Thomas M. Galloway v. Commonwealth/State Police ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia
FINCH WESTON DUFFY
v. Record No. 0945-95-4
COMMONWEALTH OF VIRGINIA/
DEPARTMENT OF STATE POLICE
THOMAS MORTIMER GALLOWAY
OPINION BY
v. Record No. 0978-95-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 9, 1996
COMMONWEALTH OF VIRGINIA/
DEPARTMENT OF STATE POLICE
WESLEY JAMES HUDSON
v. Record No. 0938-95-4
COMMONWEALTH OF VIRGINIA/
DEPARTMENT OF STATE POLICE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach (Jack T. Burgess; Jack T.
Burgess & Associates, P.C., on briefs), for
appellants.
Peter R. Messitt, Senior Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Catherine S. Hammond, Deputy
Attorney General; Gregory E. Lucyk, Senior
Assistant Attorney General; James P. Wheeler,
Assistant Attorney General, on briefs), for
appellee.
Amicus Curiae: Fraternal Order of Police,
Virginia State Lodge (Malcolm Parks, III;
Susan Elaine Sieger; Maloney, Barr &
Huennekens, on briefs), for appellants.
The deputy commissioner awarded wage and medical benefits to
Finch Weston Duffy, Thomas Mortimer Galloway, and Wesley James
Hudson (collectively "claimants"), concluding that employer,
Commonwealth of Virginia/Department of State Police ("employer"),
failed to rebut the presumption provided claimants by Code
§ 65.2-402. The full commission reversed, concluding that
employer was not required to exclude work-related stress as a
contributing factor to the development of claimants' heart
diseases. We disagree and reverse.
BACKGROUND
The evidence in each case was substantially the same and
established the following common facts. In each case, employer
did not dispute that the claimant, having satisfied the necessary
predicates, was entitled to the presumption provided by Code
§ 65.2-402(B). 1 Each claimant testified regarding the stress
associated with his work as a state trooper. Prior to their
heart attacks, all three claimants had been smokers, and each had
a medical history that included one or more of the following
conditions: (1) hypertension; (2) high cholesterol; (3) family
history of heart disease; (4) diabetes; and (5) obesity.
1
Code § 65.2-402(B) provides, in part, that
[h]ypertension or heart disease causing . . .
any health condition or impairment resulting
in total or partial disability of . . . (ii)
members of the State Police Officers'
Retirement System, . . . 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.
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Dr. Richard A. Schwartz testified by deposition for each
claimant. According to Dr. Schwartz, who first addressed the
issues generally, the most relevant inquiry with regard to heart
disease is identification of the factors that accelerate the
process. Dr. Schwartz stated that multiple factors correlate to
the development of coronary artery disease and that there is no
single etiologic cause. He described the following, generally
accepted, correlative factors: (1) cholesterol; (2) smoking; (3)
stress; (4) blood pressure; (5) inactivity; and (6) intercurrent
diseases such as diabetes. Dr. Schwartz assigned equal
contributive weight to each of the factors but noted that the
presence of any, or all, of the factors would not necessarily
produce heart disease. For this reason, Dr. Schwartz testified
that the factors can only be considered correlative, not causal.
Moreover, when a patient exhibits more than one factor, it is
impossible to isolate any single factor and apportion it greater
contributive weight. Dr. Schwartz further testified that smoking
does not cause heart disease. Rather, according to Dr. Schwartz,
the generally accepted opinion is that smoking only correlates
with heart disease.
Dr. Schwartz's testimony with respect to each claimant was
based on his review of the medical records and his examination of
the claimant. Dr. Schwartz identified a combination of risk
factors contributing to each claimant's condition. In each case,
job stress was identified as one contributing risk factor,
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together with at least one of the following factors: (1)
hypertension; (2) smoking; and (3) diabetes. Dr. Schwartz
testified that job stress correlates with the disease process as
do the other factors, and he could not isolate the effect of a
claimant's job stress relative to any of the other factors.
While Dr. Schwartz identified the specific risk factors which, in
his opinion, contributed to the heart disease in each claimant's
case, he was unable to say what actually caused it.
At employer's request, Dr. Robert M. Bennett reviewed
claimants' medical records. However, Dr. Bennett did not conduct
a physical examination of claimants. Dr. Bennett testified
generally that the following are the major risk factors
associated with the development of coronary atherosclerosis: (1)
family history; (2) hypertension; (3) diabetes; (4) smoking; and
(5) cholesterol. Dr. Bennett testified that job stress is also a
risk factor but not a major one. Dr. Bennett identified a
combination of factors specifically contributing to each
claimant's heart disease, including in each case at least three
of the following: (1) high cholesterol; (2) smoking; (3)
hypertension; (4) family history; and (5) diabetes.
In Duffy's case, Dr. Bennett testified that smoking and
cholesterol caused Duffy's heart disease. However, Dr. Bennett
continually referred to these risk factors as contributing or
correlating to the development of Duffy's heart disease. In
Galloway's case, Dr. Bennett testified that Galloway's heart
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disease was caused by smoking, cholesterol, and family history.
However, he later admitted that he could not determine which
factor actually caused Galloway's condition and that the factors
could only be considered correlative. In Hudson's case, Dr.
Bennett did not testify that the risk factors Hudson exhibited
caused his heart disease. Rather, he referred to the risk
factors as contributors and described a person who exhibited such
risk factors as more likely to develop heart disease. Although
Dr. Bennett maintained that smoking causes heart disease, he
admitted that not all smokers develop heart disease.
Dr. Bennett testified that each claimant would have
developed heart disease even had he not been a police officer.
However, he had not reviewed their job descriptions. For that
reason, he could not address the extent to which job stress
contributed to the development of claimants' heart diseases.
Furthermore, Dr. Bennett could not exclude job stress as a factor
contributing to the development of each claimant's heart disease.
In each case, both the deputy commissioner and the full
commission found that employer's evidence failed to exclude
work-related stress as a contributing factor to the development
of claimants' heart diseases. The parties do not dispute that
finding. The full commission reversed the deputy commissioner's
awards, concluding that employer was not required to exclude
work-related stress to rebut the presumption. The commission's
determination of this question is one of law and not binding on
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appeal. See, e.g., City of Waynesboro v. Harter, 1 Va. App. 265,
269, 337 S.E.2d 901, 903 (1985).
ANALYSIS
The purpose of the presumption provided by Code
§ 65.2-401(B) is to establish a causal connection between, inter
alia, disability from heart disease and the occupation of a
state trooper. Page v. City of Richmond, 218 Va. 844, 847, 241
S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App.
424, 426, 424 S.E.2d 243, 244-45 (1992). The presumption of
causation provided by Code § 65.2-402(B) is "overcome by a
preponderance of evidence to the contrary," and, "[i]n the
absence of competent evidence to the contrary, the statutory
presumption controls and the claimant prevails." Lillard, 15 Va.
App. at 426, 424 S.E.2d at 245. The law is well settled that
[i]n order to rebut the presumption, it is
not sufficient that the employer merely
adduce evidence that the heart disease was
not caused by the employment; the employer
must establish by competent medical evidence
a non-work-related cause to rebut or overcome
the statutory presumption that causation
exists.
Fairfax Co. Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033,
1036-37, 421 S.E.2d 668, 670-71 (1992) (citing Virginia Dep't of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307,
308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777.
The issue here is whether the employer must establish a
non-work-related cause to the exclusion of work-related factors.
In Mitchell, this Court held that where the employer's
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"rebuttal evidence fail[s] to exclude a work-related factor as a
cause of the heart disease, the finding of the commission that
the employer failed to rebut the presumption in claimant's favor
is conclusive and binding on appeal." Mitchell, 14 Va. App. at
1034, 421 S.E.2d at 669; see also Talbert, 1 Va. App. at 253, 337
S.E.2d at 308; County of Amherst v. Brockman, 224 Va. 391, 399,
297 S.E.2d 805, 809-10 (1982) (commission's award affirmed if
rebuttal evidence does not exclude stress as possible
"contributing cause"). Here, employer presented significant
evidence of non-work-related factors which may have contributed
to the claimants' conditions, but it did not exclude the
claimants' work as a contributing factor.
Employer argues, and the commission concluded, that Mitchell
does not require the employer to exclude work-related factors to
rebut the presumption. Rather, employer contends Mitchell
establishes a rule of appellate review; viz, that the Court of
Appeals cannot reverse an award where the employer fails to
exclude work as a contributing factor to the claimant's
condition.
However, the rule the commission applied in this case and
which employer urges we should affirm, ignores and conflicts with
other well established principles governing the proof of
causation in workers' compensation cases. We can identify no
decision or policy which would warrant excluding the application
of these principles here.
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In proving causation in a workers' compensation case where
the evidence demonstrates two or more potential causative
factors, one of two conclusions follows. Either, a combination
of factors contributed to cause the disability; or, one of the
factors caused the disability to the exclusion of the others.
The "two causes rule" addresses those cases "where a
disability has two causes: one related to the employment and one
unrelated." Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28, 294
S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222
Va. 30, 32, 278 S.E.2d 801, 803 (1981)); see also Shelton v.
Ennis Business Forms, 1 Va. App. 53, 55, 334 S.E.2d 297, 299
(1985). Under the two causes rule, "full benefits [are] allowed
when it is shown that `the employment is a contributing factor.'"
Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergman, 222
Va. at 32, 278 S.E.2d at 803); see also Shelton, 1 Va. App. at
55, 334 S.E.2d at 299. The "more probable than not rule,"
addresses those cases where only one of a number of possible
factors caused the disability. See id. Under the more probable
than not rule, for the disability to be compensable, it must be
more probable than not that it was caused by the work-related
factor. Id. That is, a preponderance of evidence must show that
work was the cause of the disability. Id.
As in Smith and Bergmann, the evidence in this case proved
that a number of factors contributed to the development of
claimants' conditions. Under the "two causes" rule, causation,
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and therefore compensability, is established when it is shown
that work contributed to the disability. For this reason, we
hold that in a case where the evidence demonstrates that multiple
factors, including job stress, contributed to the development of
a police officer's heart disease, the employer must exclude
work-related stress as a contributing factor to rebut the
presumption of causation.
Here, both the deputy commissioner and the full commission
found that employer's evidence failed to exclude job stress as a
contributing factor. Cf. Doss v. Fairfax County Fire Dept., 229
Va. 440, 441-42, 331 S.E.2d 795, 795-96 (1985) (employer's
evidence established a non-work-related cause to the exclusion of
work-related factors); Cook v. City of Waynesboro, 225 Va. 23,
28-30, 300 S.E.2d 746, 748-49 (1983) (same).
Accordingly, the commission's decisions are reversed, and
the cases are remanded to the commission for entry of awards
consistent with this decision.
Reversed and remanded.
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