ANALYSIS OF FEBRUARY 19, 2008 CAV OPINION

[Posted February 19, 2008] The Court of Appeals announces one published opinion today, in the Workers’ Compensation case of Town of Waverly Law Enforcement etc. v. Owens . This decision implicates the statutory presumption in favor of police officers (and other public safety employees), creating a rebuttable presumption that any heart disease contracted during the officer’s employment was occupational in nature and therefore compensable. Owens is nothing less that the town’s police chief, and he contracted heart disease during the time that he worked for Waverly in that capacity.

The rub here is that the parties agreed that Owens never had a pre-employment physical examination. He contended that that didn’t matter; if the employer wanted to contest the causation of his disease, it had the obligation to perform the physical on him. Today, the court of appeals agrees, thereby affirming the Commission, and affirms the award of benefits. In doing so, the court turns to the current statute, § 65.2-402 , and notes that it provides that the presumption applies only if the officer has, if requested by the [employer], undergone preemployment physical examinations.”

And basically, that’s it; the employer never asked for an exam, so it can’t rebut the presumption. The town argued that the lack of a preemployment physical means that the presumption doesn’t apply, but the court would have none of that. As it points out today, such an interpretation would eviscerate the statute (always an unpleasant fate) and encourage employers not to offer physicals, in order to avoid ever facing the presumption. That isn’t consistent with the remedial purpose of the presumption statute.