COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Bumgardner

Argued at Salem, Virginia

TAZEWELL COUNTY SHERIFF'S OFFICE

and VIRGINIA MUNICIPAL GROUP

SELF-INSURANCE ASSOCIATION

MEMORANDUM OPINION* BY

v. Record No. 0005-99-3 JUDGE LARRY G. ELDER

JUNE 29, 1999

WILEY DONALD OWENS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Daniel E. Lynch (Ralph L. Whitt, Jr.;

Williams, Lynch & Whitt, on briefs), for

appellants.

Frederick W. Harman for appellee.

The Tazewell County Sheriff's Office and the Virginia

Municipal Group Self-Insurance Association (hereinafter

employer) appeal from a decision of the Virginia Workers'

Compensation Commission (commission) awarding disability and

medical benefits to Wiley Donald Owens (claimant) under the

Virginia Workers' Compensation Act (Act). On appeal, employer

contends that the commission erroneously held (1) that employer

failed to rebut the presumption of Code 65.2-402 that

claimant's heart disease was an occupational disease and

(2) that claimant proved his entitlement to benefits accrued on

January 18, 1996, the date of his myocardial infarction. For

the reasons that follow, we affirm the commission's award of

benefits.

Code 65.2-402(B) provides as follows:

Hypertension or heart disease causing the

death of, or any health condition or

impairment resulting in total or partial

disability of (i) salaried or volunteer

firefighters, (ii) members of the State

Police Officers' Retirement System,

(iii) members of county, city or town police

departments, (iv) sheriffs and deputy

sheriffs, (v) Department of Emergency

Services hazardous materials officers, and

(vi) city sergeants or deputy city sergeants

of the City of Richmond shall be presumed to

be occupational diseases, suffered in the

line of duty, that are covered by this title

unless such presumption is overcome by a

preponderance of competent evidence to the

contrary.

To rebut this presumption, "the employer must show, by a

preponderance of the evidence, both that 1) the claimant's

disease was not caused by his employment, and 2) there was a

non-work-related cause of the disease." Bass v. City of

Richmond Police Dep't, ___ Va. ___, ___ S.E.2d ___ (June 11,

1999) (citing Fairfax County Fire & Rescue Servs. v. Newman, 222

Va. 535, 539, 281 S.E.2d 897, 899-900 (1981); Page v. City of

Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978)).

In providing that the statutory presumption

may be overcome by a preponderance of the

evidence to the contrary, Code 65.2-402(B)

implicitly directs the Commission as finder

of fact to consider all evidence on the

issue of causation presented by the

claimant, as well as by the employer. When

the Commission determines that the employer

has failed to overcome the statutory

presumption, the claimant is entitled to an

award of benefits under the Act. See Code

65.2-400 to -407. On appeal from this

determination, the reviewing court must

assess whether there is credible evidence to

support the Commission's award.

Id. at ___, ___ S.E.2d at ___.

Evidence that job-related stress is one of several factors

contributing to a claimant's heart disease, if found credible by

the commission, is sufficient to prevent an employer from

proving the first prong required to rebut the presumption. See

id. at ___, ___ S.E.2d at ___ (implicitly holding such evidence

sufficient by remanding case with those facts to commission for

application of the proper legal standard); Augusta County

Sheriff's Dep't v. Overbey, 254 Va. 522, 527, 492 S.E.2d 631,

634 (1997) (noting that a claimant is entitled to benefits under

Code 65.2-402(B) when the evidence shows that at least one

cause of the claimant's heart disease was "related to the

employment"). Otherwise, proof of a non-work-related cause

under the second prong would always be sufficient to prove the

first prong, as well, an interpretation clearly rejected by the

Virginia Supreme Court.

Here, the commission concluded that employer failed to

rebut the first prong of the presumption of compensability

contained in Code 65.2-402(B) because the evidence proved

claimant's heart disease was caused, at least in part, by his

work. As a result, it concluded that employer's evidence on the

second prong--that non-work-related factors contributed to his

heart disease--was insufficient to rebut the presumption. We

hold that the commission applied the proper two-prong test,

recently re-affirmed by the Virginia Supreme Court in Bass, and

that credible evidence supports the commission's findings.

Claimant's treating physician, Dr. Najjar, opined that job

stress contributed to claimant's coronary artery disease and, in

fact, employer offered no evidence to rebut Najjar's opinion.

Employer also contends that the commission erred in

determining that claimant's evidence established a communication

of occupational disease on January 18, 1996. We disagree with

this contention. Under settled principles, an occupational

disease is compensable under the Act when a diagnosis of

occupational disease is communicated to the employee. See

Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 9, 365 S.E.2d

782, 787 (1988); Code 65.2-403. The commission's factual

findings regarding the date of communication, like all factual

findings of the commission, are binding on appeal if supported

by credible evidence. See Code 65.2-706(A); Falls Church

Constr. Co. v. Laidler, 254 Va. 474, 478-79, 493 S.E.2d 521, 524

(1997).

Here, claimant's answers to employer's interrogatories,

signed under oath and admitted into evidence before the deputy

commissioner, indicate that he was "advised by Dr. Najjar on

January 18, 1996[,] of there being a relationship between [his]

condition and [his] employment as a Deputy Sheriff." Further,

claimant testified that in his discussions with Dr. Najjar after

claimant's admission to the hospital on January 18, 1996, Dr.

Najjar told him that his work was responsible for his heart

problem. Based on this evidence, the commission found "that Dr.

Najjar told [claimant] his work was responsible for his heart

condition," quoting claimant's testimony that he and Dr. Najjar

had "talked about it two or three different times" during the

course of his hospitalization and surgery. Because credible

evidence supports the commission's finding, we will not reverse

it on appeal.

For these reasons, we hold that the commission did not err

in holding that employer failed to rebut the presumption of Code

65.2-402 that claimant's heart disease was an occupational

disease or in holding that claimant proved his entitlement to

benefits accrued on January 18, 1996, the date of his myocardial

infarction. Therefore, we affirm the commission's award of

benefits.

Affirmed.

*Pursuant to Code 17.1-413, recodifying Code 17-116.010,

this opinion is not designated for publication.

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