                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


CHARLES ELTON MURPHY
                                        MEMORANDUM OPINION* BY
v.   Record No. 1558-01-4               JUDGE NELSON T. OVERTON
                                            MARCH 12, 2002
COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF MOTOR VEHICLES


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael A. Kernbach (Burgess, Locklin,
          Kernbach & Perigard, PLLC, on brief), for
          appellant.

          Scott John Fitzgerald, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General; Judith Williams Jadgmann, Deputy
          Attorney General; Gregory E. Lucyk, Senior
          Assistant Attorney General, on brief), for
          appellee.


     On appeal from a decision of the Workers' Compensation

Commission (the commission) denying his application for

benefits, Charles Murphy contends:   (1) the evidence was

insufficient to support the commission's decision that the

presumption in Code § 65.2-402(B) did not apply under Murphy's

circumstances; and (2) the commission erred in holding that

Murphy was not a member of the State Police Officers Retirement

System (SPORS), pursuant to Code § 51.1-200, so as to trigger


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the presumption in Code § 65.2-402(B).   Finding no error, we

affirm the commission's decision.

                            BACKGROUND

     Murphy began employment with the Department of State Police

on May 1, 1969.   In 1991, he obtained the position of Director

of Investigations for the Department of Motor Vehicles (DMV).

On May 8, 1998, seven years after leaving the state police and

joining DMV, Murphy suffered a transient ischemic attack (TIA) 1

which disabled him from work.

     Murphy filed a claim with the commission on July 31, 1998,

alleging a stroke, TIA and hypertension as occupational diseases

for which he sought temporary total and temporary partial

disability benefits.

     On November 1, 1998, Murphy retired from DMV.   He began

receiving retirement benefits shortly thereafter.

     The deputy commissioner conducted an evidentiary hearing

(the first hearing) on October 18, 1999.

     On December 22, 1999, the deputy commissioner issued an

opinion concluding, inter alia, that Murphy was not a member of

SPORS at the time of his hypertension diagnosis and TIA and,

therefore, he was not entitled to the presumption in Code

§ 65.2-402(B).



     1
       Murphy's physician described a TIA as "a warning sign of a
stroke."

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        Murphy appealed, and on July 31, 2000, the commission

vacated the deputy's opinion.    It declared that the

"determinative issue in whether the presumption applies is

whether [Murphy] is a member of SPORS."    The commission conceded

it was at a "disadvantage in attempting to analyze the various

state pension programs," so it remanded "the case for evidence

directly from SPORS as to whether or not [Murphy] is a member."

        On October 6, 2000, the deputy commissioner conducted

another evidentiary hearing (the second hearing).    In his

October 27, 2000 opinion, the deputy relied on additional

evidence presented at the second hearing to hold that Murphy was

neither a member of SPORS while employed at DMV nor a SPORS

member at the time of his retirement from DMV.    He found the

testimony of one witness, Donna Blatecky, "very persuasive" and

relied on her expertise in finding that Murphy was not a member

of SPORS when he suffered his condition.

        Murphy appealed the deputy's decision to the full

commission.    In its June 5, 2001 opinion, the commission found

that Murphy "ceased being a member of SPORS when his former

employer stopped making contributions to his SPORS membership

account (June 1, 1991), and [Murphy] accepted employment with

DMV."    Thus, after June 1, 1991, Murphy was a member of the

Virginia Retirement System (VRS).    The commission also found

that, even if Murphy was a member of SPORS at the time so as to

entitle him to the presumption, the greater weight of the
                              - 3 -
evidence established that Murphy's condition was caused by

stress from his work at DMV rather than his former work with the

state police and the presumption was therefore rebutted.

                             ANALYSIS

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

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).     "The

commission's findings of fact will be upheld on appeal if they

are supported by credible evidence."     Uninsured Employer's Fund

v. Clark, 26 Va. App. 277, 280, 494 S.E.2d 474, 475 (1998).

     Code § 65.2-402(B) contains the presumption that Murphy

wanted the commission to apply to its disability determination.

That code section provides, in pertinent part, that

           any condition or impairment of health of
           . . . any member of the State Police
           Officers Retirement System, . . . caused by
           hypertension or heart disease, resulting in
           total or partial disability shall be
           presumed to be an occupational disease
           suffered in the line of duty that is covered
           by this act unless the contrary be shown by
           a preponderance of competent evidence.

Code § 65.2-402(B).

     Code § 51.1-125(B) provides that "[n]o person shall hold

more than one membership in the retirement system at any one

time with respect to any of the benefits provided under this

title.   Any person employed in more than one position resulting

in membership shall elect one position on which his membership

shall be based."
                                 - 4 -
     Code § 51.1-206 governs service retirement allowances for

members of SPORS.   Subsection (A) sets forth the formula for

establishing a member's "annual retirement allowance, payable

for life."   Subsection (B) provides that a retiree with at least

twenty years of service qualifies for a supplement, which

terminates at age sixty-five when the retiree would begin

receiving Social Security benefits.

     Blatecky testified at the second evidentiary hearing.      She

is Assistant Director for Benefit Programs and Services for the

VRS, and is "responsible for the departments that administer the

benefits under the Retirement System which include . . . all

retirements under all retirement plans sponsored by the Virginia

Retirement System."   Blatecky explained that SPORS is one of

four retirement plans administered by the VRS.   Blatecky

explained that "SPORS is a separate retirement system, has a

separate [higher] employer contribution rate . . . [that] is

different than that for other state agencies."

     After reviewing Murphy's records relating to VRS and SPORS,

Blatecky testified that Murphy was a member of SPORS from 1969

until the end of May 1991.   On June 1, 1991, Murphy "began to be

reported under the Department of Motor Vehicles."    While at DMV,

"he had an inactive record or inactive membership" with SPORS.

According to Blatecky, DMV employees are "not eligible to have

their employees [covered] under the SPORS system."   Blatecky

explained that, had Murphy been employed by the state police and
                              - 5 -
by DMV, Code § 51.1-125(B) would have required him to elect

either VRS or SPORS for his retirement coverage.   However,

Murphy did not have dual employment because VRS records showed

that DMV "began to pick up and contribute on [Murphy's] behalf

[to VRS] and [the] State Police no longer contributed for him

[through SPORS]."   Blatecky added that, by virtue of Murphy's

twenty-plus years as a state police officer, he had become

vested in SPORS' hazardous duty supplement; therefore, the

hazardous duty supplement, which Murphy has been receiving as a

vested SPORS member, is based on Murphy's service and

contributions from 1969 to 1991.   Blatecky explained there was

no break in service during the time Murphy left the state police

and joined DMV, but she noted a distinct change in 1991, at

which time DMV began making contributions toward Murphy's

retirement and the state police ceased making any contributions.

     By letter dated June 10, 1998, Dr. Jennifer Brown, Murphy's

treating physician, wrote that she has been treating Murphy for

stress-related hypertension.   Dr. Brown opined that "his work is

giving him undue stress and causing elevated blood pressure,"

for which he is "seeking a medical discharge."   Dr. Brown felt

"that this is certainly justified."

      The commission's factual findings are supported by

credible evidence, including Dr. Brown's medical opinion and

Blatecky's analysis of Murphy's employment records and records

of employer retirement contributions made on behalf of Murphy.
                              - 6 -
Based upon that evidence, the commission could reasonably

conclude that Murphy was no longer a member of SPORS after

June 1, 1991 and that his condition was caused by stress from

his duties at DMV, not from his previous work with the state

police.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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