Alexander Jackson Bullard v. The City of Chattanooga Fireman's & Policeman's Insurance & Pension Fund Board - Concurring

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED March 3, 1998 ALEXANDER JACKSON BULLARD, ) C/A N0. 03A01-9705-CH-00193 ) Cecil Crowson, Jr. Plaintiff-Appellee, ) HAMILTON CHANCERY Appellate C ourt Clerk ) v. ) HON. HOWELL N. PEOPLES, ) CHANCELLOR THE CITY OF CHATTANOOGA ) FIREMEN’S AND POLICEM EN’S ) INSURANCE AND PENSION FUND ) BOARD, ) AFFIRMED ) AND Defend ant-App ellant. ) REMANDED

WILL IAM R. DE ARIN G, CH AM BLIS S, BA HNE R & S TOP HEL , P.C., Chattanooga, for Plaintiff-Appellee.

ARV IN H. R EING OLD , P.C., Chatta nooga, fo r Defen dant-Ap pellant.

O P I N IO N

Franks, J.

In this action p laintiff soug ht job-related disability benefits f rom his pension plan, adm inistered by the City of Chattanooga F iremen’s and Policem en’s Insurance and Pe nsion Fund B oard (“Board”). T he Board, after an ev identiary hearing, vo ted 3 to 2 to d eny benefits. A n appeal w as taken to th e Chanc ery Court, and the Chancellor overturned the decision of the Board and awarded benefits. For reasons hereinafter stated we affirm and adopt from the Chancellor’s Opinion:

The Petitioner, Mr. Bullard, suffered a heart attack in November of 1993 w hile on call as a fire inspector for the C hattanooga Fire Department. M r. Bullard was unab le to return to his job duties as a fire inspector until April of 199 4. From April 199 4 until May 1995, M r. Bullard continued h is job as a fire inspector.

In May 19 95, Mr. B ullard was informed that he wo uld have to take the Chattanoog a Fire Departmen t’s physical ability test. Mr. Bullard’s doctor, Michael Geer, M.D., requested that Mr. Bullard not

take the test due to his continuing heart problems. On May 10, 1995, the Fire Marshall placed Mr. Bullard on personal leave until such time that Dr. Geer released Mr. Bullard to perform the test. Mr. Bullard, having continuing h eart p roblems, app lied f or job-re lated disability.

On Nov ember 9, 1995, the R espondent Bo ard denied M r. Bullard job-related d isability. Mr. Bulla rd petitioned this Court as king it to reverse the Board’s decision.

Tennessee Code Anno tated §27-9-114(b)(1) states:

Judicial review of decisions by civil service boards of a county or municipa lity which affe cts the emp loyment status o f a county or c ity civil service employee shall be in conformity with the judicial review standards under § 4-5-322 of the Uniform Administrative Procedures Act.

This langu age has b een applied to review o f the denia l of pension s to civil serv ants. Kendrick v. City of Chattanooga Firemen’s & Policemen’s Ins. And Pension Bd., 799 S .W.2d 668, (T enn. A pp. 199 0). Tenn. Code Ann. §4-5-322(g)-(h) states:

(g) The review sh all be conducted by the cou rt without a jury and sh all be co nfined to the rec ord . . . (h) The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agen cy; (3) Made upon unlawful procedure; (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) Unsu pported b y evidence w hich is both substantial and material in the light of the e ntire record. In determining the substantiality of the evidence . . . the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.

Following this statutory scheme, this Court will not review any evidence outside the record and will analyze the record in accordance with §4-5-322(h)(1 -5).

Mr. Bullard has applied for job-related benefits under § 13.76 of the Chattanooga Code. Section 13.76 allows a fireman to receive a certain rate of disability pension if that fireman can show that he or she

was injured while performing his or her duties.

Tennessee Code Anno tated § 7-51-201(b)(1) states:

(A)ny impairment of health of a fire fighter caused by hypertension or heart disease resulting in hospitalization, medical treatment or any disability shall be presumed (un less the contrary be show n by compe tent medica l evidence) to have oc curred or to be due to a ccident injury su ffered in th e course o f employm ent.

The court is of the opinion that this presumption applies to the Petitioner because h e was em ployed by a regu lar fire depa rtment ma nned by full- time employees; his medical condition combined with the physical ability test requirements render him disabled, and his physical examination before coming to the fire department showed no evidence of hypertension or heart disease. See Perry v. City of K noxville, 826 S.W.2d 114 (T enn. 1991).

The Petitioner argues that the Board’s decision is not supported by sufficient and competent medical evidence. Given the presumption in § 7-51-201(b)(1) and this Court’s standard of review found at T.C.A. § 4-5-322(h)(5), the que stion becomes w hether or not the Boa rd’s decision that Mr. Bu llard’s heart condition was no t caused by his work is supported by competent medical evidence that is both substantial and material.

The C ourt mu st first fin d the ca use of Mr. B ullard’s disability. Both doctors examining Mr. Bullard agree that he cannot perform the physical ability test because it would place him at sign ificant risk for a heart attack. However, is the risk of this heart attack caused by hypertension and problems resulting from his first heart attack, or caused by coronary artery disease, or is it some mixture of the two? This question is important because Dr. Geer, Bullard’s treating physician, has o pined that th e heart attack could hav e been ca used by his job, but that he does not believe the coronary artery problems were. The Court is of the opinion that the med ical proof o n Bullard is to o uncertain to clearly ascertain whether one or the other of these problems is the reason Mr. Bu llard cannot take the test. Both D octors in this case are somewhat unsure of the medical cause of Bullard’s heart attack and the heart problems that have followed.

Dr. Michael G eer, states that Bullard as a “very unusua l coronary status.” Dr. Geer is fairly certain that Bullard had a significant heart attack and th at the dam age from this attack cau sed an ab normally contracting heart ventricle. Dr. Geer also states that Bullard has ongoing coronary artery disease and chest pains that may be caused by spasms. However, Dr. Geer also found that although Bullard had a heart attack, his coronary arteries are comp letely normal. Although D r. Geer has stated that he d oes not believe Bullard’s artery disease was caused b y his work, he has stated tha t he has no “medical e vidence to state that Mr. Bullard’s heart disease is not due to an acciden tal injury suffer ed duri ng the c ourse o f emp loyment.”

Dr. Thomas Mullady was not Bullard’s physician but has analyzed B ullard’s con dition and m edical record s. Dr. Mu llady initially stated that he did not believe Mr. Bullard’s heart attack was caused by his job, but op ined that “ce rtain risk facto rs in his history w ould contribute to his having a h eart attack at any time.” Howe ver, Dr. Mullady’s deposition states:

Q. . . .I want you to presume for purposes of my question that Mr. Bullard’s heart attack and/or heart disease was due to injuries suffered in the cours e of his em ployment. Now, sta rting with tha t presump tion, after revie wing his medical records and having given him a physical examination, you do not have competent medical evidence upon which you could rely to state to a reasonable degree of medical certainty that Mr. Bullard’s heart attack and/or heart disease was in fact, not work rela ted; is that corre ct?

A. Well, let me answ er it this way: if I’m going to assume - -

Q. I want you to presume.

A. Presume that his employment in the fire department was the cause o f his he art attack and/or underl ying hea rt diseas e, then I find no evidence - - I have no other evidence that I found from either review of his record s or from my exam ination that there was any other cause. (Emphasis add ed).

The statements by both doctors reveal their uncertainty as to the cause of Mr. Bullard’s heart problems. Furthermore, both doctors agree that if there is a presumption that Bullard’s heart problems were caused by his work that they find no evidence showing any other cause.

Once the employee has established the three factors necessary for the statutory presu mption tha t the heart attack resulted from his employment as a fire fighter, “(t)here must be affirmative evidence that there is not a substantial causal connection between the work of the employee so situated and the occurrence upon which the claim for benefits is based.” Coffey v. C ity of Knox ville, 826 S.W.2d 516 (Tenn. 1993). The respondent has failed to produce such affirmative evidence.

The Petition er has argu ed that the rec ord does n ot contain “competent me dical proof” to suppo rt the Board’s decision. Th e Court agrees. The medical proof in the record reveals varying heart attack problems and an uncertainty as to the cause of those problems. Given the presumption under T.C.A. § 7-51-201 that Mr. Bullard’s heart attack and hypertension was caused by his work and the uncertainty of the medical proof negating that presumption, the Court is of the opinion that Bullard’s d isability occurred during the c ourse of h is employme nt.

The Board cites Stone v. C ity of McM innville, 896 S.W.2d 548 (Tenn. 1995) and Krick v. City of Lawrenceburg, 945 S.W.2d 709 (Tenn. 1997), as cases *5 applying the statutory presumption and as controlling authority to reverse the judgmen t of the Trial C ourt. The f acts of these two case s distinguish th em from this case. In Krick, a qualified c ardiologist ha d testified that jo b stress played n o role in Krick’s heart condition, and the Court said “this testimony is affirmative evidence that there is not a substantial causal conn ection between K rick’s work and h is heart disease ”. Id. at 713. In Stone the Court found that all three doctors who testified “agreed that to a reasonable medical certainty under the facts of the claimant’s case, job stress was not a factor” in claimant’s heart disease and attack.

We a gree with the C hancello r’s ev alua tion of th e doctors’ tes timo ny, and hold that the statutory presumption was not overcome “by competent medical eviden ce”.

We affirm the Trial Court’s reversal of the Board’s action on the ground that its finding is not supported by substantial and material evidence. The cost of the appeal is assessed to the appellant and the cause is remanded.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William H. Inman, Sr.J.