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BURDEN OF PROOF
See Evidence
"In order to establish entitlement to compensation benefits, the
claimant must prove, by a preponderance of the evidence, an injury by accident which arose
out of and in the course of his employment." Classic Floors, Inc. v. Guy, 9
Va. App. 90, 95, 383 S.E.2d 761, 764 (1989).
The burden . . . [is] not upon the employer to prove that . . . [the
employee's] injury did not arise out of his employment; the burden of proof . . . [is]
upon . . . [the employee] to prove how the injury occurred and that it is compensable. Goodyear
Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 387, 363 S.E.2d 433, 440 (1987).
The commission correctly rejected claimant's witness' testimony. Her
testimony that claimant was actually lifting a patient, contradicted claimant's own
testimony. Under the doctrine enunciated in Massie v. Firmstone, 134 Va. 450, 462,
114 S.E. 652, 656 (1922), claimant could not rise above her own testimony, which was
insufficient to prove an injury by accident arising out of her employment. Therefore,
claimant failed to prove as a matter of law that her injury arose out of her employment. Jerry Anne Bickell v. Lake
Taylor Hospital, Record No. 1328-98-1 (November 24, 1998).
A claimant must prove the existence of an occupational disease
by a preponderance of the evidence. Virginia Dep't of State Police v. Talbert,
1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985).
The claimant must prove marketing during periods of partial
incapacity even if the employer does not defend the case. The commission did not
err in denying claimant an award of temporary total disability benefits based upon its
finding that claimant failed to prove that he marketed his residual work capacity, where
the employer did not appear at the hearing or present a defense. Timothy Brandon v. Sunstates
Maintenance Corp., Record No. 1039-98-3 (October 6, 1998).
In 1997, the General Assembly amended Code Sec. 65.2-400
to provide that "condition[s] of carpal tunnel syndrome are not occupational diseases
but are ordinary diseases of life as defined in [Code] Sec. 65.2-401."
The General Assembly also amended Code Sec. 65.2-401
to provide that the elements required to prove a compensable ordinary disease of life must
be "established by clear and convincing evidence, (not a mere probability)." The
Court of Appeals noted that the amendment deleted from the statute the words "to a
reasonable medical certainty." The current statutory standard is well defined in
Virginia. Clear and convincing evidence has been defined as "that measure or degree
of proof which will produce in the mind of the trier of facts a firm belief or conviction
as to the allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal." Walker Agcy.
& Aetna Cas. Co. v. Lucas, 215 Va. 535, 540-41, 211S.E.2d 88, 92 (1975) (citation
omitted). The commission could properly conclude that the elements of compensable CTS had
been established by clear and convincing evidence where the uncontradicted opinion of a
physician was that "there is a high probability that the carpal
tunnel is a result of her work environment." National Fruit Product
Company, Inc. v. Brenda Staton, Record No. 1704-98-4 (December
15, 1998).
No Presumption of Continuing Disability.
There is no presumption in the law that once a disability has been established, a
claimant will be assumed to remain disabled for an indefinite period of time. To
the contrary, a party seeking compensation bears the burden of
proving his disability and the periods of that disability.
Marshall Erdman
& Assocs., Inc. v. Loehr, 24 Va. App. 670, 679,485 S.E.2d 145, 149
(1997).
Nature of the Heart-Lung
Presumption--Burden of Proof is Shifted to Employer.
In Claude A.
Bass, Jr.
v. City of Richmond Police Department, Record No. 980612; John B.
Patton, Jr.
v. Loudoun County Board of Supervisors, Record No. 980861; City
of Hopewell, et al.
v. Michael W. Tirpak, Record No. 982126 (June 11, 1999), WP
Version, the Supreme Court clarified what is needed to overcome the
statutory presumption. Under the statutory language, the employer may overcome the
presumption by producing "a preponderance of competent evidence
to the contrary." Code Sec. 65.2-402(B).
To overcome the
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. See
Fairfax County Fire
& Rescue Servs. v. Newman, 222 Va. 535, 539, 281 S.E.2d 897, 899-900 (1981);
Page v. City of Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777
(1978). Thus, if the
employer does not prove by a preponderance of the evidence both
parts of this two-part test, the employer has failed to overcome
the statutory presumption. Id. In Code Sec. 65.2-402(B), the legislature included
"[h]ypertension or heart disease" among those diseases that
"shall be presumed to be occupational diseases . . . unless such
presumption is overcome by a preponderance of competent evidence
to the contrary." In Page v. City of Richmond, 218 Va. 844,
847, 241 S.E.2d 775, 777 (1978), the Supreme Court explained that the purpose
of the statutory presumption is to establish by law, in the
absence of evidence, a causal connection between certain
occupations and death or disability resulting from specified
diseases. The Court held that a claimant firefighter was entitled to
compensation benefits because his employer had failed to
overcome the statutory presumption by showing 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. Id. at 847-
48, 241 S.E.2d at 777. The Supreme Court again applied this two-part test in Fairfax County Fire
& Rescue Servs. v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981).
There, a firefighter who developed sarcoidosis, a disease
affecting the lungs, relied on the statutory presumption of
occupational disease provided by former Code Sec. 65.1-47.1. The
employer produced medical testimony that the firefighter's
employment did not cause his disease, but the employer failed to
present any medical evidence of a non-work-related cause of the
disabling disease. Since the employer failed to prove one of
the two elements required to overcome the statutory presumption, the Court upheld the Commission's award of benefits.
Id. at 539, 281
S.E.2d at 900; see also Berry v. County of Henrico, 219 Va. 259,
265, 247 S.E.2d 389, 392 (1978).
In Doss v. Fairfax County Fire & Rescue Dep't., 229 Va.
440, 331 S.E.2d 795 (1985), the Supreme Court applied the two-part test to a
firefighter's claim for benefits for a respiratory disease. The
claimant relied on the statutory presumption and presented no
evidence to counter the employer's medical evidence that 1) the
claimant's job did not cause his respiratory disability, and 2)
the claimant's condition was "more than likely a hereditary
phenomenon." Id. at 441-42, 331 S.E.2d at 795-96. The Court held that
the Commission did not err in ruling that the employer presented
sufficient evidence to overcome the statutory presumption, and
that the evidence concerning a "hereditary" cause was sufficient
to meet the Page requirement that the employer produce evidence
of a non-work-related cause of the disease. Id. at 442-43, 331
S.E.2d at 796-97.
In Augusta
County Sheriff's Dep't v. Overbey, 254 Va. 522, 492
S.E.2d 631 (1997), the employer acknowledged the applicability of
the two-part test by conceding that, to overcome the statutory
presumption of Code Sec. 65.2-402(B), the employer was required "to
establish a non-work-related cause for [the claimant's] heart
condition and that job stress was not the cause." 254 Va. at
526, 492 S.E.2d at 633. The claimant contended, however, that
the presumption also imposed on the employer the burden of
"producing a preponderance of evidence excluding the possibility
that his heart disease was work related." Id.
In rejecting the claimant's contention, the Supreme Court quoted from Doss, stating that, to overcome the statutory presumption, the
employer merely "must adduce competent medical evidence of a
non-work-related cause of the disabling disease." Overbey, 254
Va. at 527, 492 S.E.2d at 634 (quoting Doss, 229 Va. at 442, 331
S.E.2d at 796). This quotation was made in the context of the Court's
holding that, to overcome the statutory presumption of Code Sec. 65.2-402(B), an employer is not required to exclude the
possibility that job stress may have been a contributing factor
in the development of a claimant's heart disease. Id. at 527,
492 S.E.2d at 634.
Sec.
65.2-402(C) presumption requires proof of cause. After 30 years with
the fire department, Claimant was diagnosed with prostate cancer,
an ordinary disease of life of unknown etiology. Claimant's evidence, however, documented an exposure to
cadmium, a substance identified as carcinogenic by the International
Agency for Research on Cancer (IARC), as a suspected cause of prostate
cancer. Code Sec. 65.2-402(C), provides, in pertinent part, that “prostate
cancer, caused by a documented contact with a toxic substance that a . . .
fire fighter . . . has encountered in the line of duty and that causes . .
. any health condition or impairment[,] . . . shall be presumed to be an
occupational disease, suffered in the line of duty, that is covered by
this title, unless such presumption is overcome by a preponderance of
competent evidence to the contrary. For
the purposes of this section, a ‘toxic substance’ is one which is a
known or suspected carcinogen, as defined by the International Agency for
Research on Cancer [IARC], and which causes, or is suspected to cause, . .
. prostate . . . cancer.” Code Sec. 65.2-402
(C) explicitly
provides that the presumption of occupational disease applies to prostate
cancer "that is caused by a documented contact with a toxic
substance." Claimant was not entitled to the statutory presumption
of occupational disease because he did not prove that exposure to the
toxic substance cadmium "caused or contributed to cause, his prostate
cancer." Newell
E. Whitehead, Jr. v. City of Portsmouth FD, Record No. 2975-98-1
(July 27, 1999). WP
Version.