# FILED

March 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ALEXANDER JAC KSON BULLARD, ) C/A N0. 03A01-9705-CH-00193 ) Plaintiff- Appellee, ) HAMILTON CHANCERY ) v. ) HON. HOWELL N. PEOPLES, ) CHANCELL OR THE CITY OF

CHATTANOOGA ) FIREMEN’S AND POLICEM EN’S ) INSURANCE AND PENSIO N 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 Pl aintiff-Appell ee. ARV IN H. R EING OLD , P.C., Chatta nooga, fo r Defen dant-Ap pellant.

O P I N I

O 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 over turned the decision of the Board and awarded benefi ts. For reasons hereinaf

ter stat ed we affirm and adopt from the Chancel lor’s Opinion: The Petitioner, Mr. Bullard, s uffered a heart at

tack 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 doct

or, Michael Geer, M.D.,requested that Mr. Bullard not2 take the test

due to his conti

nuing heart probl

ems. On May 10, 1995, the Fire Marshall pl aced Mr. Bullard on persona l leave until such time that Dr. Geer released Mr. Bull ard to perform the t

est. Mr. Bullar

d, having con tinu ing h eart p robl ems , app lied f or jo b-re lated disa bility. 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 r

eview of decisions by

civil ser vice boards of a county or municipa lity which affe cts the emp loyment status o f a county or c ity civil ser vice employee sha

ll be in conformi

ty with t he judicial

review standards under § 4- 5-322 of the Uniform Administr ative 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 affir m the decision of t

he agency or remand the case for furt

her proceedings. The court may reverse or modify the deci sion if the ri ghts of the peti

tioner have been prejudiced because the administrative findings, inferences, conclusions or deci sions are: (1) In violation of constitutional or statutory provisions; (2) In excess of t

he statutor

y authorit

y of the agen cy; (3) Made upon unlawful procedure; (4) Arbitrar

y or capricious or charact erized 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 t

he substantia

lity of the evidence . .. the court shall

not substit

ute its j udgment for that of t he agency as to t

he weight of the evidence on questions of fact. Following this statutory scheme, this Court

will not review any evidence outside t

he record and will ana

lyze the r ecord in accordance with §4-5-322(h)(1 -5). Mr. Bullard has appli

ed for job-related benefits unde r § 13.76 of the Chattanooga Code. Sect ion 13.76 allows a fi

reman to receive a certain rat

e of disabili

ty pension i

f that fireman can s

how that he or she3 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 fir

e fighter caused by hypertensi

on or heart disease resulti ng in hospital

ization, medi

cal 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 opi

nion that thi s presumption appli es to the Peti

tioner because h e was em ployed by a regu lar fire depa rtment ma nned by fulltime employees ; his medical c ondition combined wit h the physica

l ability test requi

rements render hi

m disabled, and his

physical examination before comi ng to the fire depa

rtment showed no evidence of hypertensi

on or heart disease. See Perry v. City of K noxville , 826 S.W.2d 114 (T enn. 1991). The Petitioner

argues that t

he Board’s decision i s not supported by sufficient and competent medical evidence. Given the pr esumption in § 7 -51- 201(

b)( 1) and thi s Cour

t’ssta ndar d of r evie w foun d 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 evi dence that is bot

h substantial

and material. The C ourt mu st first fin d the ca use of Mr. B ullard’s disability. Both doctors examining Mr. Bul lard agree that

he cannot perform the physical ability test because it would place him at sign ificant risk for a heart attac

k. However, is the r

isk of this hear

t attack caused by hypertensi

on and problems result

ing from his first heart att ack, or caused by cor

onary arter y dis ease, or is i

t some mi

xture of the t wo? This question i s important becaus e Dr. Geer, Bullard’ s treati ng physician, has o pined that th e heart attack could hav e been ca used by his job, but that

he does not believe t

he coronary ar

tery probl

ems 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 t

hese problems is t

he 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 attac

k and the heart problems t

hat 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 hea

rt ventricle. Dr. Geer al so states t hat Bullard has ongoing coronary a

rtery di sease and chest pai ns that may be caus ed by spasms. However, Dr. Geer al so found that alt hough 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 art

ery diseas e 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.”4 Dr. Thomas Mullady was not Bulla rd’s physi

cian but has analyzed B ullard’s con dition and m edical record s. Dr. Mu llady initially stated that

he did not belie

ve Mr. Bullard’s hear

t 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 y

ou to presume for purposes of my question t

hat Mr. Bullard’s hear

t attack and/

or heart disease was due to injuri es suffered in the cours e of his em ployment. Now, sta rting with tha t presump tion, after revie wing his medical records and ha

ving given him a physical examinati on, you do not have competent medical evidence upon which y ou could rely

to state t o a reasonable degree

of medical certai

nty that Mr. Bullard’s hear

t 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 pre sume. A. Presume that his e

mployment 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 t hat 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 revea

l their uncer

tainty as to the cause of Mr. Bullard’s

heart problems. Furthermore, bot h doctors agree that if ther

e is a presumption that Bullard’ s heart problems were c aused by his work that

they find no evi

dence showing any other cause. Once the employee has established t he three factors necessary for the statutory presu mption tha t the heart attack resulted from his employment as a fi

re fighter,“(t)here must be affirmative evi

dence that there is not

a substantia

l causal connect

ion between the work of the employee so si

tuated and the occur

rence upon which the clai m 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 recor

d reveals vary

ing heart att

ack problems and an uncertai nty as to t

he cause of those probl

ems. Given the presumption under

T.C.A. § 7-51-201 that Mr. Bullard’s hear

t attack and hypertensi

on was caused by his work and t he uncertainty

of the medical proof negati

ng 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 cases5

applying t

he statutor

y presumption a

nd as controll

ing authorit

y to revers e 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 condi

tion, and the Court

said “this t

estimony i s affirmative e vidence 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 a ll three doct

ors who testifi

ed “agreed that t

o a reasonable medical

certainty

under the facts of t

he claimant’s c ase, job stress was not

a factor” in claimant’s heart disease and att

ack.
We a gree with the C han cello r’s ev alua tion of th e do ctor s’ tes timo ny, and hold that the

statutory

presumption was not overc ome “by competent medical eviden ce”. We affirm the Trial Court ’s reversal of the Board’s acti

on on the ground that its finding is not

supported by substantial a nd material evidence. The cost of the appeal is asses sed to the appellant and the cause i s remanded.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William H. Inman, Sr.J.