                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


HENRICO COUNTY SHERIFF'S OFFICE
                                         MEMORANDUM OPINION* BY
v.   Record No. 2241-98-2            JUDGE RUDOLPH BUMGARDNER, III
                                             AUGUST 17, 1999
PAUL T. McQUAY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Ralph L. Whitt, Jr. (Williams, Lynch & Whitt,
          on briefs), for appellant.

          Malcolm Parks (Ruth E. Nathanson; Maloney,
          Huennekens, Parks, Gecker & Parsons, P.C., on
          brief), for appellee.


     The Henrico County Sheriff's Office appeals the

commission's award of temporary total disability benefits and

medical benefits to Paul T. McQuay, a deputy sheriff, for an

occupational disease arising from his employment.   Henrico

County argues that the commission erred in finding that (1)

McQuay's cardiac arrhythmia constitutes a disease; (2) it failed

to rebut the presumption of Code § 65.2-402; and (3) McQuay was

entitled to benefits under Code § 65.2-401.    McQuay appeals the

commission's finding that he failed to establish a compensable

change in condition.   We affirm the commission's rulings on the



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
first two issues, and as a result, we need not address the other

two issues.

     On appeal, we view the evidence in the light most favorable

to McQuay, the prevailing party before the commission.     See

Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,

339 S.E.2d 916, 916 (1986).   So viewed, the evidence established

that McQuay was a fifty-six-year-old deputy sheriff responsible

for the care, custody and control of jail inmates and for

maintaining order and security inside the jail.   When promoted

to sergeant, McQuay assumed administrative duties in addition to

those of a deputy.   The responsibilities included scheduling

shifts, overseeing deputies, and processing paperwork for new

committals.

     McQuay testified that the job entailed a high level of

stress.   His work exposed him to physical violence and danger on

a regular basis.   Deputies routinely conducted strip searches

and shakedowns to seize contraband and weapons from inmates who

often resisted.    McQuay regularly intervened in altercations

between inmates and between inmates and deputies, and

occasionally he required medical attention for resulting

injuries.   He feared being infected with communicable diseases

during his close dealings with the prisoners.   While off-duty,

McQuay was required to carry his badge and sidearm and to

intervene if he observed criminal activity.



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        During jail renovations in the summer of 1996, civilians

worked in the jail and required protection.     The deputies had to

monitor carefully the tools used by construction workers so the

inmates would not gain access to them.     McQuay testified that

those security concerns "raised the stress level probably two

hundred percent."

        Other sources of stress for McQuay included the death of

his father in an automobile accident in 1993, and the murder of

his brother during a drive-by shooting in 1995.     The next year,

McQuay experienced difficulties with two jail supervisors.        The

evidence also proved McQuay smoked one pack of cigarettes a day

for more than twenty years and consumed twenty beers a week for

a period of years.    After August 1996, he reduced his intake of

nicotine and alcohol by half.    McQuay drank two cups of

caffeinated coffee per day and occasionally had a caffeinated

soft drink.

        In August 1996, McQuay was diagnosed with hypertension,

cardiac arrhythmia, ectopic heartbeats, and dizziness.      Dr.

Stephen L. Cavalieri, McQuay’s family physician, found him

disabled, and the commission awarded benefits for hypertension,

an occupational disease, from August 24, 1996 to September 22,

1996.    The memorandum of agreement listed the nature of the

illness as "Questionable HBP."

        McQuay returned to work on September 23, 1996 but became

disabled again on November 7, 1996.      On February 7, 1997, he

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filed an application seeking an award based on a change in

condition.   McQuay was fired when no one could determine when or

whether he could return to work.   On April 21, 1997, he amended

his claim to include the alternative theory that he had

experienced a new occupational disease, cardiac arrhythmia.

     The deputy commissioner granted benefits, and Henrico

County appealed.   The full commission reversed the deputy's

finding that McQuay proved a change in condition, but it

affirmed the award of benefits finding that McQuay suffered from

a new condition, cardiac arrhythmia.

     Henrico County argues that the commissioner erred in

finding that cardiac arrhythmia constituted a compensable

occupational disease.   Determining whether a condition

constitutes an occupational disease is a mixed question of law

and fact and is subject to judicial review.    See A New Leaf,

Inc. v. Webb, 257 Va. 190, 196, 511 S.E.2d 102, 104 (1999)

(citations omitted).    In its decision, the commission was

required to resolve conflicting medical opinions.    "A question

raised by conflicting medical opinion is a question of fact."

WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d

147, 152 (1997).   "A finding of fact made by the Commission,

based on evidence deemed by it to be credible, is conclusive and

binding on us and . . . is not subject to review."    Johnson v.

Capitol Hill, 189 Va. 585, 588, 54 S.E.2d 106, 107 (1949)

(citations omitted).    "The fact that there is contrary evidence

                                - 4 -
in the record is of no consequence."     Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).       We give

deference to the commission's finding of fact in our review of

the legal issue.

     McQuay experienced premature ventricular contractions, or

cardiac arrhythmias, because of some unknown triggering

mechanism.   The arrhythmias were persistent and occasionally

caused a great deal of pain.   The medical opinions differed on

whether McQuay's cardiac arrhythmia constituted an occupational

disease.   Dr. Robert E. Sperry, McQuay's treating cardiac

electrophysiologist, classified this condition as a "type of

cardiac disease."   Dr. Charles L. Baird, Henrico County's

consultant, classified the condition as an injury and not a

disease.   He testified that the manner in which the heart was

affected constituted a mechanical versus a structural change

that would be classified as a disease.    However, Dr. Baird

acknowledged that the American Heart Association classifies

cardiac "arrhythmias (disorders of heart rhythm)" under "other

cardiovascular diseases."   The commission found Dr. Baird's

distinction in the source of McQuay's heart malfunction

insignificant.   The record supports its finding that McQuay's

cardiac arrhythmia was a compensable disease.

     Next Henrico County argues that the commission erred in

finding that it did not rebut the presumption that McQuay's

condition was work related.    Code § 65.2-402(B) provides:

                                - 5 -
            Hypertension or heart disease causing . . .
            any health condition or impairment resulting
            in total or partial disability of . . .
            deputy sheriffs . . . 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.

     In Bass v. City of Richmond Police Dep't, 258 Va. 103, 515

S.E.2d 557 (1999), the Supreme Court held: "[t]o overcome the

presumption, the employer must show, by a preponderance of the

evidence, both that (1) the disease was not caused by his

employment, and (2) there was a non-work-related cause of the

disease."    Id. at 114, 515 S.E.2d at 562-63 (citation omitted).

In this case, the commission considered both parts of that

two-part test.   It noted that prior to Augusta County Sheriff's

Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), "the

employer had to pass a two-pronged test to rebut the

presumption.   First, the evidence had to establish a probable

non-work-related cause of the disease. . . . Secondly, the

evidence had to exclude work-related factors as a possible

contributing cause of the disease."

     The commission found that Henrico County satisfied one

prong of the test because it presented evidence that there were

non-work-related causes of the disease, primarily McQuay's

consumption of nicotine, alcohol, and caffeine.   However, to

satisfy the second prong of the test, Henrico County had to

exclude McQuay's work as a factor in his condition.    This it

                                - 6 -
failed to do.   To the contrary, the commission found "the

evidence is sufficient to prove [McQuay's] work was a proximate

cause of his cardiac arrhythmia."

     The record supports the commission’s finding.    McQuay's use

of nicotine, caffeine and alcohol contributed to the origination

and continuation of his cardiac arrhythmia.   While Dr. Baird

said those factors caused McQuay's condition and Dr. Sperry said

smoking was the primary cause, neither doctor conclusively ruled

out work stress as a contributing factor.   McQuay's first

primary physician, Dr. Cavalieri, reported on August 26, 1996

that "the exact etiology of his symptamology is unclear,

although it is very clear there is a lot of stress at work and

this is a trigger factor."    Dr. Cavalieri reported on September

3, 1996 that "I think out of the blue, [McQuay] has developed

hypertension and I believe is related to job stress . . . ."

His subsequent family physician, Dr. Kimberly L. Bird, reported

on February 12, 1997 that there were "multiple contributing

factors.   [McQuay] has an enormous amount of stress from

different areas . . . . Additionally, his work itself is very

stressful."

     When medical opinions conflict, the general rule is that

when an attending physician is positive in his diagnosis of a

disease, great weight will be given by the courts to this

opinion.   See McPeek v. P.W. & W. Coal Co., 210 Va. 185, 188,

169 S.E.2d 443, 445 (1969).   Based on the entire record, the

                                - 7 -
commission properly concluded that McQuay's cardiac arrhythmia

was caused, at least in part, by the significant stress he

experienced in the line of duty.   Henrico County failed to rebut

the statutory presumption by excluding work stress as a

contributing factor.

     For the reasons stated, we affirm the commission's award of

benefits.   Because we affirm the award, we need not address

other issues raised.

                                                          Affirmed.




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