                 IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE                                 FILED
                                                                              March 3, 1998
ALEXANDER JACKSON BULLARD,                          )   C/A N0. 03A01-9705-CH-00193
                                                    )                       Cecil Crowson, Jr.
              Plaintiff-Appellee,                   )   HAMILTON CHANCERY   Appellate C ourt Clerk
                                                    )
v.                                                  )   HON. HOWELL N. PEOPLES,
                                                    )   CHANCELLOR
THE CITY OF CHATTANOOGA                             )
FIREMEN’S AND POLICEM EN’S                          )
INSURANCE AND PENSION 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 Plaintiff-Appellee.

ARV IN H. R EING OLD , P.C., Chatta nooga, fo r Defen dant-Ap pellant.


                                       O P I N IO 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 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 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 doctor, Michael Geer, M.D., requested that Mr. Bullard not
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 h eart p roblems, app lied f or job-re lated disability.

       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 review of decisions by civil service boards of a county or
municipa lity which affe cts the emp loyment status o f 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 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 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
                     agen cy;
                     (3) Made upon unlawful procedure;
                     (4) Arbitrary or capricious or characterized 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 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 Anno tated § 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 (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 opinion that this presumption applies to the Petitioner
because h e was em ployed by a regu lar fire depa rtment ma nned by full-
time 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 K noxville, 826
S.W.2d 114 (T enn. 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 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 evidence that is both substantial and
material.

       The C ourt mu st first fin d the ca use of Mr. B ullard’s disability.
Both doctors examining Mr. Bullard agree that he cannot perform the
physical ability test because it would place him at sign ificant 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 o pined that th e heart attack could hav e been ca used by his
job, but that he does not believe the coronary artery problems 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 these problems is the
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 attack and the
heart problems that 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 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 comp letely normal. Although D r.
Geer has stated that he d oes not believe Bullard’s artery disease 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.”

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                     Dr. Thomas Mullady was not Bullard’s physician but has
             analyzed B ullard’s con dition and m edical record s. Dr. Mu llady initially
             stated that he did not believe Mr. Bullard’s heart 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 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 cours e of his em ployment.
                           Now, sta rting with tha t presump tion, after revie wing 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 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 presume.

                    A. Presume that his employment 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 that 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 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 presu mption 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. 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 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 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 cases

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applying the statutory presumption and as controlling authority to reverse 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 condition, and the Court said “this testimony is affirmative evidence 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 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 a gree with the C hancello r’s ev alua tion of th e doctors’ tes timo ny,

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

eviden ce”.

               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. Godd ard, P.J.




___________________________
William H. Inman, Sr.J.




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