Whitt & Del Bueno, Attorneys at Law

The Heart/Lung Presumption Under the Virginia Workers’ Compensation Act

By Ralph Whitt

Over the past several years, no area of workers’ compensation law in Virginia has been litigated more or re-interpreted more than the heart/lung presumption. It remains, at the same time, probably one of the most misunderstood and arcane provisions of the Virginia Workers’ Compensation Act (“Act”). The purpose of this article is to explain and clarify the current state of the law regarding the presumption, beginning with a brief history and background of the presumption.

History and Background

In 1976, the Virginia General Assembly amended the Act to provide a rebuttable presumption that a causal connection exists between certain public safety occupations and respiratory disease, hypertension and heart disease. This became known as the heart/lung presumption.2 Later, in 1994, certain forms of cancer were added to the presumption.

Ordinarily, under the Act, an employee asserting an entitlement to workers’ compensation benefits for an occupational disease bears the burden of proving by a preponderance of the evidence that the disease “arises out of and in the course of” the employment. Virginia Code § 65.2-400. In 1976, medical science was at a point where proving such a causal connection was nearly impossible in cases involving public safety employees with heart disease, respiratory disease or hypertension, despite the fact that it was widely assumed that such a connection did, in fact, exist. Noting a split in the medical community regarding the impact of stress and environment as a causal connection to pulmonary and cardiac diseases among firemen, the General Assembly determined a “natural and rational nexus” existed between public safety occupations and these diseases. Therefore, the presumption was enacted to aid certain public safety employees in obtaining workers’ compensation benefits for these diseases.

Effect of the Presumption

When applicable, the presumption allows the Commission, as the fact finder, to presume that the condition of the employee is an occupational disease causally related to the employment. The employee must show that he is employed in a covered employment, is disabled by a covered disease, and was found free from that disease in a pre-employment physical, or was not asked to submit to one, for the burden to apply. Once these elements are proven, the burden shifts to the employer to prove by a preponderance of the evidence that (1) the disease resulted from one or more specific non-work related causes and (2) that the disease was not caused by the employment. Bass v. City of Richmond, 258 Va. 103, 515 S.E.2d 557 (1999).

Covered Occupations

Originally, the occupations covered under the presumption included various law enforcement officers and firefighters. Over the years, the list of covered occupations has expanded to include, among others, Virginia Marine Patrol officers, game wardens, full time members of the enforcement division of the Department of Game and Inland Fisheries, Capitol Police officers and special agents of the Department of Alcohol Beverage Control.

Early cases restricted the occupations covered to the express language of the presumption. For example, in a 1977 decision, a police dispatcher was not found to be a member of the police department for purposes of the statute since she was not a law enforcement officer with a firearm or formal police training. Fisher v. City of Williamsburg, 58 OIC 125 (1979).

However, more recently, the trend has been to allow a more liberal interpretation of occupations covered by the Act. The Court of Appeals in County of Augusta v. Cook, 16 Va. App. 247, 430 S.E.2d 546 (1993) found that while a jail officer is not covered under the presumption, a duly sworn deputy sheriff designated as a correctional officer caring for prisoners is eligible for the presumption. In Link v. Commonwealth of Virginia, 71 OIC 143 (1992), a state trooper qualified even though he worked as a dispatcher his last five years before retirement because he carried a firearm and had received the same police training as other law enforcement officers in the department.

A political subdivision can make volunteer groups such as volunteer firefighters, lifesaving and rescue squad members, and auxiliary police or deputy sheriff “employees” for the purpose of the Act by passing a resolution giving such recognition. Absent a resolution, these volunteers can come under the Act if the company or squad for which such volunteer services are provided elects to be included as an employer under the Act. Virginia Code § 65.2-101.

Covered Diseases

Early cases before the Commission were conservative in finding a condition covered under the presumption. For example, in Arnold v. City of Richmond/Bureau of Fire, 60 OIC 24 (1981), an employee was initially diagnosed with a coronary spasm. After follow up tests, the doctor concluded that it was just as likely that his condition resulted from cardiac as well as non-cardiac origins, and therefore, the claim was deemed to not fall under the presumption because it was not established that the condition causing the problem was, in fact, a form of heart disease. Later, in Commonwealth of Virginia/Department of State Police v. Haga, 18 Va. App. 162, 442 S.E.2d 424 (1994), the Court of Appeals attempted to formulate a broad definition of heart disease to include any condition affecting or impairing the normal function of the body. The Court ruled that a coronary heart spasm was now within the category of a heart disease.

However, the definition of “heart disease” in Haga has been called into question by the Virginia Supreme Court in Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996). There, the Court soundly criticized the Court of Appeals’ broad definition of injury and disease as contrary to its prior mandates. As a result, the definitions relating to covered diseases provided in Haga remain in question.

More recently, the Commission has reaffirmed that “chest pains” do not constitute heart disease but that sinus tachycardia (abnormally fast heart rate) is a form of heart disease, although in some cases, medical experts may disagree that it is even a disease at all. PVC’s (premature ventricular contractions), a type of arrhythmia, have also been found to be a form of heart disease, but benign conditions such as sinus arrhythmia may not qualify as diseases.

In a recent decision, the Court of Appeals in Bromser-Kloeden v. Town of Purcellville, 35 Va. App. 252, 544 S.E.2d 381, pet. denied (2001) ruled that cardiomyopathy (enlargement and weakening of heart muscle) may also be a covered disease even though caused by a virus common to the public. This may open the door for firefighters who are eligible to claim respiratory diseases under the presumption to successfully file claims for other viral or bacterial diseases, such as pneumonia, bronchitis and even the common cold.

In 2005, a deputy commissioner ruled that postural orthostatic tachycardia syndrome, a nervous system disorder affecting the body’s regulation of blood pressure, is not heart disease covered under the presumption. Bunting v. City of Suffolk Fire, VWC File No. 219-09-56.

The Cancer Presumption

In 1994, the presumption was expanded for volunteer and salaried firefighters with twelve years of continuous service to include various forms of cancer such as leukemia or pancreatic, prostate, rectal or throat cancer caused by a documented contact with a known or suspected carcinogen, as defined by the International Agency for Research on Cancer. Virginia Code § 65.2-402©. As presumptions go, this was a fairly high burden for the employee to meet. Few, if any, cancer claims under the presumption were successful, primarily because it was difficult or impossible for the claimant to present any evidence of “documented” exposure to the suspected carcinogen.

In 1999, the presumption was amended to delete the requirement that the employee prove that his cancer was caused by a “documented” exposure to a toxic substance. Now, the employee need only prove a covered cancer causing death or disability, twelve years of continuous service and contact on the job during that time with a toxic substance known or suspected to be a carcinogen capable of causing the cancer in question.

In addition, the types of cancer covered under the presumption was expanded to include ovarian and breast cancer.

These cancer claims can be successfully defended. See Waldron v. City of Richmond Fire, VWC File No. 212-68-38 (May 11, 2005). The key to the defense of many cancer claims is to make certain the type of cancer the claimant has is one that falls strictly under the cancers listed in the presumption. Moreover, it is important to determine if any of the substances the claimant has come in contact with are known or suspected carcinogens capable of causing the type of cancer involved. Not all substances are carcinogens and not all carcinogens cause all types of cancer.

Infectious Diseases

Effective July 1, 2002, § 65.2-402.1 was enacted to provide that a similar presumption will be given to certain law enforcement and fire officers for hepatitis, meningococcal meningitis, tuberculosis or HIV, so long as there is a “documented” occupational exposure to bodily fluids. An occupational exposure before July 1, 2002 shall be deemed “documented” automatically whether or not the employee ever gave notice of such exposure to his employer, but for occupational exposure after July 1, 2002, the employee must have given notice, either verbal or in writing, to the employer of the alleged occupational exposure. Occupational exposure means only that the exposure to bodily fluids occurred in the course of normal job duties that puts the employee at risk of infection.

Demonstrating a Disability

Before the presumption may be employed, the disease in question must result in some disability, either total or partial. For example, a firefighter who experiences a diagnosed 30-minute heart condition which only caused him to miss one day of work and no loss in earnings is not entitled to the presumption because the presumption is not applicable to temporary heart impairments.

However, care should be taken not to confuse the extent of the injury with the time the disability lasts. An employee does not need to show the usual period of disability of more than seven days required of other workers’ compensation claims to qualify for the presumption because the definition of total disability and partial disability are separate from and not influenced by the limiting period which governs when compensation benefits begin.

Recently, the Commission further clarified that the disability may result from either the disease itself or from diagnostic testing or other medical procedures related to the treatment of the disease, but the Commission may not consider annual follow up testing to constitute disability if the testing could have been performed at such a time so that the claimant did not miss any time from work. Brightwell v. City of Richmond, VWC File No. 190-41-06 (September 30, 2004).

Pre-Employment Physical Examinations

The presumption provides that an employee submit to a pre-employment physical if asked by his or her employer. If the pre-employment examination concludes that the employee is free from the disease in question, then the presumption will apply. But if the employee is found to have the covered disease at the time of the pre-employment physical, the presumption is disallowed. Code § 65.2-402 ©. However, the presumption will still apply if the employer does not request such a physical.

If the employer administers a pre-employment physical and the results are negative for disease, the presumption will apply. It is up to the employer to make sure that the pre-employment physical thoroughly checks for the appropriate medical conditions. The employer cannot disavow the physical later to the detriment of the employee due to mistakes or shortcomings in the physical. This is why it is important for employers to conduct thorough and comprehensive screenings of employees subject to the presumption, including appropriate non-invasive testing for heart disease. A simple and routine clinical exam rarely is sufficient to discover most forms of heart disease.

While the employer may hire the employee even though the pre-employment physical is positive for a covered disease, the presumption is still not allowed because the employee’s condition pre-dated his employment. At present, it is uncertain as to whether pre-existing heart or lung disease which is not discovered in a pre-employment physical will later disqualify the employee from the presumption.

Statute of Limitations

Under Virginia Code § 65.2-406, all workers’ compensation claims for occupational disease must be made within a two-year period from the date the occupational nature of the disease is communicated to the employee. This date is often referred to as the “date of accident” or “date of communication” for occupational disease claims under the Act. The Commission (not just the employer) must receive all claims within two years of the date of communication of a diagnosis of an occupational disease to the employee or within five years of the date of the last injurious exposure in employment, whichever comes first.

The presumption makes this issue more complicated because traditionally, it is unnecessary that the employee be told by a physician or other health care workers that his disease is work-related for the employee to obtain benefits under the presumption. The presumption supplies the necessary “communication” that the disease is an occupational disease. Of course, if the employee is told by a physician or other health care worker that his disease is an occupational disease, meaning it is one caused by his employment, then the statute of limitations will begin to run just as it would in any other occupational disease claim.

Because an employee may file a claim under the presumption without having prior communication of a diagnosis of an occupational disease, the Commission has ruled that in such circumstances, the date the application was filed with the Commission serves as the “date of accident” which starts the running of the statute of limitations. Rahn v. City of Virginia Beach Sheriff’s Dept., VWC File No. 159-85-78 (September 28, 1994). In Rahn, the Commission reasoned that it was fair that the date the employee asserts his rights to serve as the accident date since that was the date he recognized that his condition was related to his occupation.

This issue was clarified further in Cronin v. City of Alexandria, 20 Va. App. 503, 458 S.E.2d 314 (1995), aff’d, 252 Va. 1 471 S.E.2d 184 (1996), where the Court of Appeals was presented with a claim filed outside of the two-year period. The Court stated that the date that the employee first obtains knowledge that he has a potentially compensable claim under the Act, through a doctor or other means, begins the running of the statute of limitations. Thus, the employee’s time for filing a claim with the Commission can begin to run when he realizes that he has a claim under the presumption or that his disease is work-related, even though that fact was not fully communicated to him by his doctor.

Recently, the Commission ruled that the statute of limitations can begin to run on a claim under the presumption even if all of the elements necessary to invoke the presumption are not present. For example, in order to qualify for the presumption, the disease must be disabling. If an employee has a disease that is not yet disabling, but the employee knows or believes that the disease is work-related, then the statute of limitations begins to run at that time. The employee may file a claim at that time, but he would not enjoy the presumption, making it extremely difficult to prevail. If the employee waits more than two years thereafter to file a claim when the disease becomes disabling to invoke the presumption, then it may be too late.

This ruling has been challenged as “unfair” to injured workers, and it is likely that it will be determined by the Court of Appeals.

By contrast, however, the mere suspicion on the part of the employee that his disease may be caused by his employment is not enough to trigger the running of the statute of limitations.

Even in the absence of a communication of an occupational disease, either from a physician or other source, the statute of limitations can run if the claim is filed with he Commission more than five years from the date the employee was last injuriously exposed to the cause of the disease at work. This is often seen in cases where the employee is diagnosed with a covered disease many years after retiring from work. In such an instance, the employee would not have been exposed to the cause or causes of his disease within the required five-year period, and therefore, the claim could never be timely filed.

Commencing Benefits

The date the employee first learns, from whatever source, that his disease is occupationally related is not only important for the purposes of determining whether the statute of limitations has expired, but it is equally important in determining when compensation and medical benefits begin under the Act. This is so because the same event (i.e.- the “date of accident”) constitutes the beginning of the claim for both the statute of limitations and the commencement of benefits under Virginia Code § 65.2-403.

Based upon the holdings in Rahn v. City of Virginia Beach Sheriff’s Department, supra and Cronin v. City of Alexandria, supra, the Commission has consistently taken the position that in the absence of an express communication to the employee of a diagnosis of an occupational disease by a physician, benefits do not begin until the claimant becomes aware that his condition is occupationally related or otherwise covered under the Act. The same standards as are utilized in determining when this event takes place for statute of limitations purposes are used for determining when benefits begin for an otherwise compensable claim under the presumption. The mere suspicion that the disease is work-related is not enough to trigger the running of benefits, and if an employee with such a suspicion does not file his claim until many months after his diagnosis and treatment for a disease covered under the presumption, then he may not be entitled to full benefits, even though the claim may be awarded as compensable under the Act.

Obviously, the issue of when a claim matures can be a double-edged sword. If the “date of accident” is too early in relation to the filing of the claim, then the claim may be barred by the statute of limitations; if it is too late, then the employee may forfeit certain benefits. In some cases, employees must walk a tightrope between these two extremes.

Overcoming the Presumption

Once applicable, the presumption in Virginia Code § 65.2-402 may only be overcome by the employer “by a preponderance of competent evidence to the contrary.” As mentioned earlier, the burden is then on the employer to prove by a preponderance of the evidence that (1) the disease resulted from a specific non-work related cause and (2) that the disease was not caused by the employment. Both prongs of the test must be met by the employer to successfully rebut the presumption.

The evolution of this test and how it is applied to individual claims began in 1978 shortly after the presumption was enacted. The Virginia Supreme Court stated that to rebut the presumption “the employer must adduce competent medical evidence of a non-work related cause of the disabling disease.” Page v. City of Richmond, 218 Va. 844, 241 S.E.2d 775 (1978). The test was later expanded by the Court of Appeals in Virginia Department of State Police v. Talbert, 1 Va. App. 250, 337 S.E.2d 307 (1985), by adding a second prong that the employer prove that the disease was not caused by the employment. This two-pronged test was reaffirmed in 1999 by the Virginia Supreme Court in Bass v. City of Richmond, supra.

In the years immediately following the enactment of the presumption, many claims were awarded under the presumption simply because medical science at that time knew little about the causes of heart disease in particular. If the origin or cause of the disease is unknown, then the first prong of the test cannot be met by the employer, even if the evidence otherwise indicates that the disease is probably not work-related.

However, over the years, medical science has been able to conclude that certain risk factors for heart disease, for example, can cause or contribute to causing the disease in certain cases. The major risk factors include cigarette smoking, diabetes, hypertension, abnormal cholesterol and family history. Minor risk factors include obesity, male gender and stress.

In the last decade, presumption claims began to be defended more vigorously by employers who attempted to establish, usually by employing hired experts, that heart disease in individual cases was likely caused by several non-work-related risk factors and not the employment. This was met with mixed results, primarily because the medical community has been divided on the issue with some experts convinced that stress does play a role in heart disease even though it has not been definitively proven while other medical experts continue to take the position that there is no positive evidence that stress contributes to the disease process. However, because even many medical experts could not affirmatively exclude the employment as a contributing factor, overcoming the presumption had become extremely difficult for employers over the years.

In 1997, the Virginia Supreme Court decision in Augusta County v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), suggested that the employer could overcome the presumption by merely proving at least one non-work-related cause of the disease without having to exclude the possibility that the employment was a cause in order to rebut the presumption. The Overbey decision was significant because proving a non-work-related cause of heart disease, for example, was relatively simple since many of the universally recognized risk factors for heart disease such as smoking, elevated cholesterol, hypertension, diabetes and family history were present in almost every case. To a lesser extent, the same was true with respect to lung disease.

However, in 1999, the Virginia Supreme Court in Bass v. City of Richmond, supra, clarified that the decision in Overbey did not do away with the two-prong test for overcoming the presumption, and therefore, the employer still must prove both non-work-related causes of the disease and that the disease was not caused by the employment.

At the same time, the Court rejected the notion that the employer must “exclude” the possibility that the employment was a cause, a standard which to many medical experts carried with it the idea that the employment must be eliminated with absolute certainty which is impossible in any case. Rather, the question is whether the employment probably was a contributing cause of the disease. In addition, if the employment is merely a “trivial or insignificant” cause of the heart disease, then the employer can prevail if the other prong of the test is met. Nevertheless, the task for the employer in overcoming the presumption remains daunting.

As if this were not a difficult enough task, the Court of Appeals recently in Medlin v. Henrico County Police, 34 Va. App. 396, 542 S.E.2d 32 (2001), pet. denied (2002), ruled that opinions from experts hired by the employer could not be considered if those opinions were based on a premise inconsistent with the presumption that occupational stress can cause heart disease. In other words, if the expert is of the belief that it has never been proven that stress causes heart disease, and that belief forms the basis for the expert’s opinion that an employee’s heart disease was not caused by job stress, then that opinion cannot be considered by the Commission in determining if the presumption has been overcome. The Court reasoned that the Virginia General Assembly has already determined that stress can cause heart disease, and therefore, it would thwart the purpose of the presumption to allow an expert to render an opinion inconsistent with legislative intent.

Presumably, an expert would still be allowed to render an opinion that job stress did not cause an employee’s heart disease if that expert believed that job stress is capable of causing heart disease, but just not in the particular case in which he is testifying. For example, it may be that the employee did not work in the occupation long enough for the job to be a factor in his heart disease. However, the Commission seems not inclined to adopt even this argument and has held recently that any exposure on the job to the hazards or potential causes of the disease is enough to award the claim.

Medlin has even been expanded to exclude opinions not of hired medical experts but of the treating physician when those opinions conflict with the premise of the presumption statute. Goodwin v. Amherst County Sheriff’s Office.

The Medlin rationale has even been used to support the award of benefits under the presumption to a firefighter who contracted respiratory disease in the form of lung cancer because the employer could not refute that the employee was exposed on the job to carcinogens capable of causing the disease. Woody v. Henrico County Fire Department, VWC File No. 168-81-70 (June 22, 2001).

Fortunately, the full Commission decision in Woody has been reversed by the Court of Appeals on the basis that the legal standard applied in that case by the Commission was wrong. Henrico County Fire Department v. Woody, 39 Va. App. 322, 572 S.E.2d 526 (2002). The Court of Appeals reiterated that the presumption is a rebuttable presumption and that the Commission must weigh all of the evidence to determine if the employer has overcome the presumption by a preponderance of the evidence. The Court of Appeals clarified that mere evidence of any exposure on the job to the potential causes of any covered disease is not enough to award the claim as an occupational disease in the face of evidence to the contrary.

The full Commission on remand nevertheless awarded the claim on the basis that no one knew how much exposure the claimant had on the job to toxic substances, and therefore, the occupational exposure could not be ruled out as a contributing cause. However, in a later decision, Snyder v. York County Fire, the full Commission denied a similar lung cancer claim on the basis that the claimant had not been a fire fighter long enough for any occupational exposure to have likely been a contributing cause of his cancer.

Conclusion

Selected public safety employees who contract heart disease, respiratory disease and certain cancers enjoy a presumption that the disease is work-related and therefore, compensable under the Virginia Workers’ Compensation Act. Although the presumption is rebuttable, it has been interpreted so as to provide benefits in most cases. The trend recently has been in favor of awarding benefits under the presumption, and it is expected that that trend will continue. However, some of the issues discussed in this article are still on appeal in the appellate courts, and therefore, how far the Commission, the Courts and the General Assembly will go in awarding these claims remains uncertain.