Jones v. Von Moll , 295 Va. 497 ( 2018 )

PRESENT: All the Justices
EDDIE R. JONES, SR.
OPINION BY
v. Record No. 170639 JUSTICE S. BERNARD GOODWYN
June 7, 2018
COMMONWEALTH OF VIRGINIA,
ex rel. DAVID VON MOLL, COMPTROLLER
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
In this appeal, we consider whether the circuit court erred when it ruled that a retired
firefighter was not a disabled person entitled to receive health insurance benefits under the
Virginia Line of Duty Death and Disability Act.
BACKGROUND
On May 21, 2015, Eddie R. Jones, Sr. (Jones) filed a complaint in the Circuit Court of the
City of Hampton, appealing “an adverse decision of the Commonwealth of Virginia/Office of the
Comptroller” (Comptroller) that denied him health insurance coverage, owed to disabled
persons, under the Virginia Line of Duty Death and Disability Act, Code § 9.1-400 et seq. (the
Act). 1 After a bench trial, the circuit court concluded that the Comptroller had properly applied
the provisions of the Act, and dismissed Jones’s complaint.
1
This opinion interprets the Act as it existed in 2014 because Jones filed his claim for
benefits with the Comptroller in 2014. The Act was subsequently amended, but “rights accrued,
claims arising, . . . under the former law, or judgments rendered before the passage of an
amended statute, will not be affected by it, but will be governed by the original statute, unless a
contrary intention is expressed in the later statute.” Ferguson v. Ferguson, 169 Va. 77, 87, 192
S.E. 774, 777 (1937); Code § 1-239. The Act does not contain such a contrary intention.
FACTS
Before testimony was taken at trial, counsel for Jones read a list of agreed stipulations
into the record:
1. The parties agree that [Jones] was employed with the City of Hampton as a
firefighter from October 5, 1977 to August 1, 2010.
2. The parties agree that [Jones] took a service-connected retirement—that is, a
retirement based on years of service, and was effectively retired from the fire
department as of August 1, 2010.
3. The parties agree that [Jones] was diagnosed with throat cancer on March 11,
2011.
4. The parties agree that one of his treating physicians, Dr. John Mattern, . . .
opined that [Jones] was incapacitated from further performance of duty as of
November 6, 2013.
Jones testified that he did not experience any health problems while he worked as a
firefighter and that he “never had any issues with the physicals” that were administered each
year. He explained that his retirement was not health-related but occurred because the City
“offered a 20 percent buyout.”
Around October 2010, Jones began experiencing a problem with his ear. He visited an
ear, nose, and throat specialist who discovered that he had a cyst in his “nasal area.” A biopsy
was performed and Jones was diagnosed with throat cancer on March 11, 2011. Thereafter,
Jones underwent “35 radiation treatments and 12 rounds of chemo.”
Jones submitted into evidence a November 6, 2013 Report (Report) completed by Dr.
Mattern, the oncologist who performed the chemotherapy treatments. The Report stated that
Jones became unable to work as of the date of his diagnosis, March 11, 2011, and that although
the cancer was in remission, “[t]here is no way that [Jones] can safely work in any polluted
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atmosphere (fumes or smoke) as this would trigger significant respiratory distress and airway
compromise.” Dr. Mattern explained that Jones “should be considered disabled on the basis of a
very bad cancer,” which could “recur at any time,” and “the toxicities of treatment have been
such that [Jones] . . . is at risk for developing significant respiratory distress if exposed to any
kinds of fumes or smoke.”
Jones also submitted a “stipulated award order” entered by the Virginia Workers’
Compensation Commission that awarded him “temporary total disability benefits” and “all
reasonable and necessary medical expenses” incurred as a result of his throat cancer.
Finally, Jones submitted the letter from the Comptroller, dated May 20, 2014, that denied
him benefits under the Act. The letter stated that because Jones “began service retirement on
August 1, 2010, thereby ending [his] performance of duty as a firefighter,” his physician’s
determination “on November 6, 2013 that [he] was no longer fit for duty” did not qualify him to
receive health insurance benefits as a “disabled person” under the Act. In the letter, the
Comptroller explained that Jones was not “an individual who ‘has become mentally or physically
incapacitated so as to prevent the further performance of duty.’”
The line of duty coordinator for the Comptroller was called as a witness and testified that
she is responsible for “review[ing] the claims as they [come] in and put[ting] together a package
for the Comptroller with a recommendation of whether it meets the Code as it’s currently
written.” She testified that it was significant that Jones retired three years prior to the Report,
which stated that he could no longer perform the duties of a firefighter, because “[a]s a retiree
[Jones] is not performing those duties any longer.” She stated that it was the opinion of the
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Comptroller’s office that “Mr. Jones had retired and was no longer an active employee that could
be disabled from his profession.” She stated that the opinion was based upon the definition of a
disabled person as expressed in the Act.
After closing arguments, the court ruled that under the plain reading of the Act, Jones’s
duties as a firefighter had ceased as of retirement and, because he became disabled after he
retired, his claim for insurance coverage under the Act was not viable. The court entered an
order dismissing Jones’s complaint.
Jones appeals. His assignment of error states:
The trial court erred as a matter of law in its statutory interpretation of § 9.1-
401.B, Code of Virginia (1950), as amended, that Jones was not entitled to the
line of duty disability benefit.
ANALYSIS
Jones argues that the circuit court erred when it denied him benefits under the Act
because, under Code § 9.1-401(B), he qualifies for continued health insurance coverage as
someone whose disability “is a condition subject to [Code] § 65.2-402 and . . . arose out of and
in the course of his employment.” He contends that in adopting the Act, the General Assembly
intended “to include as many qualifying disabled firefighters as possible based on disabling
events, including those arising under [Code] § 65.2-402(C), the throat cancer involved in this
case.” The Commonwealth argues that the circuit court did not err because Jones is not a
“disabled person” as defined within the Act.
An issue of statutory interpretation “is subject to de novo review by this Court.”
Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 504 (2008).
When interpreting statutes, courts ascertain and give effect to the intention of the
legislature. That intent is usually self-evident from the words used in the statute.
Consequently, courts apply the plain language of a statute unless the terms are
ambiguous, or applying the plain language would lead to an absurd result.
4
Id. (citation and internal quotation marks omitted).
Although the practical construction given to a statute by public officials charged
with its enforcement is entitled to great weight by the courts and in doubtful cases
will be regarded as decisive, when an issue involves a pure question of statutory
interpretation, that issue does not invoke the agency’s specialized competence but
is a question of law to be decided by the courts.
Id. (emphasis added) (citations and internal quotation marks omitted).
City firefighters are listed among the qualifying positions entitled to benefits under the
Act. As applicable to the issues in this case, former Code § 9.1-401(B) provided:
If the disabled person’s disability (i) occurred while in the line of duty as the
direct or proximate result of the performance of his duty or (ii) was subject to the
provisions of §§ 27-40.1, 27-40.2, 51.1-813 or § 65.2-402, and arose out of and in
the course of his employment, the disabled person, his surviving spouse and any
dependents shall be afforded continued health insurance coverage. The cost of
such health insurance coverage shall be paid in full out of the general fund of the
state treasury.
(Emphasis added.) Under the provisions of Code § 65.2-402(C), which is contained in the
Workers’ Compensation Act, Code § 65.2-100, et seq., it is presumed that, subject to certain
conditions, throat cancer that develops in a firefighter is “an occupational disease, suffered in the
line of duty.” It is undisputed that the throat cancer suffered by Jones is an occupational disease.
The Act defines a “disabled person” as
any individual who, as the direct or proximate result of the performance of his
duty . . . has become mentally or physically incapacitated so as to prevent the
further performance of duty where such incapacity is likely to become permanent.
Code § 9.1-400(B) (emphasis added). Thus, the question that must be answered is whether the
throat cancer prevented Jones from “further performance of duty” as a firefighter.
Jones contends that the Act does not inquire into the employment status of the disabled
person, “nor is entitlement to the benefit predicated on the disability arising before separation
from regular employment.” We disagree.
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The phrase “further performance of duty” is not defined within the Act. “When, as here,
a statute contains no express definition of a term, the general rule of statutory construction is to
infer the legislature’s intent from the plain meaning of the language used.” Hubbard v. Henrico
Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). In pertinent part, the plain meaning
of “further” is “farther” or “going or extending beyond what exists: additional.” Webster’s
Third New International Dictionary 924 (2002). “Performance” is defined, in relevant part, as
“the act or process of carrying out something” or “the fulfillment of a claim, promise, or
request.” Id. at 1678.
“Further performance of duty” concerns additional acts in fulfillment of an ongoing duty
that extends beyond the promise or duty already completed. In the context of Code § 9.1-
400(B), this additional fulfillment regards duties required of a position that qualifies under the
Act. We conclude that the plain meaning of “further performance of duty” requires that the
disability must occur while an individual is still carrying out obligations in the line of duty, in
order for that person to be a “disabled person” under the Act. In this case, the obligations would
be those of a firefighter. Thus, for Jones to receive insurance benefits under the Act as a
“disabled person,” he must have become incapacitated, whether by injury or occupational
disease, while he was continuing to carry out his duties as a firefighter.
Throat cancer is properly considered an occupational disease which arose out of Jones’s
employment. He is entitled to and has been awarded benefits under the Workers’ Compensation
Act. However, the occupational disease did not result in a disability while Jones was still
carrying out his duties as a firefighter. Therefore, he is not entitled to insurance benefits under
Code § 9.1-401(B), because he does not meet the definition of a “disabled person” under the Act.
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Jones claims that because his injury is listed within Code § 65.2-402, he should be able to
benefit from the five-year look-back provision in Code § 65.2-406, and thus, he is entitled to
claim benefits under the Act for up to five years after his retirement. This argument fails because
it is not supported by the plain language of the applicable statutes. Although Code § 9.1-401(B)
references Code § 65.2-402 of the Workers’ Compensation Act, it does not also reference Code
§ 65.2-406, which contains the look-back provision of the Workers’ Compensation Act. Further,
Code § 9.1-400(B) does not contain a look-back provision within the definition of “disabled
person,” and Code § 9.1-401(B), which provides the benefits to a “disabled person,” also does
not contain a look-back provision.
Notably, Code § 9.1-402(C), 2 which provides benefits under the Act for the beneficiaries
of individuals who die as the result of an occupational disease, expressly includes a five-year
look-back provision. Thus, the omission of a look-back provision in Code § 9.1-401(B) is
presumed to be intentional. Halifax Corp. v. First Union Nat’l Bank, 262 Va. 91, 100, 546
S.E.2d 696, 702 (2001) (“[W]hen the General Assembly includes specific language in one
section of a statute, but omits that language from another section of the statute, we must presume
that the exclusion of the language was intentional.”).
2
In 2014, the applicable language of Code § 9.1-402(C) stated:
Subject to the provisions of §§ 27-40.1, 27-40.2, 51.1-813, or § 65.2-402, if the
deceased person’s death (i) arose out of and in the course of his employment or
(ii) was within five years from his date of retirement, his beneficiary shall be
entitled to receive the sum of $25,000, which shall be payable out of the general
fund of the state treasury.
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CONCLUSION
Because Jones was retired when he was determined to be “physically incapacitated,” his
incapacity did not prevent the “further performance” of his duties as a firefighter, because he no
longer had firefighting duties to perform. Accordingly, Jones is not a “disabled person” under
the Act, and for that reason, he is not “entitled to continued health insurance coverage” under
Code § 9.1-401(B). Accordingly, we will affirm the judgment of the circuit court.
Affirmed.
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