Amherst County Sheriff's v. Alvin W Goodwin ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
AMHERST COUNTY SHERIFF'S OFFICE AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION* BY
v. Record No. 2011-02-4 JUDGE LARRY G. ELDER
MARCH 4, 2003
ALVIN WAYNE GOODWIN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Whitt & Associates, on brief), for
appellants. Appellants submitting on brief.
(Michael A. Kernbach; Burgess, Kernbach &
Perigard, PLLC, on brief), for appellee.
Appellee submitting on brief.
On appeal after remand by this Court, see Goodwin v.
Amherst County Sheriff's Office, No. 0810-01-4 (Va. Ct. App.
Jan. 29, 2002), the Amherst County Sheriff's Office and Virginia
Municipal Group Self-Insurance Association (employer) appeal
from a decision of the Workers' Compensation Commission (the
commission) awarding benefits to Alvin Wayne Goodwin (claimant)
for occupational heart disease. In the present appeal, employer
asserts the commission erroneously rejected the testimony of
claimant's treating physician as conflicting with the
presumption in Code § 65.2-402 that heart disease in law
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
enforcement personnel is occupational and, thus, erroneously
concluded that employer failed to rebut the presumption.
We hold employer's claims are barred in part by the law of
the case, as determined in the prior appeal to this Court.
Further, we hold credible evidence in the record supports the
commission's conclusion that employer failed to rebut the
presumption. Thus, we affirm.
I.
ANALYSIS
Code § 65.2-402(B) provides in relevant part as follows:
Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of . . . sheriffs and deputy
sheriffs . . . 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.
To rebut this presumption, "the employer must show, by a
preponderance of the evidence, both that 1) the claimant's
disease was not caused by his employment, and 2) there was a
non-work-related cause of the disease." Bass v. City of
Richmond Police Dep't, 258 Va. 103, 112, 515 S.E.2d 557, 561-62
(1999).
In providing that the statutory presumption
may be overcome by a preponderance of the
evidence to the contrary, Code § 65.2-402(B)
implicitly directs the Commission as finder
of fact to consider all evidence on the
issue of causation presented by the
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claimant, as well as by the employer. When
the Commission determines that the employer
has failed to overcome the statutory
presumption, the claimant is entitled to an
award of benefits under the Act. See Code
§§ 65.2-400 to -407. On appeal from this
determination, the reviewing court must
assess whether there is credible evidence to
support the Commission's award.
Id. at 114, 515 S.E.2d at 563.
"[E]vidence that merely rebuts generally the underlying
premise of the statute, which establishes a causal link between
stress and heart disease, is not probative for purposes of
overcoming the presumption [that the heart disease is
occupational]." Medlin v. County of Henrico Police, 34 Va. App.
396, 407, 542 S.E.2d 33, 39 (2001) [hereinafter Medlin I].
"[T]he employer can rebut the Code § 65.2-402 presumption
without attacking the underlying legitimacy of the presumption
itself," id. at 407 n.5, 542 S.E.2d at 39 n.5, but "the employer
may not, in effect, 'repeal' the statute 'by [providing evidence
from a] doctor whose beliefs preclude its possible
application,'" id. at 407, 542 S.E.2d at 38 (quoting Stephens v.
Workmen's Comp. Appeals Bd., 20 Cal. App. 3d 461, 467 (Cal. Ct.
App. 1971)).
A.
EVIDENCE FROM TREATING PHYSICIAN GENERALLY REBUTTING PRESUMPTION
Employer contends a panel of this Court, in deciding the
previous appeal in this matter, erred in applying Medlin I's
prohibition against the use of general evidence denying proof of
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a link between stress and heart disease to the opinion of a
treating physician. It argues that Medlin I applies only to the
opinions of experts hired by the parties for the purpose of
expressing an opinion in existing litigation.
We hold the doctrine of the law of the case precludes our
consideration of that issue in this appeal. "The law of the
case doctrine provides that 'where there have been two appeals
in the same case, between the same parties, and the facts are
the same, nothing decided in the first appeal can be re-examined
on a second appeal.'" County of Henrico Police v. Medlin, 37
Va. App. 756, 763, 561 S.E.2d 60, 63 (2002) (quoting Uninsured
Employer's Fund v. Thrush, 255 Va. 14, 18, 496 S.E.2d 57, 58-59
(1998)). As employer makes clear on brief, the issue of whether
Medlin I applies to the opinion of a treating physician was
decided adversely to it in the previous appeal of this matter.
Thus, we are not at liberty to revisit that issue in this
subsequent appeal.
B.
SUFFICIENCY OF EVIDENCE TO SUPPORT COMMISSION'S
REJECTION OF TREATING PHYSICIAN'S OPINION
Employer argues next that the commission erroneously
rejected all of the opinion testimony of Dr. Thomas W. Nygaard,
claimant's treating physician, as lacking probative value under
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Medlin I. 1 It contends Dr. Nygaard's testimony constituted a
"conce[ssion] that job stress can potentially be a minor factor
in the development of heart disease, but just not in this case."
We disagree and hold that credible evidence in the record
supports the commission's construction of Dr. Nygaard's
testimony.
Under settled principles,
[t]he factual findings of the commission are
conclusive and binding on appeal if
supported by credible evidence in the
record. "The fact that there is contrary
evidence in the record is of no consequence
if there is credible evidence to support the
commission's finding." Wagner Enters., Inc.
v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). "This rule applies when an
expert's opinion contains internal
conflict." Greif Companies/Genesco, Inc. v.
Hensley, 22 Va. App. 546, 552, 471 S.E.2d
803, 806 (1996).
Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552
S.E.2d 372, 375 (2001) (citation omitted). Applying these
principles in Etter, we concluded as follows:
Although some of [the treating physician's]
. . . statements . . . may arguably conflict
with each other, the commission, as fact
finder, was entitled to determine the
weight, meaning, and credibility to give his
respective responses and statements and to
reconcile any possible conflicts therein.
Id. at 444, 552 S.E.2d at 375.
1
Employer does not contest the commission's rejection of
the opinions of Drs. Michael L. Hess and Stuart F. Seides on the
same grounds.
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Similarly, in claimant's case, Dr. Nygaard's statements
were arguably in conflict. In a 1995 letter, Dr. Nygaard stated
that "stress related to [claimant's] work situation [was] . . .
a secondary cause" of his heart disease. However, in a
subsequent deposition, Dr. Nygaard testified, "I would have to
say that it is not known that job stress has any relation to
development of coronary artery disease. . . . Period." He also
said that he was "not aware that being a law enforcement officer
causes coronary heart disease," testified that he was able "to
exclude [claimant's] employment as a cause of his heart
disease," and implied that he did not need to know what
claimant's job duties were in order to do so because "I don't
think there is any employment that I know of that I can say
caused someone's heart disease." As the commission noted, when
Dr. Nygaard was asked whether these statements were inconsistent
with his 1995 opinion, Dr. Nygaard "stood by" his earlier
opinion, "asserting that in older literature stress 'has been [a
secondary risk factor], and it's controversial whether stress
and personality type actually has an effect or correlation with
coronary artery disease.'"
In light of these arguably conflicting statements, the
commission was entitled to conclude Dr. Nygaard's opinion was
that no medical evidence establishes that job stress causes or
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contributes to the development of heart disease. 2 Thus, credible
evidence in the record supported the commission's conclusion,
under Medlin I, that Dr. Nygaard's opinion was not probative on
the issue of whether claimant's work as a deputy sheriff was a
cause of his heart disease. 3
C.
SUFFICIENCY OF EVIDENCE TO REBUT THE PRESUMPTION
Claimant established his entitlement to the Code § 65.2-402
presumption. In order to rebut the presumption, employer was
required to "show, by a preponderance of the evidence, both that
1) the claimant's disease was not caused by his employment, and
2) there was a non-work-related cause of the disease." Bass,
258 Va. at 112, 515 S.E.2d at 561-62. The only evidence
employer offered to prove the first prong of this test came from
Drs. Nygaard, Michael L. Hess and Stuart F. Seides. As
discussed above, however, under Medlin I, the commission was
2
Under no construction of the evidence did Dr. Nygaard
opine, as employer asserts, that stress can cause or contribute
to heart disease but did not cause or contribute to claimant's
heart disease. Under the alternate construction of
Dr. Nygaard's opinion, the one apparently rejected by the
commission, claimant's job stress was a cause of claimant's
heart disease, albeit a secondary rather than primary one.
3
Our holding in Delp v. City of Galax Police, No. 1393-00-3
(Va. Ct. App. Feb. 27, 2001), cited by appellant, does not
require a different result. Delp was unpublished and carries no
precedential value. See, e.g., Fairfax County Sch. Bd. v. Rose,
29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999) (en
banc). Further, Delp is factually and legally distinguishable
from claimant's case.
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justified in finding that the opinions of these physicians were
not probative of the issue because all opined that no scientific
link exists between occupational stress and heart disease.
Thus, employer was unable to meet its burden of proving prong
one of the Bass test, and we need not consider whether the
evidence was sufficient to prove the second prong in order to
conclude that employer has failed to rebut Code § 65.2-402's
presumption that claimant's heart disease is occupational.
II.
For these reasons, we hold employer's claims are barred in
part by the law of the case, as determined in the prior appeal
to this Court. Further, we hold credible evidence in the record
supports the commission's conclusion that employer failed to
rebut the presumption. Thus, we affirm the commission's award
of benefits.
Affirmed.
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