                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


SHERMAN ROY DELP
                                           MEMORANDUM OPINION* BY
v.   Record No. 1393-00-3                 JUDGE ROBERT J. HUMPHREYS
                                              FEBRUARY 27, 2001
GALAX (CITY OF) POLICE AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Joseph J. Steffen, Jr., for appellant.

             Ralph L. Whitt, Jr. (Williams, Lynch & Whitt,
             P.C., on brief), for appellees.


     Sherman Roy Delp appeals a decision of the Workers'

Compensation Commission denying his claim for medical and wage

benefits incurred due to his myocardial infarction of November

5, 1996. 1   Delp contends that his employer, the City of Galax

Police Department (employer), failed to establish by a

preponderance of evidence that work-related factors did not have



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
        On June 30, 1999, a panel of this Court initially
considered this appeal, styled as Record No. 2599-98-3. At that
time, we ordered the matter reversed and remanded and directed
the commission to enter findings of fact consistent with the
requirements of Bass v. City of Richmond Police Dep't, 258 Va.
103, 515 S.E.2d 557 (1999), a case decided by our Supreme Court
during the pendency of the appeal. The present appeal stems
from the commission's decision on remand.
a causative role in Delp's development of heart disease.

Finding no error, we affirm the commission's decision.

        Code § 65.2-402(B) provides the following in pertinent

part:

             Hypertension or heart disease causing the
             death of, or any health condition or
             impairment resulting in total or partial
             disability of . . . members of county, city
             or town police departments . . . 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.

        The Supreme Court of Virginia has explained that:

             Under the statutory language, the employer
             may overcome the presumption by producing "a
             preponderance of competent evidence to the
             contrary." To overcome the 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. Thus, if the employer does not
             prove by a preponderance of the evidence
             both parts of this two-part test, the
             employer has failed to overcome the
             statutory presumption.

             The determination whether the employer has
             met this burden is made by the Commission
             after exercising its role as finder of fact.
             In this role, the Commission resolves all
             conflicts in the evidence and determines the
             weight to be accorded the various
             evidentiary submissions. "The award of the
             Commission . . . shall be conclusive and
             binding as to all questions of fact."

Bass v. City of Richmond Police Dep't, 258 Va. 103, 114, 515

S.E.2d 557, 562-63 (1999) (citations omitted).


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     Here, the evidence established that Delp, age 55 at the

time of the hearing, was employed as a police officer with

employer for 25 years.    His various positions required him to

perform many stressful duties, such as traffic control, making

arrests, intercession in domestic disputes, and maintaining

order throughout the municipality.      He often had to use physical

force and draw his weapon, and testified that he was "always on

the run," and "never" got "to relax."     Delp also consistently

smoked two to three packs of cigarettes per day for

approximately 30 years.   He exercised poor dietary habits and

had a family history of heart disease.     Prior to 1996, Delp had

been diagnosed with high cholesterol, hypertension and

non-insulin dependent diabetes.

     On November 5, 1996, Delp experienced persistent shoulder

pain which prompted him to seek treatment on November 7, 1996.

Attending physicians diagnosed Delp with a myocardial infarction

(heart attack).   As a result, Delp underwent cardiac

catheterization and five-vessel coronary by-pass surgery.     He

was discharged on November 16, 1996.

     Dr. Rodney Savage, the physician who performed Delp's

catheterization, opined on January 2, 1997, that Delp's cardiac

risk factors were "age, male sex, smoking, hypercholesterolemia

and aterial hypertension plus positive family history . . . ."

Dr. Savage reported that Delp felt his employment had led "to


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poor eating habits, stress on the job with associated

hypertension, and continued smoking."   In a report of March 20,

1997, Dr. Savage noted that he suspected these factors "to some

degree, add[ed] to his non-job related cardiac risk factors."

     When deposed on June 10, 1997, Dr. Savage declined to

assert that the job stress actually caused the heart attack, but

he could not exclude work-related stress as a contributing

factor to the heart attack or the underlying disease.       He

stated:

          I frankly feel that [Delp's] lifestyle
          habits were so profoundly irresponsible that
          -- for so many years that it is hard for me
          to be highly supportive of the thought that
          it was his job that did it to him. . . .

           *      *       *      *      *      *        *

          [H]is many non-job-related risk factors were
          adequate to explain his development of
          severe diffuse atherosclerosis. Whether or
          not job stress played some role in
          precipitating his heart attack, I can't
          answer . . . . [W]hether or not he spent
          years on a police force hot reacting,
          exacerbating his underlying risk factors, I
          can't tell you. I don't have objective data
          to support that.

     On March 10, 1997, Dr. Stephen Irvin, Delp's family

physician, wrote a letter to Delp's counsel stating that Delp's

employment in a high stress job "could have lead [sic] to his

recent heart attack."   On March 11, 1997, Dr. Strain also wrote

a letter to Delp's counsel and stated that there were many risk

factors for coronary disease, such as "diabetes, hypertension,

                               - 4 -
smoking, family history, hyperlipidemia, and also high stress."

He opined that it was "certainly possible" that Delp's "high

stress, high exertion job played a role in his heart attack by

possibly precipitating the heart attack due to stress."

     Dr. Stuart F. Seides, cardiologist, reviewed Delp's medical

records and opined on June 2, 1997 that his heart disease could

not reasonably be attributed to his employment.   Dr. Michael L.

Hess, cardiologist, also read the medical records and concluded

on June 5, 1997 that Delp's heart disease, and his myocardial

infarction, resulted from multiple risk factors, not job-related

stress.

               The weight to be given the evidence,
          the credibility of witnesses, and the
          resolution of conflicting medical evidence
          are matters solely for the commission to
          decide. "[A] finding by the Commission upon
          conflicting facts . . . is conclusive and
          binding . . ., absent fraud, when such
          determination is supported by competent,
          credible evidence." "On review, we
          determine whether the evidence was
          sufficient to support the finding of fact
          reached by the Commission, not whether the
          evidence was sufficient to have supported a
          contrary finding."

City of Portsmouth Sheriff's Dep't v. Clark, 30 Va. App. 545,

553, 518 S.E.2d 342, 346 (1999) (citations omitted).

     Delp argues that employer failed to show, by a

preponderance of the evidence, that there was no work-related




                              - 5 -
cause of Delp's heart condition. 2   In support of his argument,

Delp relies on an unpublished decision of this Court in which we

held 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.

However, Delp fails to recognize that there is simply no

authority requiring an employer to affirmatively exclude

job-related factors as potentially contributing to or causing

the disease.   In fact, our Supreme Court reiterated its holding

to this effect in Bass stating, "in the context of our holding

[in Augusta County Sheriff's Dep't v Overbey, 254 Va. 522, 492

S.E.2d 631 (1997),] . . . an employer is not required to exclude

the possibility that job stress may have been a contributing

factor in the development of a claimant's heart disease."    Bass,

258 Va. at 113, 515 S.E.2d at 562 (emphasis in original).

     In this case, the commission found the following:

          Dr. Savage refused to link [Delp's]
          employment stress to his heart attack.
          While Dr. Savage could not exclude
          work-related stress as a contributing
          factor, he neither included it. . . . Dr.
          Irvin merely concluded that job stress could
          have led to the heart attack. Dr. Strain
          also referred . . . to the mere possibility
          that stress played a role in the heart

     2
       Delp concedes in his brief on appeal that employer
established the second prong of the Bass test. Namely, that
there was a "non-work-related cause of the disease." Therefore,
we do not address this issue further.

                               - 6 -
          attack. Neither Dr. Irvin or [sic] Dr.
          Strain implicated work-related stress as a
          probable contributing cause.

          On the other hand, Dr. Seides concluded that
          [Delp's] heart disease could not be
          reasonably attributed to his employment and
          Dr. Hess opined that the cardiac condition
          resulted from [Delp's] multiple risk
          factors, not job-related stress. We find
          the positive opinions of Drs. Seides and
          Hess to be persuasive. These opinions are
          essentially uncontradicted, as the other
          physicians merely raise the possibility that
          job stress is a contributing cause of
          [Delp's] disease.

          From this evidence, the employer has shown
          that work stress was not a probable cause of
          [Delp's] heart condition. Accordingly, we
          find that the employer has proven both parts
          of the Bass test and rebutted the
          presumption.

     As the commission correctly noted, none of the medical

evidence presented, even by Delp's own physicians, affirmatively

related his employment as a contributing factor or cause of his

heart condition.   Instead, the evidence spoke only in terms of

possibilities.   Thus, viewing the evidence in the light we must,

we cannot hold that the commission erred in finding that

employer met the requisite burden of proof to establish that

Delp's heart condition was not caused by his employment.

                                                           Affirmed.




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