                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               December 13, 2012 Session

                GWENDOLYN JEFFREY v. CITY OF MEMPHIS

              Direct Appeal from the Chancery Court for Shelby County
                 No. CH-09-0760-2     Arnold B. Goldin, Chancellor


               No. W2012-00274-COA-R3-CV - Filed February 5, 2013


Decedent’s spouse brought an action to recover HHL benefits for the death of her firefighter
husband. The City of Memphis denied her claim and decedent’s spouse appealed to an ALJ.
The ALJ, likewise, denied the claim for benefits finding that the City of Memphis had
rebutted the statutory presumption of causation and that decedent’s spouse had then failed
to prove, by a preponderance of the evidence, that decedent’s cardiac condition was caused
by his employment. The chancery court affirmed the decision of the ALJ, and we affirm the
decision of the chancery court.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Gwendolyn Jeffrey

John H. Dotson, Casey Shannon, Memphis, Tennessee, for the appellee, City of Memphis
                                                  OPINION

                                  I.   F ACTS & P ROCEDURAL H ISTORY

       Wendell Jeffrey (“Decedent”) was hired as a firefighter by the Memphis Fire
Department in February 1986 at age twenty-seven. In 2003, Decedent’s physician, Laurie
Baker, M.D., referred Decedent to cardiologist David Stewart, M.D. Dr. Stewart diagnosed
Decedent with cardiomyopathy, noting that his left ventricle showed “several generalized
hyperkinesis” with an ejection fraction of twenty-two percent.1

        On October 24, 2005, while sitting on the fire station couch, Decedent, then forty-
seven years old, suffered from “seizure-like convulsions . . . . [and he] eventually went into
full arrest.” Decedent did not survive. An autopsy listed his cause of death as “cardiac
arrhythmia due to hypertensive cardiovascular disease.”

       Decedent’s widow, Gwendolyn Jeffrey filed a claim for death benefits 2 pursuant to
the City of Memphis’ “Heart, Hypertension, and Lung Program” (“HHL”).3 Under the HHL
Program, as set forth in the City’s “Policy and Administrative Procedures,” firefighters who
are “diagnosed with diseases of the heart, lungs, and hypertension are presumed (unless the
contrary is shown by competent medical evidence) to have contracted such diseases or
conditions in the course of their employment by the City of Memphis government.”
(emphasis added).

        Following Mrs. Jeffrey’s claim for HHL benefits, Decedent’s medical records were
presented to three physicians: Jack Hopkins, M.D., J.T. Davis, Jr., M.D., and G. Jose Guerra,
M.D. In a letter dated January 5, 2006, Dr. Davis opined that Decedent’s “[c]ardiac disease
was related to + risk factors and not related to employment factors.” (emphasis added). Dr.
Davis noted a family history of hypertension, diabetes mellitus and stroke as well as
Decedent’s diagnoses of cardiomyopathy, hypertension, sleep apnea, and congestive heart
failure.




        1
        According to Dr. Jose Guerra, who testified by deposition in this case, an ejection fraction
“[m]easures the ability of the heart to pump.” He stated that Decedent’s heart had “a very poor capacity to
pump. Twenty-two percent is very low.”
        2
            Mrs. Jeffrey’s claim is not included in the record.
        3
       “The City has opted out of the Workers’ Compensation Law and has established its own
compensation procedures.” Pittman, 360 S.W.3d at 387 n.2 (citing Tidwell, 193 S.W.3d at 557).

                                                       -2-
        Dr. Guerra, in a January 16, 2006 letter, similarly opined that

        After reviewing his records it appears to me that Mr. Jeffrey had congestive
        cardiomyopathy, etiology of which is undetermined, but not related to his
        employment. His death likely resulted from rhythm problem[s] related to his
        congestive cardiomyopathy.

       In his December 21, 2005 letter, the third physician, Dr. Hopkins stated that “[t]he
exact underlying etiology of dilated cardiomyopathy remains unknown in this and all such
patients.” However, he went on to state that “[w]hile [Decedent’s] occupation was not likely
the entire underlying etiology, it is very reasonable to believe that the physical and mental
stresses of his occupation as a firefighter did help advance and complicate the course of his
severe cardiac disease to which he succumbed in October, 2005.”

       Apparently based upon these medical opinions, the City denied Mrs. Jeffrey’s claim
for HHL benefits. Mrs. Jeffrey then appealed the denial to an administrative law judge.4
Discovery ensued, and the depositions of Drs. Davis and Guerra were taken. Consistent with
their prior letters, Drs. Davis and Guerra opined that the etiology of Decedent’s cardiac
problems was unrelated to his employment.

        Following an administrative hearing, the ALJ entered his “Order on Findings of Fact
and Conclusions of Law” on March 16, 2009, in which he affirmed the City’s denial of Mrs.
Jeffrey’s claim for HHL benefits. The ALJ noted that the parties had stipulated that Mrs.
Jeffrey was entitled to the statutory presumption set forth in Tennessee Code Annotated
section 7-51-201 that Mr. Jeffrey’s cardiac condition was caused by his employment.
However, the ALJ found that the presumption had been rebutted by competent medical proof,
and that Mrs. Jeffrey had “failed to provide competent medical testimony capable of proving
that Decedent’s cardiac condition arose out of and in the course and scope of his employment
as a firefighter for the City of Memphis.”5 Thus, the ALJ concluded that there existed “no
substantial causal connection between Decedent’s cardiac condition and his employment.”

        On April 9, 2009, Mrs. Jeffrey filed a Petition for Writ of Certiorari in the Shelby


        4
           The City’s Policy and Administrative Procedures provides that “[a]ny request for reconsideration
of an . . . HHL claim for benefits shall be made in writing to the Appeals Coordinator within twenty (20)
calendar days of the employee’s receipt of written notice of denial regarding the matter being appealed.”
        5
         “To rebut the presumption of causation, ‘[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.’” Bohanan v. City of Knoxville , 136 S.W.3d 621, 625 (Tenn. 2004) (citing
Coffey v. City of Knoxville, 866 S.W.2d 516, 519 (Tenn. Workers Comp. Panel 1993)).

                                                   -3-
County Chancery Court. Thereafter, she filed a “Motion to Allow Claimant to Obtain
Additional Medical Proof” seeking to depose Dr. Hopkins. The chancery court granted Mrs.
Jeffrey’s motion, Dr. Hopkins’ deposition was taken on January 19, 2010, and the case was
referred back to the ALJ for reconsideration.

        After consideration of Dr. Hopkins’ deposition testimony, the ALJ issued a Modified
Order of Judgment6 in which it found that the testimony of Drs. Davis and Guerra had
rebutted the statutory presumption of causation, and that Mrs. Jeffrey failed to prove the
existence of “a substantial causal connection between [Decedent’s] occupation as a
firefighter and his coronary artery disease” or that “his occupation had a direct causal
connection to his congestive cardiomyopathy and death.”

       Mrs. Jeffrey then filed a “Motion for Review of Final Order by the Administrative
Law Judge” in the chancery court. A judicial review hearing was held, after which the
chancery court entered an order in which it noted that “had it been the initial decision-maker,
it would have ruled differently than [the ALJ] and reversed [the City’s] denial of benefits.”
However, finding that the denial of benefits was not made upon unlawful procedure, that it
was not arbitrary and capricious, and that it was not unsupported by evidence that is
substantial and material in light of the record, the chancery court affirmed the ALJ’s denial
of Mrs. Jeffrey’s claim for HHL benefits. Mrs. Jeffrey timely appealed to this Court.


                                      II.   I SSUE P RESENTED

        Appellant presents the following issue for review, as summarized:

1.      Whether the chancery court erred in upholding the ALJ’s decision to deny Mrs.
        Jeffrey HHL benefits when the ALJ acted arbitrarily or capriciously and when it failed
        to assign sufficient weight to both the statutory presumption of causation and the
        testimony of Dr. Hopkins.

For the following reasons, we affirm the decision of the chancery court.




       6
        It appears that the Modified Order of Judgment is not included in the record on appeal. However,
the substance of the order is recited in the chancery court’s December 19, 2011 “Order Affirming
Administrative Denial of Plaintiff’s Appeal for Death Benefits.”

                                                  -4-
                               III.   S TANDARD OF R EVIEW

      “Review of the ALJ’s determinations is pursuant to the Uniform Administrative
Procedures Act (“UAPA”), and is governed by Tennessee Code Annotated section 4-5-
322(h)[.]” Pittman v. City of Memphis, 360 S.W.3d 382, 386 (Tenn. Ct. App. 2011) (citing
Tidwell v. City of Memphis, 193 S.W.3d 555 (Tenn. 2006)). Pursuant to section 4-5-322(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)(A) Unsupported by the evidence that is both substantial and material in the
       light of the entire record.
       (B) In determining the substantiality of evidence, the court shall take into
       account whatever fairly detracts from its weight, but the court shall not
       substitute its judgment for that of the agency as to the weight of the evidence
       on questions of fact.

Tenn. Code Ann. § 4-5-322(h). We, like the trial court, are confined to this scope of review.
Pittman, 360 S.W.3d at 387 (citing CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536,
540 (Tenn. 1980)).

                                      IV. D ISCUSSION

       Tennessee Code Annotated section 7-51-201(b)(1) provides as follows:

       Whenever the State of Tennessee, or any municipal corporation or other
       political subdivision of the state maintains a regular fire department manned
       by regular and full-time employees and has established or hereafter establishes
       any form of compensation, other than workers’ compensation, to be paid to
       such firefighters for any condition or impairment of health that results in loss
       of life or personal injury in the line of duty or course of employment, there
       shall be and there is hereby established a presumption that any impairment of
       health of such firefighters caused by disease of the lungs, hypertension or heart

                                              -5-
        disease resulting in hospitalization, medical treatment or disability, shall be
        presumed, unless the contrary is shown by competent medical evidence, to
        have occurred or to be due to accidental injury suffered in the course of
        employment. Any such condition or impairment of health which results in
        death shall be presumed, unless the contrary is shown by competent medical
        evidence, to be a loss of life in [the] line of duty, and to have been in the line
        and course of employment, and in the actual discharge of the duties of such
        firefighter’s position, or the sustaining of personal injuries by external and
        violent means or by accident in the course of employment and in the line of
        duty. Such firefighter shall have successfully passed a physical examination
        prior to such claimed disability, or upon entering government employment, and
        such examination fails to reveal any evidence of the condition or disease of the
        lungs, hypertension or heart disease.


         In this case, the parties apparently do not dispute that Mrs. Jeffrey is entitled to a
rebuttable presumption that her husband’s cardiac condition occurred because of, or was due
to, his employment with the Memphis Fire Department.7 This appeal focuses on whether the
City successfully rebutted the presumption by competent medical evidence–Mrs. Jeffrey
claims that it did not–and if so, whether Mrs. Jeffrey demonstrated, by a preponderance of
the evidence, that Decedent’s occupation caused his cardiac condition.8 See Bohanan v. City
of Knoxville, 136 S.W.3d 621, 625 (Tenn. 2004) (“Once the presumption has been overcome,
it disappears, and the employee must then prove causation by a preponderance of the
evidence as in any other workers’ compensation case.”) (citations omitted).

        In her brief to this Court,9 Mrs. Jeffrey contends that “the decision makers below
failed to assign sufficient weight to the statutory presumption[,]” and at oral argument before
this Court she essentially argued that the medical proof in the case was balanced, and
therefore, that the statutory presumption should have tipped the balance in her favor. We


        7
        As stated above, the ALJ noted in his initial order that “[t]he parties stipulated that Claimant,
Gwe[n]dolyn Jeffrey, as surviving spouse of Decedent, Wendell Jeffrey, was entitled to the statutory
presumption as set forth in T.C.A. section 7-51-201.”
        8
          In her appellate brief, Mrs. Jeffrey argues, without further elaboration or citation to the record, that
“[the City] determined that her deceased husband’s medical condition was caused by his occupation when
it admitted him into the HHL Program.” However, there is no indication that HHL benefits were sought prior
to Decedent’s death when they were denied by the City. This issue is without merit.
        9
         We note that Mrs. Jeffrey’s appellate brief does not contain a single citation to the record as
required by Tennessee Rule of Appellate Procedure 27.

                                                       -6-
need not decide whether her theory is correct because we simply cannot agree with her
characterization of the medical proof as equally balanced.

        In their letters, both Dr. Guerra and Dr. Davis opined that Decedent’s cardiomyopathy
was unrelated to his employment. Again, in his deposition, Dr. Davis stated that Decedent’s
occupation was not the cause of his cardiac problems. Dr. Davis explained that hypertension
(high blood pressure) is the most common cause of cardiomyopathy, and he blamed
Decedent’s cardiomyopathy upon his “severe hypertension” which was caused by both his
risk factors–gender, race, and his family history of hypertension–and his pathologic
factors–obesity, sleep apnea, and his failure to take his hypertensive medication as
prescribed. Dr. Davis stated that Decedent’s arrhythmia was “probably due to his structural
heart disease[,]” but he conceded that “it could have been exacerbated or tripped off” by the
stress of responding to two fire calls earlier that day. He likewise acknowledged that the
physical and mental stress of Decedent’s occupation could have advanced or complicated the
course of his severe cardiac disease. Ultimately, though, he concluded that Decedent’s
“cardiac response was due to his severe hypertension” brought on by his risk and pathologic
factors.

       In his deposition, Dr. Guerra stated that, like most cases of cardiomyopathy, the
etiology of Decedent’s cardiomyopathy could not be determined. However, he ruled out
Decedent’s employment as a cause. He noted Decedent’s heart’s “very poor capacity to
pump” as measured by his “ejection fraction,” the potential for his sleep apnea to compound
an existing heart issue, and that Decedent was overweight or obese. Dr. Guerra disagreed
that occupational stress could have contributed to Decedent’s sudden death, and he stated that
even if Decedent had not responded to fire calls earlier that day, that “he could have died
anyway” as “people with dilated cardiomyopathy die suddenly, no matter what they are
doing.” He concluded that Decedent’s death was not stress related, “He died from his own
disease, his cardiomyopathy.”

       Again, at oral argument, Mrs. Jeffrey essentially argued that Dr. Hopkins’ deposition
testimony counterbalanced that of Drs. Davis and Guerra. However, with regard to Dr.
Hopkins, her appellate brief, without citation to the record, states only that “Dr. Hopkins
found there to be a causal connection between Mr. Jeffrey’s occupation and his death and
that “Dr. Hopkins testified that the physical and mental stress of Mr. Jeffrey’s occupation
‘contributed to the progression of his cardiomyopathy, and that, in turn, was the substrate for
his sudden cardiac death.”10 In response, the City correctly points out that Dr. Hopkins was


        10
          In her appellate brief, Mrs. Jeffrey twice notes that the ALJ’s Modified Order of Judgment did not
reference the testimony of Dr. Hopkins. Assuming this alleged omission is any way relevant, the Modified
                                                                                               (continued...)

                                                    -7-
unable to identify either the cause of Decedent’s cardiomyopathy or the cause of his death.
Dr. Hopkins testified, as a general proposition, that stress can cause or aggravate
cardiomyopathy, but he acknowledged that he had no independent and specific knowledge
of Decedent’s stress exposure. Similarly, he testified that repeated exposure to smoke,
chemicals, burning acids and ash “could be expected to be deleterious to [a person’s] cardiac
condition[,]” but he later conceded that he was only making a “general statement” and that
he did not know whether Decedent ever inhaled any smoke.

        Again, “[t]o rebut the presumption of causation, ‘[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.’” Bohanan, 136 S.W.3d at
625 (citing Coffey v. City of Knoxville, 866 S.W.2d 516, 519 (Tenn. Workers Comp. Panel
1993)). In his Modified Order of Judgment, the ALJ found that the deposition testimony of
Drs. Davis and Guerra “provided competent medical proof that [Decedent’s] congestive
cardiomyopathy and death were not caused by his occupation as a firefighter,” and therefore,
that the City had successfully rebutted the statutory presumption of causation. It then
concluded, with the presumption dissolved, that Mrs. Jeffrey had failed to prove a substantial
causal connection between Decedent’s employment and his cardiomyopathy and death. The
chancery court affirmed the ALJ’s decision, finding that it was not made upon unlawful
procedure, that it was not arbitrary and capricious, and that it was supported by substantial
and material evidence.

       Based upon the foregoing, it is clear that the City provided competent medical proof
that Decedent’s cardiomyopathy and death was not caused by his occupation as a firefighter.
Both Dr. Davis and Dr. Guerra testified by deposition that the etiology of Decedent’s cardiac
problems was unrelated to his employment. Moreover, Dr. Davis identified risk and
pathologic factors which he claimed caused Decedent’s hypertension and cardiomyopathy,
and Dr. Guerra disagreed that Decedent’s sudden death was stress related. Accordingly, we
cannot say that the ALJ’s determinations–that the City carried its burden of rebutting the
statutory presumption of causation and that Mrs. Jeffrey failed to then prove causation by a
preponderance of the evidence–are not supported by substantial and material evidence or that
they are arbitrary and capricious. The decision of the chancery court is affirmed.




       10
         (...continued)
Order of Judgment is not included in the record before us. It is the duty of the appellant to prepare a
complete and accurate record on appeal. Tenn. R. App. P. 24(b). Thus, any omitted reference error is
waived.

                                                  -8-
                                    V.    C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellant, Gwendolyn Jeffrey, and her surety, for which execution
may issue if necessary.

                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




                                             -9-
