City of Newport News v. Kahikina

71 Va.App. 536

838 S.E.2d 70

CITY OF NEWPORT NEWS

v.Joey K. KAHIKINA

Record No. 1372-19-1

Court of Appeals of Virginia, Norfolk.

FEBRUARY 25, 2020

Adonica Baine, Senior Assistant City Attorney (City of Newport News, on briefs), for appellant.

Michael A. Kernbach (Michael A. Kernbach, P.C., on brief), Fairfax, for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WILLIAM G. PETTY

The City of Newport News (City) argues on appeal that the Workers’ Compensation Commission erred in awarding a police officer benefits for heart disease under the presumption found in Code § 65.2-402(B). We disagree and affirm the Commission’s decision.

I. BACKGROUND

Under our standard of review, when we consider an appeal from the Commission’s decision, we must view the evidence in the light most favorable to the party who prevailed before the Commission. K & K Repairs & Const., Inc. v. Endicott, 47 Va. App. 1, 6, 622 S.E.2d 227 (2005). Here, the prevailing party was claimant Joey K. Kahikina.

The record shows that Kahikina, a police officer with the City of Newport News, began having heart problems in 2004. In October 2011, after experiencing irregular heartbeats at work, Kahikina saw cardiologist Dr. Gillen, who diagnosed Kahikina with cardiomyopathy.¹ Dr. Gillen attributed Kahikina’s irregular heartbeats to his consumption of a Red Bull, a highly caffeinated beverage, the previous day. Kahikina was kept on "sedentary work only" until a follow-up appointment in January 2012, when Dr. Gillen noted that Kahikina had "no evidence of ischemic heart disease with risk factors which included diabetes, hypertension, and dyslipidemia."²

In 2015, Kahikina experienced chest pain and was hospitalized from August 26–28. Dr. Chou, a cardiologist, performed a stress echocardiogram and diagnosed Kahikina with "unstable angina with large area of ischemia," "resting LV dysfunction of unclear significance," "hypertension," "diabetes," and "dyslipidemia." He also performed a cardiac catheterization and implanted a stent. At a follow-up appointment in September 2015, Dr. Chou concluded, "Strictly speaking, I do not have any obvious reason why he cannot return back to work, at least based on the stress test result."

On June 24, 2017, Kahikina went to the emergency room because of chest pain that he experienced after responding to a custody dispute. Dr. Chou performed another cardiac catheterization but did not implant a stent because there was "no new obstructive disease." In his findings on June 26, 2017, Dr. Chou stated,

I would consider potentially transitioning to a less stressful job responsibility at the police department. There [are] concerns that stress may be contributing to some of his symptoms and may improve with a less stressful situation. I will rediscuss [sic] this with him when I see him back in follow[-]up in about a month.

Kahikina was kept out of work until his follow-up visit in July 2017. At that time, Dr. Chou listed two circulatory problems: "coronary arteriosclerosis in native artery" and "cardiomyopathy," and he ordered "light duty due to [Kahikina’s] ongoing cardiomyopathy and intermittent chest discomfort." He noted on July 12, 2017,

[Kahikina] is under significant amount[s] of stress per his own report. I explained to him that I do not think this helps his chronic cardiac issues. ... I did ask him to consider whether [or] not he was willing to go to a less stressful position at work to see what impact this could have on his symptoms. He was open to that idea.

Based on the June 2017 injury, Kahikina filed a pro se claim for benefits with the Workers’ Compensation Commission on August 8, 2017. He listed "heart/cardiomyopathy" as his injured body part and "cardiomyopathy" as his occupational disease. He listed June 24, 2017, as both the date of injury and the "date doctor told you disease was caused by work." By counsel, Kahikina filed another claim for benefits on February 20, 2018, alleging "heart disease" as his injured body part and "heart disease —2 vessel occlusion" as his occupational disease.

At the hearing before Deputy Commissioner Wilder, evidence showed that Kahikina signed acknowledgements of receipt of Code § 65.2-402 in 2009 and 2010. Kahikina testified that the first time he discussed "work-related stress" with Dr. Chou was after the June 2017 injury.

Deputy Commissioner Wilder found in favor of Kahikina and entered an award for temporary wage benefits and lifetime medical benefits. The Commission affirmed, determining that Kahikina’s 2015 diagnosis of coronary artery disease triggered the two-year statute of limitations for claims brought under Code § 65.2-402(B). The Commission found that Kahikina’s 2017 claim was "sufficient enough to put the parties on notice of a claim for heart disease" and was therefore timely. It found that Kahikina knew of the presumption as early as 2009, that Kahikina was entitled to invoke the presumption, and that the City failed to rebut the presumption. Finally, the Commission found that Kahikina "proved disability related to his heart disease."

On appeal to this Court, the City advances two assignments of error. First, "[t]he Commission erred in finding that this occupational disease claim is not barred by the two-year statute of limitations found in Virginia Code § 65.2-406(A)(6)." Second, "[t]he Commission erred in finding that the Claimant was entitled to invoke the presumption of Virginia Code § 65.2-402(B)." For the following reasons, we affirm the decision of the Commission.

II. ANALYSIS

Code § 65.2-402(B) provides, in pertinent part,

Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of ... (iii) members of county, city, or town police departments ... shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such a presumption is overcome by a preponderance of competent evidence to the contrary.

Furthermore, the statute of limitations applicable to this claim provides that a claim must be brought within "two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs." Code § 65.2-406(A)(6).

A. The Statute of Limitations

The question of whether a claim is barred by the statute of limitations is a question of law, which this Court reviews de novo . Philip Morris USA, Inc. v. Mease, 62 Va. App. 190, 198, 745 S.E.2d 155 (2013). But "[w]hether the information filed with the [C]ommission is sufficient to constitute a timely filed claim for a particular injury is a question of fact [that] ... will not be disturbed on appeal if supported by credible evidence." Corporate Res. Mgmt. v. Southers, 51 Va. App. 118, 127, 655 S.E.2d 34 (2008) (en banc ).

The applicable statute of limitations required Kahikina to file within two years from the date that he received a diagnosis of an occupational disease. Code § 65.2-406(A)(6). The City contends that since Kahikina received a copy of the heart-lung presumption in 2009 and 2010, it was incumbent upon him to file for heart disease within two years of his 2011 diagnosis because at that point he knew that he had heart disease and knew about the statute. But this argument misses one critical component of the equation—whether Kahikina knew that his disease was caused by his employment.

This knowledge requirement has been previously addressed by both the Supreme Court and this Court. In Garrison v. Prince William Cty. Bd. of Supervisors, 220 Va. 913, 916, 265 S.E.2d 687 (1980), the claimant was diagnosed with hypertension in 1975. In 1977 he discovered his disease was work-related. Id. The Supreme Court reiterated that the statute of limitations does not begin to run until a claimant "receives a diagnosis that he suffers from an ‘occupational disease’: one ‘arising out of and in the course of the employment.’ " Id. at 917, 265 S.E.2d 687 (citation omitted). Therefore, the Court held that the claimant’s August 1978 claim for benefits was not time-barred because "[w]hile the claimant was informed in 1975 that he suffered from hypertension, he did not at that time receive a diagnosis that his hypertension arose out of and in the course of employment." Id.

This Court has also recognized that a claimant need not file for benefits until he understands that there is a causal connection between his disease and his work. Via v. Citicorp Mort., 10 Va. App. 572, 577, 394 S.E.2d 505 (1990) (holding the diagnosis of an occupational disease "should be sufficiently clear and understandable to inform the claimant of the nature of his or her condition so that he or she can accurately file a claim to the [Workers’ Compensation] Commission"). In Via, this Court discussed Hawks v. Henrico Cty. Sch. Bd., 7 Va. App. 398, 374 S.E.2d 695 (1988), where the statute of limitations began to run upon "a communication to the claimant that he had ‘scarring in the lungs’ from exposure to metals on his welding job." Id. (quoting Hawks, 7 Va. App. at 402-03, 374 S.E.2d 695 ). We noted that if a doctor had incorrectly attributed the claimant’s symptoms to allergies, then "[o]bviously, the communication of such a diagnosis would not trigger the limitation period for a claim based on the lung disease." Id.

Here, Kahikina found out years after his initial diagnosis that the condition was causally related to his employment as a police officer. The medical records and testimony indicate that Kahikina discovered for the first time on June 24, 2017, that his heart disease was causally related to his employment.³

In fact, prior to that date Kahikina’s doctors attributed his heart disease to his lifestyle choices and other illnesses. According to the record, Dr. Chou’s conversation with Kahikina on June 24, 2017, was the first time that Kahikina was informed that work-related stress could be causing his heart disease....