Virginia Police Officer Denied Workers’ Compensation Despite Statutory Presumption

A Virginia police officer has been denied workers’ compensation benefits for a heart condition despite the state law that his condition is presumed to be work-related.

The Virginia Workers’ Compensation Commission (VWCC) has ruled that the officer’s public university employer, Old Dominion University, successfully rebutted the statutory presumption with evidence that the officer was born with the disease and thus it was outside the course of his employment.

As a result, John Thomson has been denied medical benefits and temporary total disability for his atrioventricular nodal reentrant tachycardia (AVNRT) and supraventricular tachycardia (SVT).

On an appeal by Old Dominion, the VWCC reversed a deputy commissioner’s September 2023 ruling that the university failed to convincingly rebut the workplace presumption and awarding workers’ compensation benefits to Thomson. The three members of the VWCC felt differently, convinced that the evidence from Thomson’s doctor cited by Old Dominion in challenging the award was strong enough to rebut the presumption.

Case Background

Virginia’s workers’ compensation code states in part with respect to state police officers that “hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of any of the following persons who have completed five years of service in their position as . . . 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.”

In February 2022, while arresting an individual who was resisting arrest, Thomson started feeling chest pain and his heart beating fast in a manner he had not previously experienced. While taking the arrestee to booking, his breathing became more labored, his chest pain became more pronounced, and he felt he would pass out. He went to the emergency department. Thomson denied any prior cardiac history or history of SVT. A cardiologist diagnosed him with AVNRT and performed an SVT ablation.

After discharge from the hospital, Thomson continued to follow up with the same cardiologist. At the request of Old Dominion, the cardiologist completed a questionnaire in which he answered yes to the question: “Do you agree that AVNRT is a pre-existing condition that Mr. Thomson was born with, which became symptomatic in February 2022?” He did not elaborate beyond checking the “yes” box.

Deputy’s Reasoning

In this case, there was no dispute that the officer had been diagnosed with AVNRT and that he was entitled to the statutory presumption in the code. The only question was whether the employer Old Dominion overcame the presumption. To overcome the presumption, the employer must show, by a preponderance of the evidence, both that the claimant’s disease was not caused by his employment, and there was a non-work-related cause of the disease, according to the two-pronged test set forth in a 1999 Virginia Supreme Court opinion (Bass v. City of Richmond Police Department).

In ruling on the case, a deputy workers’ compensation commissioner noted that while the doctor opined that Thomson’s AVNRT was a pre-existing condition that was not caused by his employment, the doctor offered no explanation for this conclusory statement. While the opinion is uncontradicted by any medical evidence of record, it was also insufficient to rebut the presumption in this case, the deputy commissioner ruled in awarding benefits to Thomson.

But upon review of that deputy’s opinion, the three-member VWCC said the cardiologist’s opinion was entitled “great weight” since he had been Thomson’s treating cardiologist and because there was no contradictory medical opinion in the record. Given these factors, the VWCC said it was appropriate to afford the cardiologist’s opinion “preponderating weight despite the lack of narrative explanation for his opinions.”

Two Prongs

The VWCC found that the doctor’s questionnaire responses addressed both prongs of the Bass test necessary for the defendant to overcome the presumption. The doctor said Thomson’s AVNRT was not caused by his employment, satisfying the first prong of the Bass test.

As to the second prong, the doctor said that there was a non-work-related cause of the disease—that the claimant was born with the disease.

The VWCC noted that the state Supreme Court has explained that the burden of establishing a non-work-related cause of the disease can be met “upon submission of competent medical evidence that the claimant’s condition was more than likely a hereditary phenomenon,” or “a showing that the claimant’s heart condition was ‘generally thought to be congenital’ or was ‘probably’ congenital.” The commissioners concluded that the opinion that Thomson was born with AVNRT was competent medical evidence of a non-work-related cause of the disease, satisfying the second prong of the Bass test.

The VWCC further noted that while the cardiologist indicated a possibility that the officer’s disease became symptomatic due to his employment, it is “well-established that the employer is not required to exclude the ‘possibility’ that job stress may have been a contributing factor to the disease in order to rebut the presumption.”

The VWCC found that the cardiologist’s opinion was sufficient to rebut the presumption by a preponderance of the evidence. Thus, Thomson had the burden of proving his AVNRT was an occupational disease or a compensable ordinary disease of life under Virginia law. But the VWCC found that the evidence showed that his AVNRT was an ordinary disease of life and not work-related and the doctor’s opinion that his AVNRT “possibly” became symptomatic due to work-related stress was insufficient to meet the burden of proof.

The officer has the right to appeal the VWCC decision to the Court of Appeals of Virginia.

Topics Workers' Compensation Talent Virginia Law Enforcement