Virginia Court Upholds Denial of Benefits to Firefighter’s Widow

The widow of a Norfolk Fire Department captain who died in 2019, has lost her appeal to the Virginia Court of Appeals to have his death treated as a compensable occupational disease pursuant to the state’s cancer presumption law. Norma Hughes appealed the ruling of the Virginia Workers’ Compensation Commission concluding that the medical evidence did not establish that Captain David Hughes died of lung cancer.

The Commission considered the evidence presented, but found it lacking a definitive statement that Captain Hughes’ death was due to cancer. In particular, the Commission concluded that documentation submitted by Captain Hughes’ treating oncologist did not state definitively that he had lung cancer, or that he died of lung cancer.

Mrs. Hughes appealed arguing the evidence submitted was sufficient to establish Captain Hughes died of lung cancer, and under the presumption in Virginia Code § 65.2-402 he was entitled to death benefits.

The Court of Appeals rejected her argue, ruling as follows (quotation marks and citations removed to facilitate reading):

• A claimant has the burden of proving by a preponderance of the evidence that his disease is occupationally related – that it arose out of and in the course of his employment.
• Nevertheless, Code § 65.2-402(A) provides a presumption in some circumstances that there is a causal connection between respiratory disease and firefighters. Specifically, respiratory diseases that cause (i) the death of volunteer or salaried firefighters… shall be presumed to be occupational diseases, suffered in the line of duty… unless such presumption is overcome by a preponderance of competent evidence to the contrary.
• Thus, in order to establish the relevant prima facie case necessary to secure the benefit of the presumption in Code § 65.2-402(A), a claimant must prove his occupation as a firefighter and his death from a respiratory disease.
• A claimant under the Workers’ Compensation Act should not be required to establish [her claim beyond all reasonable doubt.
• But she must prove her case by preponderance of the evidence.
• That David was a firefighter is uncontested. Rather, the only question before us is whether he suffered from lung cancer, triggering the statute’s rebuttable presumption.
• Whether a claimant has suffered from a specific ailment triggering Code § 65.2-402’s presumption is a question of fact.
• Consequently, we must give deference to the Commission’s conclusion on that factual question.
• The Commission found that the evidence was insufficient to prove lung cancer caused David’s death, noting that Dr. Sissoko opined that David had adenocarcinoma of unknown origin with possible origin being from GI tract or lung.
• Dr. Sissoko further explained David had multiple lung masses that could be metastatic disease alone or a combination of metastatic disease and primary lung cancer and that David died of respiratory failure which could be from consequences of metastatic disease, possible lung cancer primary or both.
• It is well established that a medical opinion based on a possibility is irrelevant and purely speculative.
• Thus, credible evidence supports the Commission’s factual conclusion that Hughes failed to demonstrate that David suffered from lung cancer.
• Hughes asks us not merely to presume that the ailment in David’s lungs was occupationally related, as required under the Act, but also to infer from that presumption that he died of that ailment. We find this unpersuasive.
• An inference cannot be drawn from a presumption, and a verdict resting upon such foundation is not the fruit of evidence, but of conjecture, and cannot be upheld.

Here is a copy of the decision: