles F. Midkiff (Joshua M. Wulf; Midkiff &
Hiner, P.C., on brief), for appellant.
Malcolm Parks (Maloney, Huennekens, Parks,
Gecker and Parsons, P.C., on brief), for
appellee.
George J. Dean, a firefighter employed by the City of
Richmond Fire Department, developed "asymptomatic complete heart
block." 	Ruling that Dean suffered from an occupational disease,
the commission awarded Dean temporary total disability benefits
and medical benefits. 	On appeal, the Department contends the
commission erred in ruling that the Department failed to rebut
the presumption of occupational disease contained in Code
§ 65.2-402(B). 	We affirm the commission's ruling.
I.
In 1988, the City of Richmond Fire Department required
George J. Dean to have a pre-employment physical examination.
The examination revealed that Dean was free of heart disease.
After the Department hired Dean as a firefighter, Dean had

periodic physical examinations throughout the course of his
employment. 	Those examinations revealed no significant health
problems until 1995. 	In that year, Dean's routine physical
examination disclosed an "abnormal EKG" and "a problem with
[his] pulse rate." 	Dean visited Dr. William F. Moore, his
personal doctor, who performed an electrocardiograph and
referred Dean to Dr. Brian L. Kaminsky, a cardiologist. 	Dr.
Kaminsky examined Dean, reviewed his electrocardiographs, and
diagnosed "asymptomatic complete heart block . . . [that]
appears to be new since 1989." 	Dr. Kaminsky then referred Dean
to Dr. Kenneth A. Ellenbogen.
Dr. Ellenbogen, a cardiologist and Director of
Electrophysiology at the Medical College of Virginia, examined
Dean and concluded that Dean "should be considered to have
complete heart block of idiopathic etiology." 	Dr. Ellenbogen
recommended that Dean have a pacemaker installed to control his
heartbeat and surgically installed a pacemaker in 1996. 	He then
reported that "Dean's condition can be definitely diagnosed as
heart disease . . . [and that the] etiology of [Dean's] complete
heart block is unclear."
Dean applied for temporary total disability benefits for
the period of time he was unable to work. 	In addition to the
reports of Dr. Moore, Dr. Kaminsky, and Dr. Ellenbogen, the
record before the commission included the deposition of Dr.
Ellenbogen. 	Dr. Ellenbogen testified that "we don't understand
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how we get heart block. 	But in medicine there is a big category
of causes of heart block, and it's idiopathic; unknown." 	Dr.
Ellenbogen further stated that Dean's condition was not
congenital and opined that Dean acquired it at some point during
his lifetime. 	He could not rule out the hypothesis that Dean
acquired his condition through exposure to toxic chemicals or
viral infections in the course of his employment.
Dr. Michael L. Hess, a cardiologist who examined Dean and his
records for the Department, testified on deposition as follows:
The most likely explanation for [Dean's
condition] is that his conducting system
degenerated, and his electrical conducting
system is replaced with fibrous tissue. 	The
most likely reason why [its] degenerated is
that the cells are programmed to degenerate
much more prematurely. 	We call that concept
apoptosis, which is programmed cell death.
Dr. Hess performed no specific test to determine whether Dean's
heart block was indeed caused by apoptosis induced fibrosis. 	When
asked to explain the basis for his conclusion, Dr. Hess testified
that because ninety percent of heart block cases are caused by
fibrosis and there was only a fifteen percent likelihood that
Dean's fibrosis was caused by something other than apoptosis, then
the fact that apoptosis induced fibrosis caused Dean's heart block
was a "statistical probability." 	Such a methodology was
unavoidable, Dr. Hess testified, because the only certain method
of diagnosing the heart block's etiology was to "examine [Dean's]
conducting system under the microscope," which cannot be done
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while Dean is alive. 	Barring such an examination, or utilization
of statistical models, Dr. Hess conceded that "[t]he etiology of
[Dean's] heart block is unclear." 	Dr. Hess further testified that
the cause of ten percent of heart block cases not attributable to
fibrosis is unknown and that he did not believe Dean's condition
was congenital.
Dr. Richard A. Schwartz, a cardiologist, also examined Dean's
records and reported that "[m]edical science has not established
why [fibrosis] develops." 	He opined that Dean's "work cannot be
excluded as a cause of this condition . . . [and that the]
likelihood of some blockage of the coronary arteries due, in part,
to occupational stress seems . . . to be the most likely cause of
Mr. Dean's acquired heart block."
Finding that the Department had successfully rebutted the
presumption codified in Code § 65.2-402(B), a deputy commissioner
denied Dean's application. 	On Dean's appeal, the commission ruled
that the Department "failed to prove a nonwork-related cause of
the disease." 	The commission further ruled that "Code § 65.2-402
dictates that, until the employer presents another cause of heart
disease unrelated to Dean's work as a firefighter, the
occupational disease is presumed to be caused by the work." 	The
Department appeals from the decision awarding Dean benefits.
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II.
In pertinent part, Code § 65.2-402(B) provides as follows:
[H]eart disease causing . . . any health
condition or impairment resulting in total
or partial disability of . . . salaried or
volunteer firefighters . . . 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.
Clarifying its prior decisions and reviewing decisions of
this Court, the Supreme Court recently held that "[t]o overcome
the presumption [contained in Code § 65.2-402(B)], the employer
must show, by a preponderance of the evidence, both that (1) the
[employee's] disease was not caused by his [or her] employment,
and (2) there was a non-work-related cause of the disease."
Bass v. City of Richmond Police Dep't, ___ Va. ___, ___, ___
S.E.2d ___, ___ (June 11, 1999). 	Thus, it follows that "if the
employer does not prove by a preponderance of the evidence both
parts of this two-part test, the employer has failed to overcome
the statutory presumption." 	Id. at ___, ___ S.E.2d at ___.
Based on the evidence in this record, the commission made the
following findings:
[B]oth Dr. Hess and Dr. Ellenbogen agree
that there is no evidence that work factors
or any presumptive risk factors in any way
contributed to the claimant's complete heart
block. 	However, both physicians also admit
that the complete heart block was not
congenital. 	It did not arise as a genetic
function of birth, but the disease condition
developed sometime after birth, perhaps
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after Dean began work with the City of
Richmond Fire Department, or even subsequent
to the May 1995 examination. 	Dr. Hess and
Dr. Ellenbogen candidly admit they cannot
determine what precipitated the bradycardia,
or when such process even began. 	While the
physicians may disagree as to the specific
pathologic condition presenting as
bradycardia, both agree that they cannot
attribute a cause to that disease, at least
until a postmortem examination can be
performed.
We find that the employer has therefore
failed to prove a nonwork-related cause of
the disease. 	Code § 65.2-402 dictates that,
until the employer presents evidence of
another cause of heart disease unrelated to
Dean's work as a firefighter, the
occupational disease is presumed to be
caused by the work.
(Emphasis added).
"In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." 	Wagner Enterprises v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 	"Matters of
weight and preponderance of the evidence, and the resolution of
conflicting inferences fairly deducible from the evidence, are
within the prerogative of the commission, and are conclusive and
binding on the Court of Appeals." 	Kim v. Sportswear, 10 Va. App.
460, 465, 393 S.E.2d 418, 421 (1990) (citation omitted); see also
Code § 65.2-706(A).
Credible evidence in the record supports the commission's
finding that both Dr. Ellenbogen and Dr. Hess concluded that the
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cause of Dean's heart block is unknown. 	Both doctors agreed that
the cause of Dean's condition was not congenital and that no cause
could be attributed to Dean's condition, absent a postmortem
examination. 	According to Dr. Ellenbogen, the pathologic
diagnosis was an "inflammation or infiltration of the conduction
system tissue" within the heart. 	Dr. Ellenbogen testified that
between twenty to thirty percent of cases with this type of heart
disease, which results from a conduction system block between the
chambers of the heart, are attributable to unknown causes. 	He
also testified that the percentage of such cases is greater for
persons in Dean's age range. 	He further reported that "Dean has
complete heart block for which there is no clear-cut or obvious
etiology." 	He did not know what had caused the inflammation or
infiltration of the inflammatory cells in Dean's heart and could
only determine that by postmortem biopsy of Dean's heart.
Dr. Hess testified that "[i]diopathic is a term that means we
don't know." 	Although he testified that "idiopathic" did not
apply to Dean's disease because the heart block resulted from the
emergence of a "cell death gene," Dr. Hess agreed that the "cell
death gene" was not congenital. 	He testified "with 90 percent
certainty" that the disease involved "progressive fibrosis and
loss of function of the conducting system of the heart." 	Dr. Hess
further testified that he did not know when the cell death process
actually began, but he believed it developed during the time Dean
was employed as a firefighter. 	However, Dr. Hess could not say
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what caused Dean's noncongenital condition to develop, and he
agreed with Dr. Ellenbogen that only a postmortem examination
would reveal the true cause.
Dr. Schwartz clearly related Dean's disease to his
employment. 	The commission found, however, that "Dr. Schwartz
never treated, examined, met with, or even spoke with the
claimant," and gave no "significant evidentiary weight to his
opinion."
The principle is well established that "[m]edical evidence is
. . . subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). 	The testimony of Drs. Ellenbogen and Hess
constitutes credible evidence in support of the commission's
finding. 	Therefore, we hold that the commission did not err in
ruling that the record failed to establish by a preponderance of
credible evidence a non-work-related cause of Dean's disease.
Accordingly, we affirm the commission's award of benefits.
Affirmed.
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