FILED

March 3, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ALEXANDER JACKSON BULLARD, ) C/A N0. 03A01-9705-CH-00193

)

Plaintiff-Appellee, ) HAMILTON CHANCERY

)

v. ) HON. HOWELL N. PEOPLES,

) CHANCELLOR

THE CITY OF CHATTANOOGA )

FIREMEN’S AND POLICEMEN’S )

INSURANCE AND PENSION FUND )

BOARD, ) AFFIRMED

) AND

Defendant-Appellant. ) REMANDED

WILLIAM R. DEARING, CHAMBLISS, BAHNER & STOPHEL, P.C.,

Chattanooga, for Plaintiff-Appellee.

ARVIN H. REINGOLD, P.C., Chattanooga, for Defendant-Appellant.

O P I N I O N

Franks, J.

In this action plaintiff sought job-related disability benefits from his

pension plan, administered by the City of Chattanooga Firemen’s and Policemen’s

Insurance and Pension Fund Board (“Board”). The Board, after an evidentiary

hearing, voted 3 to 2 to deny benefits. An appeal was taken to the 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 while on call as a fire inspector for the Chattanooga Fire

Department. Mr. Bullard was unable to return to his job duties as a fire

inspector until April of 1994. From April 1994 until May 1995, Mr.

Bullard continued his job as a fire inspector.

In May 1995, Mr. Bullard was informed that he would have to

take the Chattanooga Fire Department’s physical ability test. Mr.

Bullard’s doctor, Michael Geer, M.D., requested that Mr. Bullard not
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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 heart problems, applied for job-related disability.

On November 9, 1995, the Respondent Board denied Mr. Bullard

job-related disability. Mr. Bulla rd petitioned this Court asking it to

reverse the Board’s decision.

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

Judicial review of decisions by civil service boards of a county or

municipa lity which affe cts the employment status of 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 language has been applied to review of the denial of pensions to

civil servants. Kendrick v. City of Chattanooga Firemen’s &

Policemen’s Ins. And Pension Bd., 799 S.W.2d 668, (Tenn. App. 1990). 

Tenn. Code Ann. §4-5-322(g)-(h) states:

(g) The review shall be conducted by the court without a jury

and shall be confined to the record . . .

(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

agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise

of discretion; or

(5) Unsupported by evidence which is both

substantial and material in the light of the entire

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
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was injured while performing his or her duties.

Tennessee Code Annotated § 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 (unless the contrary

be shown by compe tent medica l evidence) to have oc curred or to

be due to a ccident injury suffered in the course of employment.

The court is of the opinion that this presumption applies to the Petitioner

because he was employed by a regular fire department manned by fulltime 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 Knoxville, 826

S.W.2d 114 (Tenn. 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 whether or not the Boa rd’s

decision that Mr. Bullard’s heart condition was not caused by his work

is supported by competent medical evidence that is both substantial and

material.

The Court must first find the cause of Mr. Bullard’s disability. 

Both doctors examining Mr. Bullard agree that he cannot perform the

physical ability test because it would place him at significant 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 opined that the heart attack could have been caused by his

job, but that he does not believe the coronary artery problems were. The

Court is of the opinion that the medical proof on Bullard is too uncertain

to clearly ascertain whether one or the other of these problems is the

reason Mr. Bullard cannot take the test. Both Doctors in this case are

somewhat unsure of the medical cause of Bullard’s heart attack and the

heart problems that have followed.

Dr. Michael Geer, states that Bullard as a “very unusua l coronary

status.” Dr. Geer is fairly certain that Bullard had a significant heart

attack and that the damage from this attack caused an abnormally

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 completely normal. Although Dr.

Geer has stated that he does not believe Bullard’s artery disease was

caused by his work, he has stated tha t he has no “medical evidence to

state that Mr. Bullard’s heart disease is not due to an accidental injury

suffered during the course of employment.”
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Dr. Thomas Mullady was not Bullard’s physician but has

analyzed Bullard’s condition and medical records. Dr. Mullady initially

stated that he did not believe Mr. Bullard’s heart attack was caused by

his job, but opined that “ce rtain risk factors in his history would

contribute to his having a heart attack at any time.” However, 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 course of his employment.

Now, sta rting with tha t presumption, after reviewing 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 related; is that correct?

A. Well, let me answer 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 of his heart attack and/or underlying heart disease, then I

find no evidence - - I have no other evidence that I found from

either review of his records or from my examination that there

was any other cause. (Emphasis added).

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 presumption 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. City of Knoxville, 826 S.W.2d 516 (Tenn.

1993). The respondent has failed to produce such affirmative evidence.

The Petitioner has argued that the record does not contain

“competent medical proof” to support the Board’s decision. The 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 disability occurred during the course of his employment.

The Board cites Stone v. City of McMinnville, 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

judgment of the Trial Court. The f acts of these two cases distinguish them from this

case. In Krick, a qualified c ardiologist had testified that job stress played no role in

Krick’s heart condition, and the Court said “this testimony is affirmative evidence that

there is not a substantial causal connection between Krick’s work and his 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 agree with the Chancellor’s evaluation of the doctors’ testimony,

and hold that the statutory presumption was not overcome “by competent medical

evidence”. 

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. Goddard, P.J.

___________________________

William H. Inman, Sr.J.