                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Hodges
Argued at Salem, Virginia


WYTHEVILLE (TOWN OF) LAW ENFORCEMENT AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION
                                           MEMORANDUM OPINION* BY
v.   Record No. 2689-02-3                  JUDGE WILLIAM H. HODGES
                                                APRIL 8, 2003
JERRY EDWARD WHEELER


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Ralph L. Whitt, Jr. (Michael P. Del Bueno;
             Whitt & Associates, on briefs), for
             appellants.

             Ginger J. Largen (Morefield & Largen, P.L.C.,
             on brief), for appellee.


     Wytheville (Town of) Law Enforcement and its insurer

(hereinafter referred to as "employer") appeal a decision of the

Workers' Compensation Commission awarding temporary total

disability benefits and medical benefits to Jerry Edward Wheeler

(claimant) for an occupational disease, heart disease.       Employer

contends the commission erred in (1) finding that employer

failed to rebut the statutory presumption set forth in Code

§ 65.2-402; (2) finding that employer failed to prove a specific

non-work-related cause resulted in claimant's heart disease;


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(3) applying an incorrect legal standard by holding that

employer did not prove by a preponderance of the evidence "that

a specific, non-work related cause resulted in the claimant's

heart disease"; (4) finding that employer failed to prove that

claimant's employment was not a cause of his heart disease; (5)

applying an incorrect legal standard in concluding that employer

failed to prove that claimant's employment was not a cause of

his heart disease; (6) finding that the medical evidence from

Dr. Holly L. Smith, claimant's family physician, preponderated

in establishing that claimant's employment was a cause of his

heart disease; and (7) finding that the medical evidence from

Dr. Bruce L. Fariss, claimant's endocrinologist, preponderated

in establishing that the claimant's employment was a cause of

his heart disease.   For the following reasons, we affirm the

commission's decision.

     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 factual findings of the commission are
          conclusive and binding on appeal if
          supported by credible evidence in the
          record. "The fact that there is contrary
          evidence in the record is of no consequence
          if there is credible evidence to support the
          commission's finding." "This rule applies
          when an expert's opinion contains internal
          conflict." "Likewise, the [c]ommission's
          conclusions upon conflicting inferences,
          legitimately drawn from proven facts, are
          equally binding on appeal." "In determining
          whether credible evidence exists, the
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          appellate court does not retry the facts,
          reweigh the preponderance of the evidence,
          or make its own determination of the
          credibility of the witnesses."

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552

S.E.2d 372, 375 (2001) (citations omitted).

     Code § 65.2-402(B) provides in pertinent part as follows:

          Hypertension or heart disease causing . . .
          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.

     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, 258 Va. 103, 112, 515 S.E.2d 557, 561-62

(1999).

     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
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appeal from this determination, the reviewing court must assess

whether there is credible evidence to support the commission's

award.   Bass, 258 Va. at 114, 515 S.E.2d at 563.

     Although employer raised numerous "Questions Presented" in

its opening brief, the dispositive issue is whether employer

rebutted the first prong of the Bass test, that is, whether the

evidence preponderated in showing that claimant's work was not a

contributing cause of his heart disease.

     In ruling that the evidence did not preponderate to prove

that claimant's work was not a cause of the development of his

heart disease, the commission found as follows:

           Dr. Smith directly attributed the claimant's
           cardiac condition to his occupation. She
           advised on October 18, 2001, that the
           claimant's work schedule "significantly
           contributed to his cardiac disease,
           worsening of diabetic control, and blood
           pressure control, therefore increasing and
           accelerating his heart disease."
           Subsequently, Dr. Smith concluded that the
           claimant should not return to work to avoid
           accelerating his cardiac condition.
           Similarly, Dr. Fariss agreed that the
           claimant's swing-shift schedule hindered his
           ability to control his diabetes.

                Dr. Greenfield considered
           non-work-related risk factors to be the
           likely causes of the claimant's heart
           disease. However, he did not rule out the
           claimant's employment as a cause of his
           heart condition. Instead, Dr. Greenfield
           testified that he had no opinion on
           causation . . . .

     The opinions of Drs. Smith and Fariss, along with

Dr. Greenfield's refusal to render any definitive opinion as to
                              - 4 -
whether claimant's employment was a cause of his heart disease,

constitute credible evidence to support the commission's finding

that employer failed to show by a preponderance of the evidence

that claimant's work was not a cause of his heart disease.

Thus, because employer did not meet its burden under the first

prong of the Bass test, it failed to rebut the statutory

presumption contained in Code § 65.2-402(B).

     Employer argues that the commission took portions of

Dr. Greenfield's deposition testimony out of context and ignored

the balance of his testimony.    To the contrary, the commission

weighed Dr. Greenfield's testimony and concluded that he could

not rule out claimant's employment as a cause of his heart

disease.   "Although some of [the physician's] . . . statements

. . . may arguably conflict with each other, the commission, as

fact finder, was entitled to determine the weight, meaning, and

credibility to give his respective responses and statements and

to reconcile any possible conflicts therein."     Etter, 36

Va. App. at 445, 552 S.E.2d at 375.     In light of

Dr. Greenfield's arguably conflicting statements, the

commission, as fact finder, was entitled to conclude that he did

not render any opinion as to whether claimant's employment was a

contributing cause of his heart disease.    Thus, credible

evidence supports the commission's conclusion that

Dr. Greenfield's testimony was not sufficient to prove by a


                                - 5 -
preponderance of the evidence that claimant's employment was not

a cause of his heart disease.

     Employer also argues that the commission gave undue weight

to the opinions of Drs. Smith and Fariss in finding that

employer failed to establish by a preponderance of the evidence

that claimant's employment was not a contributing factor in the

development of his heart disease.   As fact finder, the

commission was entitled to weigh the medical evidence, and

determine what weight, if any, to assign to the physicians'

opinions.   The commission weighed the medical evidence, and

concluded that Dr. Smith directly attributed claimant's heart

condition to his employment and that Dr. Fariss agreed that

claimant's shift-work hindered his ability to control his

diabetes.   Credible evidence, including Dr. Smith's October 18,

2001 letter to claimant's counsel and Dr. Fariss's March 14,

2001 office notes, supports those commission findings, and they

will not be disturbed on appeal.

     Because we find that credible evidence supports the

commission's finding that employer failed to prove by a

preponderance of the evidence that claimant's employment was not

a contributing cause of his heart disease, we need not consider

whether the evidence was sufficient to prove the second prong of

the Bass test in order to conclude that employer has failed to

rebut Code § 65.2-402's presumption that claimant's heart

disease is occupational.   We find no merit in employer's
                              - 6 -
argument that the commission applied an incorrect legal standard

in rendering its decision.

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

                                                        Affirmed.




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