                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  July 21, 2011 Session

                     PAUL PITTMAN v. CITY OF MEMPHIS

              Direct Appeal from the Chancery Court for Shelby County
               No. CH-10-0974-3      Kenny W. Armstrong, Chancellor


                No. W2011-00513-COA-R3-CV - Filed August 18, 2011


Petitioner firefighter appeals denial of on-the-job injury benefits by the City of Memphis.
We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

John F. Canale, III, Memphis, Tennessee, for the appellant, Paul Pittman.

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

                                        OPINION

         This dispute involves the application of the presumption contained in Tennessee Code
Annotated § 7-51-201 that hypertension and injury to the heart and/or lungs sustained by a
police officer or firefighter is job-related. Petitioner/Appellant Paul Pittman (Mr. Pittman)
is a firefighter employed by Respondent/Appellee the City of Memphis (“the City”). Before
joining the Memphis Fire Department in February 1995, Mr. Pittman underwent a pre-
employment physical examination that did not reveal signs of hypertension or heart disease.
In 1996, he was diagnosed with hypertension and in April 1996 the City admitted Mr.
Pittman into the Heart, Hypertension, Lung (“HHL”) Program, which entitled him to benefits
under the City’s On-the-Job-Injury (“OJI”) policy. He has been receiving OJI benefits for
hypertension since April 25, 1996.

       In July 2005, Mr. Pittman, then 37 years of age, was hospitalized for chest pain after
feeling fatigued at work. On July 15, 2005, he underwent a coronary angiography which
revealed a 90 percent blockage of Mr. Pittman’s left anterior artery. Mr. Pittman was
diagnosed with coronary artery disease and underwent surgery to have a stent placed in his
coronary artery.

        On July 22, 2005, Mr. Pittman filed an OJI report seeking admission into the HHL
Program for heart disease. Pursuant to City policy, Mr. Pittman’s medical records were
reviewed by three physicians. One of the physicians, Jesse. T. Davis, Jr., M.D. (Dr. Davis),
stated that he found no causal connection between Mr. Pittman’s occupation as a firefighter
and his coronary artery disease. Based on Dr. Davis’ statement, the City denied Mr.
Pittman’s claim. Mr. Pittman appealed denial of his claim.

       The appeal was heard before an Administrative Law Judge (“ALJ”) on October 29,
2009. The deposition testimony of Dr. Davis and Mr. Pittman’s expert, Maureen Smithers,
M.D. (Dr. Smithers) were submitted to the ALJ.1 Following a hearing in October 2009, the
ALJ found that Mr. Pittman was entitled to the statutory presumption of causation set-forth
in Tennessee Code Annotated § 7-51-201. The ALJ further found that the City denied Mr.
Pittman’s claim for OJI benefits based on Dr. Davis’ “denial of a causal relationship”
between Mr. Pittman’s coronary artery disease and his job, and the opinions of “other
reviewing physicians.” The ALJ concluded that, “through the testimony of Dr. Davis,” the
City had provided competent medical proof sufficient to rebut the statutory presumption.
The ALJ found that Mr. Pittman had failed to prove substantial causation between his
occupation and his coronary artery disease through competent medical proof. The ALJ
affirmed denial of Mr. Pittman’s claim for benefits.

       In May 2010, Mr. Pittman filed petition for review in the Chancery Court for Shelby
County pursuant to Tennessee Code Annotated §§ 4-5-322 and 27-9-114. In his petition, Mr.
Pittman asserted the ALJ acted in violation of statutory provisions where the weight of the
evidence did not support a finding that the City had rebutted the presumption set-forth in
Tennessee Code Annotated § 7-51-201. He asserted the ALJ’s finding was not supported by
the weight of the evidence, and that its determination was arbitrary or capricious or
characterized by an abuse of discretion. Following a hearing in December 2010, the trial
court affirmed the ALJ’s conclusion. Mr. Pittman filed a timely notice of appeal to this
Court.



        1
          Dr. Davis testified that he is board certified in general surgery and previously was certified in
thoracic and vascular surgery, and that he has practiced cardiovascular medicine since 1970. Dr. Smithers
testified that she is a board certified cardiologist, graduated from medical school in 1987, and began
practicing cardiovascular medicine in 1991.

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                                      Issues Presented

       The issues presented by this appeal, as we re-word them, are:

       (1)    Whether the trial court and the ALJ erred by failing to properly apply
              the presumption set-forth in Tennessee Code Annotated § 7-51-201.

       (2)    Whether substantial and material evidence supports the trial court’s
              determination that Mr. Pittman’s coronary artery disease was not
              caused by his occupation.

                                    Standard of Review

       We review the trial court’s findings of fact with a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not
reverse the trial court’s factual findings unless they are contrary to the preponderance of the
evidence. We review the trial court’s conclusions on matters of law de novo, however, with
no presumption of correctness. Tidwell v. Memphis, 193 S.W.3d 555, 559 (Tenn. 2006). Our
review of a trial court’s application of the law to the facts is de novo, with no presumption
of correctness. State v. Ingram, 331 S.W.3d 746, 755 (Tenn. 2011).

      Review of the ALJ’s determinations is pursuant to the Uniform Administrative
Procedures Act (“UAPA”), and is governed by Tennessee Code Annotated § 4-5-
322(h)(2005). Tidwell v. City of Memphis, 193 S.W.3d 555 (Tenn. 2006). Pursuant to the
UAPA:

       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 evidence which 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

                                              -3-
      on questions of fact.

Tennessee Code Annotated § 4-5-322(h)(2005). Appellate review is confined to the same
scope of review. CF Indus. v. Tennessee Pub. Serv. Comm’n, 599 S.W.2d 536, 540 (Tenn.
1980).

                                         Discussion

      Tennessee Code Annotated § 7-51-201 provides, in pertinent part:

              (c)(1) Whenever any county having a population greater than four
      hundred thousand (400,000) according to the 1980 federal census or any
      subsequent federal census, or any municipal corporation within such county,
      maintains within its fire department, and has established or hereafter
      establishes any form of compensation, other than workers’ compensation, to
      be paid to a person employed by such division as an emergency medical
      technician or emergency medical technician advanced or paramedic, for any
      condition or impairment of health that shall result 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 person
      caused by hypertension or heart disease resulting in hospitalization, medical
      treatment or any 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 line of duty, and to have
      been in the line and course of employment, and in the actual discharge of the
      duties of the 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 person shall have successfully passed a physical
      examination prior to such claimed disability, or upon entering governmental
      employment, and such examination fails to reveal any evidence of the
      condition of hypertension or heart disease.
              (2) It is hereby declared to be the legislative intent that this section is
      to be remedial in character and to permit and require any such municipal
      corporation or political subdivision of the state maintaining such division to
      be covered by its provisions.




                                              -4-
Tennessee Code Annotated § 7-51-201(c)(1)(2005).2 It is undisputed in this case that,
pursuant to this section, Mr. Pittman is entitled to a rebuttable presumption that his coronary
artery disease occurred or is due to injury suffered in the course of his employment as a
firefighter for the City. It is also undisputed that the City may rebut the presumption by
competent medial evidence. The first question presented by this appeal is whether the ALJ
properly applied the statutory presumption.

        The presumption provided by the Code may be rebutted by “competent” and
“affirmative” medical 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.” Tennessee Code Annotated § 7-51-201(c)(1); Coffey v. City of Knoxville, 866
S.W.2d 516, 519 (Tenn. 1993). When the statutory presumption has been rebutted, the
burden shifts to the employee to demonstrate causation by a preponderance of the evidence.
Bohanan v. City of Knoxville, 136 S.W.3d 621, 625 (Tenn. 2004). The statute is remedial
in nature, Tennessee Code Annotated § 7-52-201(c)(2), and it generally is construed within
the context of workers’ compensation cases. E.g., Bohanan, 136 S.W.3d 621; Krick v. City
of Lawrenceburg, 945 S.W.2d 709 (Tenn. 1997); Coffey v. City of Knoxville, 866 S.W. 2d
516 (Tenn. 1993). The appellate court reviews issues of fact in workers’ compensation
cases de novo with a presumption of the correctness of the findings, unless the evidence
preponderates otherwise. Bohanan, 136 S.W.3d at 624. Generally, the first issue in a case
denying benefits, notwithstanding the statutory presumption, would be “whether the evidence
preponderates against the finding of the trial judge that the presumption created by
[Tennessee Code Annotated § 7-21-201(c)(1)] had been rebutted.” Coffey, 866 S.W.2d at
517. When the expert medical testimony differs, decisions concerning credibility and the
weight to be afforded the testimony generally are within the sound discretion of the trial
court. Bohanan, 136 S.W.3d at 624 (citation omitted). However, in cases wherein the expert
medical testimony is by deposition, the reviewing court may “‘draw its own conclusions
about the weight and credibility of that testimony, since [it is] in the same position as the trial
judge.’” Id. (quoting Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997)).
Accordingly, in those cases, the appellate court generally may review the expert medical
testimony without deference to the trial court with respect to credibility or the weight of the
evidence when determining whether the evidence preponderates against the findings of the
trial court. See Bohanan, 136 S.W.3d 621; Krick, 945 S.W.2d 709; Coffey, 866 S.W. 2d 516.

       Review under the UAPA, however, is more limited and is constrained by the
provisions of Tennessee Code Annotated § 4-5-322(h), as noted above. When reviewing a
case under the UAPA, after confirming that the agency has applied the proper legal


       2
       The City has opted out of the Workers’ Compensation Law and has established its own
compensation procedures. Tidwell v. City of Memphis, 193 S.W. 3d 555, 557 (Tenn. 2006).

                                                -5-
principles, we must consider the factual findings in dispute and determine whether the
agency’s basis for making the findings was reasonably sound. City of Memphis v. Civil Serv.
Comm’n of City of Memphis, 238 S.W.3d 238, 243 (Tenn. Ct. App. 2007)(citation omitted).
Like the trial court, we must apply the substantial and material evidence standard when
reviewing the findings of fact of the agency. Id. “Substantial and material evidence is ‘such
relevant evidence as a reasonable mind might accept to support a rational conclusion’ and
to furnish a reasonably sound basis for the decision under consideration.” Id. (quoting City
of Memphis v. Civil Serv. Comm'n, 216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson
Mobilphone Co. v. Tenn. Pub. Serv. Comm'n, 876 S.W.2d 106, 110–11 (Tenn. Ct.
App.1993)). We are required to take into account evidence in the record that fairly detracts
from the weight of the evidence, but we may not substitute our judgment on factual questions
by re-weighing the evidence. Id. (citing see Tenn. Code Ann. § 4–5–322(h)(5)(B)). The
substantial and material evidence standard does not permit us to reverse an administrative
decision only because the evidence could also support another result. Id. (citation omitted).
Rather, we may reject an agency’s determination only if a reasonable person necessarily
would reach a different conclusion based on the evidence. Id.

        The UAPA also permits us to modify or reverse an agency’s decision that is
“[a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.” Tenn. Code Ann. § 4–5–322(h)(4)(2005). A decision unsupported
by substantial and material evidence is arbitrary and capricious. Id. (citing City of Memphis
v. Civil Serv. Comm'n, 216 S.W.3d 311, 315 (Tenn. 2007)). Additionally, “a clear error of
judgment can also render a decision arbitrary and capricious notwithstanding adequate
evidentiary support.” Id. (citing City of Memphis v. Civil Serv. Comm'n, 216 S.W.3d at 316).
A decision is arbitrary or capricious if it “is not based on any course of reasoning or exercise
of judgment, or . . . disregards the facts or circumstances of the case without some basis that
would lead a reasonable person to reach the same conclusion.” Id. (quoting City of Memphis
v. Civil Serv. Comm'n, 216 S.W.3d at 316 (quoting Jackson Mobilphone, 876 S.W.2d at
110–11)).

        In this case, Mr. Pittman asserts the ALJ and the trial court failed to apply the statutory
presumption set forth in Tennessee Code Annotated § 7-51-201 correctly. He asserts that the
ALJ placed the initial burden of causation on him to demonstrate a causal connection, rather
than on the City to rebut the presumption of causation. He asserts that he is therefore entitled
to relief because the ALJ’s conclusions are in violation of the statutory provision and
arbitrary and capricious.

       Upon review of the record, we observe that the ALJ specifically referenced Tennessee
Code Annotated § 7-51-201 as a basis of its findings. The ALJ also stated in its conclusions
of law that Mr. Pittman was entitled to the statutory presumption of causation. The court

                                                -6-
concluded, however, that the City rebutted the presumption though Dr. Davis’ testimony,
providing competent medical proof that Mr. Pittman’s coronary artery disease was not caused
by his occupation. On review, the chancery court determined that the ALJ properly applied
the statutory presumption. The record does not support Mr. Pittman’s assertion that the
tribunals below did not apply the statutory presumption and afford him the benefits thereof.

        Mr. Pittman also asserts that the trial court failed to properly weigh the medical
evidence in reaching its decision. Mr. Pittman asserts that both Dr. Davis and Dr. Smithers
testified that there is a causal relationship between hypertension and heart disease. He further
asserts that the City determined that his hypertension was caused by his occupation where
it admitted him into the HHL Program for hypertension in 1996. He submits that the
evidence thus establishes a substantial causal relationship between his occupation and his
heart disease because hypertension is a cause of coronary heart disease, and his occupation
is the cause of his hypertension. Mr. Pittman further asserts that Dr. Smithers, the board-
certified cardiologist who treated him, testified that she believed there was a “substantial
causal relationship between [Mr. Pittman’s] occupation as a firefighter and his coronary
artery disease.” He contends, in essence, that Dr. Smithers’ testimony outweighs Dr. Davis’
testimony that Mr. Pittman’s cardiac disease was related not to his occupation, but to his
family history, hypertension, hyperlipidemia, and nicotine use. Mr. Pittman asserts that the
City accordingly failed to rebut the statutory presumption, and that the determinations of the
ALJ are not supported by substantial and material evidence.

       The City, on the other hand, asserts that the testimony of Dr. Davis is competent
medical proof to demonstrate that Mr. Pittman’s heart disease was caused by factors not
related to his occupation as a firefighter. The City further submits that Dr. Smithers “tacitly
admitted” that she could not determine that Mr. Pittman’s occupation as a firefighter caused
his heart disease where she testified that she could not separate his occupation from the other
factors, or opine as to whether Mr. Pittman would have developed coronary artery disease
had he been engaged in another occupation.

       Upon review of the record, it is clear that the City provided competent medical proof
that Mr. Pittman’s coronary artery disease was not caused by his occupation as a firefighter.
Both Dr. Davis and Dr. Smithers testified that coronary artery disease is caused by multiple
factors, and neither affirmatively testified that Mr. Pittman’s occupation as a firefighter was
a more significant factor. Further, Dr. Davis affirmatively testified that Mr. Pittman would
have coronary vessel disease regardless of his occupation. Therefore, notwithstanding the
remedial nature of the statute, we cannot say that ALJ’s determination that the City carried
its burden to rebut the statutory presumption is not supported by substantial and material
evidence, that it is characterized by an abuse of discretion, or that it is arbitrary and
capricious.

                                              -7-
        Once the City rebutted the statutory presumption, the burden shifted to Mr. Pittman
to demonstrate, by a preponderance of the evidence, that his occupation caused his coronary
artery disease. Although it is undisputed that Mr. Pittman was admitted to the HHL Program
for hypertension and that hypertension is a factor in coronary artery disease, we cannot say
that this evidence, without more, is sufficient to demonstrate causation between Mr.
Pittman’s occupation as a firefighter and coronary artery disease. The undisputed testimony
was that coronary artery disease may be caused by many factors, including family history,
nicotine use, hyperlipidemia and obesity, in addition to hypertension. It is also undisputed
that several of these factors are present in Mr. Pittman’s case. Thus, we cannot say that the
ALJ’s determination is not supported by substantial and material evidence, that it is
characterized by and abuse of discretion, or that it is clear error.

                                          Holding

       In light of the foregoing, the judgment of the trial court is affirmed. Costs of this
appeal are taxed to the appellant, Paul Pittman, and his surety, for which execution may issue
if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




                                             -8-
