Virginia’s Heart Presumption Statute Continues to Kick-up Case Law

Virginia Code Section 65.2-402 provides for a rebuttable presumption for heart disease and hypertension (among other diseases) for multiple classifications of mostly police and fire employees. This presumption applies only if the person invoking it has undergone a pre-employment physical, if requested, and was found free of hypertension or heart disease (whichever disease is being asserted). Moreover, the diagnosis of hypertension or heart disease must result in total or partial disability. Once the claimant has established entitlement to the presumption, the burden then shifts to the employer to establish a preponderance of evidence, both that 1) the claimant’s disease was not caused by his or her employment, and 2) there was a non-work-related cause of the disease. However, the “employer is not required to exclude the possibility that job stress may have been a contributing factor in the development of claimant’s disease.” Bass v. City of Richmond, 258 Va. 103, 113 (citing Augusta Cnty. Sheriff’s Dep’t v. Overbey, 254 Va. 522, 527 (1997) (1st emphasis added; 2nd emphasis in original)).

In two recent Opinions the Full Commission examined the requirement for proof of disability and rebutting the presumption.

The Full Commission’s recent decision in Leftwich v. City of Roanoke, VA00001204016 (Oct. 2, 2019) examined the requirement for a showing of total or partial disability to trigger application of the presumption. The claimant asserted a period of disability that only occurred prior to the date of communication of a diagnosis. The Deputy noted that the claimant was not entitled to the payment of indemnity benefits for that period. Nonetheless, the Deputy Commissioner found that the claimant was still entitled to the presumption, finding no requirement that the period of disability be one for which the claimant was entitled to compensation. The Deputy Commissioner also found that the employer failed to overcome the presumption. The Full Commission, in a split 2-1 Opinion, affirmed. Commissioner Newman writing for the Majority found that Va. Code Section 65.2-402 contained no explicit requirement that the period of disability occur after the date of communication. Concurring, Commissioner Marshall stated “If the General Assembly had intended that total or partial disability necessary to qualify for the Virginia Code Section 65.2-402 presumption had to occur after the date of communication, it would have said so.” Dissenting, Commissioner Rappaport noted that the claimant’s claim only began on August 1, 2018 date of communication, “Virginia Code Section 65.2-402(B) contains no qualifying language which allows a claimant to rely on disability occurring before the occupational disease claim existed,” and “[u]nder the reasoning of the Majority, a claimant could look back years for the qualifying disability to invoke the presumption.”

Another very recent Full Commission Opinion — Stewart v. State Police, VA00001547504 (December 5, 2019)— addressed what is required for an employer to successfully rebut this statutory presumption. Claimant, a lieutenant in the state police, alleged both hypertension and heart disease. The Deputy Commissioner found that the portion of the claim for hypertension was barred by the statute of limitations since claimant had been diagnosed with hypertension and “was fully aware of the presumption statute and its requirements as of 2009, at the latest.” The Deputy Commissioner also found that claim for heart disease was denied since employer overcame the presumption. Claimant sought review of the Deputy Commissioner’s finding that his heart disease was caused by his work as a state trooper. Employer relied upon a questionnaire it had completed by a nuclear cardiologist that had treated the claimant for several years. This physician opined that the claimant’s heart disease was caused by prior CABG, hypertension, hyperlipidemia and obesity. The physician further found that these causes were not related to claimant’s employment, but were instead related to his family history of coronary artery disease. The Full Commission affirmed the Deputy Commissioner’s finding that employer rebutted the statutory presumption on the claim for heart disease. This matter is on appeal to the Court of Appeals.

These cases can be quite tricky and require thoughtful analysis. A checklist for the Virginia adjuster when reviewing a compensability determination includes the following:

1. Make certain that the employee is within the classification of covered employees set forth in Virginia Code Section 65.2-402.
2. Make certain that there is medical evidence of partial or total disability.
3. Check to see whether a pre-employment physical was performed and, if so, was the employee found free of hypertension and/or heart disease.
4. Has the claim been timely filed pursuant to Virginia Code Section 65.2-406 (A) (6) within 2 years after diagnosis is first communicated or within five years from the date of last injurious exposure.
5. Make certain that notice was given of the disease within 60 days as required by Virginia Code Section 65.2-405. Know that prejudice must be shown to prevail on this notice defense.
6. If the presumption has been triggered, is there or can you establish a preponderance of evidence that the disease was not caused by claimant’s employment, and there was a non-work-related cause of the disease. This will very likely require that you have physicians offer supplement medical reports.

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