Virginia Court: “Firefighter’s Presumption” Requires Showing of Entitlement to Some Form of Economic Indemnity

Virginia, like a number of other states [see the discussion in Larson’s Workers’ Compensation Law, § 52.07], has a special presumption favoring firefighters (and police officers) as to death or disability from respiratory disease, hypertension or heart disease, and cancer :

Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of (i) salaried or volunteer firefighters, … 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.

Va. Code Ann. § 65.2–402.

The Court of Appeals of Virginia, in Lipscomb v. City of Lynchburg, 2014 Va. App. LEXIS 210 (May 27, 2014), held that while a retired firefighter-medic was not required to show an actual loss of earnings resulting from his claimed heart condition, he was nevertheless required to show entitlement to “some form of economic indemnity” in order to receive the benefit of the presumption. In its opinion, designated “not for publication,” the Court of Appeals indicated that absent a showing of actual lost wages, a claimant could prove such entitlement through evidence of the loss of earning capacity or opportunity. The court added that in the instant case while the retired firefighter provided evidence that he was physically incapacitated during three days of hospitalization, he had not demonstrated any entitlement to economic indemnity for his physical incapacitation. 

Background

Claimant retired in 2009, having worked as a firefighter-medic for over 31 years. Claimant retired due to a work-related knee injury for which he received a workers’ compensation settlement. During and after his retirement, claimant also worked part-time as Director of Legislation for the Virginia Professional Firefighters. One year after retirement, while he was in Richmond, claimant had chest pains. He returned to his hometown, had an EKG at the fire station, and then went to a hospital. Claimant’s personal physician noted that claimant had a history of Type II diabetes, obesity, hypertension, and hyperlipidemia, “recurrent and prolonged chest discomfort” and “multiple risk factors for heart disease.” The physician claimant to a hospital for cardiac evaluation, including catheterization. A cardiologist provided a consultation of claimant and also recommended a catheterization. Claimant was discharged after a three-day stay in the hospital.

Claimant filed a workers’ compensation claim requesting a lifetime award of medical benefits and payment of medical bills related to his “heart disease.” His employer, the City of Lynchburg, defended on the grounds that claimant was not entitled to the firefighter’s presumption because he had been retired since 2009 for knee-related disability and had not sustained a disability as a result of his heart condition.

The deputy commissioner denied the claim, finding that there was no disability, no lost wages, and no lost time from work, only a claim for medical award, and that claimant was not entitled to the presumption. Without benefit of the presumption, the deputy commission found that claimant claimant “failed to sustain his burden of proving, by clear and convincing evidence, that his coronary artery disease [was] a compensable ordinary disease of life.” The full commission affirmed.

Court of Appeals Decision

Relying upon a line of cases that, in turn, had heavily quoted Larson, the court indicated that the disability concept is a blend of two ingredients, (1) disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; (2) de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.

The appellate court continued that claimant had not demonstrated the second component necessary for the presumption to apply: that a disability arose from his disease, as evidenced by a “de facto inability to earn wages.”

The court carefully pointed out that it was not holding that a claimant must prove actual lost wages to show he or she suffered a disability from a medical condition. Rather, a claimant must show an entitlement to some form of economic indemnity or restoration. Absent a showing of actual lost wages, a claimant could prove such entitlement through evidence of the loss of his earning capacity or opportunity. Claimant here had not done so; claimant’s diagnosis had not affected his ability to perform duties as legislative director. The court held, therefore, that the commission did not err in finding that claimant failed to prove he suffered from a “disability” as a result of his heart disease and, therefore, the presumption in Code § 65.2–402 did not apply.

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