                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia


ALVIN WAYNE GOODWIN
                                           MEMORANDUM OPINION* BY
v.   Record No. 0810-01-4                 JUDGE ROBERT J. HUMPHREYS
                                              JANUARY 29, 2002
AMHERST COUNTY SHERIFF'S OFFICE AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

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


     Alvin Wayne Goodwin appeals a decision of the Workers'

Compensation Commission denying his claim for temporary total

disability benefits from July 10, 1995 through October 15, 1995,

and continuing medical benefits pursuant to Code § 65.2-402(B).

Goodwin contends that the commission erred in finding that

Amherst County Sheriff's Office and Virginia Municipal Group

Self-Insurance Association ("employer") rebutted the presumption

that his heart disease was causally related to his job.     For the

reasons that follow, we reverse and remand.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Goodwin filed his claim for benefits on March 26, 1996,

after having been hospitalized for chest pain and tightness on

July 9, 1995, and undergoing double coronary bypass surgery on

July 13, 1995.   After a hearing on the matter, the deputy

commissioner determined that Goodwin was entitled to the

presumption pursuant to Code § 65.2-402, as he established that

his coronary artery disease was causally related to his

employment as a deputy sheriff.   Nevertheless, the deputy

commissioner then concluded that employer had rebutted the

presumption by presenting "competent medical evidence of a

non-work-related cause of [Goodwin's] heart disease," and

"excluded, by a preponderance of the evidence, work-related

causes of [Goodwin's] heart disease."   In reaching this

conclusion, the deputy commissioner relied upon the opinion of

Dr. Thomas W. Nygaard, Goodwin's treating physician, as well as

the expert opinions of Drs. Michael L. Hess and Stuart Seides.

The deputy commissioner found that Dr. Nygaard's testimony

raised only a speculative relationship between Goodwin's work

and his disease and that Dr. Richard A. Schwartz's expert

testimony was unpersuasive because he could not testify as to

the cause of Goodwin's disease and simply identified multiple

risk factors, including Goodwin's work.

     On appeal, the full commission, with one dissent, affirmed

the decision of the deputy commissioner, finding "the medical

evidence . . . establish[ed] non-work-related causes of
                            - 2 -
[Goodwin's] disease, and that [Goodwin's] disease was not caused

by his employment."   In so finding, the commission relied

heavily on Dr. Nygaard's testimony, as Goodwin's treating

physician, and gave little weight to the opinion of

Dr. Schwartz, finding that Dr. Schwartz spoke primarily in terms

of stress as a "risk factor" in Goodwin's development of heart

disease, as opposed to a cause or contributing factor.    The

commission found Drs. Hess' and Seides' opinions persuasive, "to

the extent they support[ed] the conclusions of a treating

physician, Dr. Nygaard."

     On appeal to this Court, Goodwin contends that the

commission erred in finding employer produced sufficient medical

evidence to rebut the statutory presumption contained in Code

§ 65.2-402.

     At the time Goodwin filed his claim for benefits, the

relevant provisions of Code § 65.2-402 read as follows:

          § 65.2-402. Presumption as to death or
          disability from respiratory disease,
          hypertension or heart disease, cancer.

          *      *         *      *    *      *       *

          B. Hypertension or heart disease causing
          the death of, or any health condition or
          impairment resulting in total or partial
          disability of . . . (iv) sheriffs and 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.

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The Supreme Court of Virginia has explained that:

          [u]nder the statutory language, the employer
          may overcome the presumption by producing "a
          preponderance of competent evidence to the
          contrary." Code § 65.2-402(B). 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.

          *      *      *      *      *      *       *

          On appeal from this determination, the
          reviewing court must assess whether there is
          credible evidence to support the
          Commission's award. Thus, unlike the
          Commission, the reviewing court is not
          charged with determining anew whether the
          employer's evidence of causation should be
          accorded sufficient weight to constitute a
          preponderance of the evidence on that issue. 1

     As to the first prong of the test, Goodwin argues that

Dr. Schwartz "clearly implicated the role of occupational stress

as a major risk factor" and that Dr. Nygaard "could not exclude

its contribution to the disease process stating that it was a



     1
       Bass v. City of Richmond Police Department, 258 Va. 103,
114-15, 515 S.E.2d 557, 563-64 (1999) (internal citations
omitted).
                            - 4 -
secondary risk factor" in the development of Goodwin's heart

disease.    Goodwin also argues that under our decision in Medlin

v. County of Henrico Police, 2 "there simply does not exist any

medical evidence to establish [employer] has come anywhere close

to rebutting the statutory presumption pursuant to Code

§ 65.2-402."    We agree in part with Goodwin's contention.

     In his October 29, 1995 letter to Goodwin's counsel,

Dr. Nygaard stated that occupational stress was "a secondary

cause" of Goodwin's heart disease.    However, during his

September 4, 1996 deposition, Dr. Nygaard testified that he

could exclude Goodwin's employment as a cause of his heart

disease.    When confronted with the statement he made in the

October 1995 letter, he conceded that his opinion to this effect

was based on the idea that the cause and effect relationship

between occupational stress and coronary artery disease was

controversial.    Similarly, Drs. Hess and Seides testified that

there was no scientific merit in the theory that work as a law

enforcement officer would contribute to the development of

coronary artery disease.

     In finding that employer had rebutted the statutory

presumption, the commission relied heavily on the opinion of

Dr. Nygaard, as Goodwin's treating physician, in holding that

employer proved Goodwin's heart disease was not caused by "any



     2
         34 Va. App. 396, 542 S.E.2d 33 (2001).
                              - 5 -
job-related stress."   The commission further stated that it

relied upon the opinions of Drs. Hess and Seides "to the extent

that they support[ed] the conclusions of a treating physician,

Dr. Nygaard."

     In Medlin, an opinion released by this Court on February

27, 2001, the same day the commission issued its decision in

this case, we noted that:

          Code § 65.2-402 "has long been recognized as
          a remedial statute, enacted by the
          legislature to overcome the difficulty that
          a [police officer] would otherwise have in
          proving causation." City of Norfolk v.
          Lillard, 15 Va. App. 424, 430, 424 S.E.2d
          243, 247 (1992). In enacting the statute,
          "[t]he legislature knew that the causes
          of . . . cardiac diseases are unknown and
          that the medical community is split
          regarding the impact of stress and work
          environment on these diseases." Fairfax
          County Fire and Rescue Services v. Newman,
          222 Va. 535, 540, 281 S.E.2d 897, 900
          (1981). By enacting the statutory
          presumption, the General Assembly resolved
          the split in medical opinions in favor of
          the employee and adopted the presumption
          that the stress of working as a law
          enforcement officer causes or contributes to
          the development of heart disease. 3

Thus, we held that "evidence that merely rebuts generally the

underlying premise of the statute, which establishes a causal




     3
       Id. at 406-07, 542 S.E.2d at 38 (additional citations
omitted).
                            - 6 -
link between stress and heart disease, is not probative evidence

for purposes of overcoming the presumption." 4

     Contrary to employer's assertion otherwise, Medlin is a

correct statement of the law in Virginia.    Moreover, employer

incorrectly asserts that Medlin does not apply to treating

physicians.    Our decision in Medlin clearly precludes the

commission from relying on evidence from any source, whether a

treating physician or non-treating medical expert, which merely

serves to rebut the underlying premise of the statute.    However,

the decision does not bar the commission from considering those

portions of the expert testimony offered which do not attack the

premise of the statutory presumption, but instead offer evidence

concerning the patient and/or claimant at issue. 5    Finally, the

Medlin decision does not serve to bar employers from relying on

physicians who testify as to the most current and authoritative

medical findings. 6   First, as long as the current and

authoritative medical findings apply to the claimant and his/her

particular condition, physicians are free to rely on such

findings and testify accordingly.     Further, to the extent that



     4
         Id. at 407, 542 S.E.2d at 39.

     5
         Id.

     6
       In support of this argument, employer has attached an
article from the New England Journal of Medicine to its brief on
appeal. However, as this article was not presented as evidence
below, we do not consider it for purposes of appeal.
                              - 7 -
such findings generally negate the statutory presumption created

by the legislature, employers are free to seek an appropriate

remedy from the General Assembly.       In the meantime, it is the

role of this Court to interpret legislation, not to create or

change it by judicial fiat. 7    We therefore find that the

commission erred in relying on the opinions of Drs. Nygaard,

Seides and Hess, to the extent that they opined, in general,

that there is no scientific link between occupational stress and

heart disease.   Because the weight the commission assigned to

these portions of the medical opinions in reaching its decision

is unclear, we remand this matter to the commission to determine

whether employer has sufficiently rebutted the presumption in

light of the remaining probative evidence in this case. 8

     Because we remand this matter to the commission for

reconsideration of its decision in light of our holding in

Medlin, we do not address the remaining issues raised by

appellant.



     7
       See Dionne v. Southeast Foam Converting & Pkg., 240 Va.
297, 304, 397 S.E.2d 110, 114 (1990) ("Once the legislature has
acted, the role of the judiciary 'is the narrow one of
determining what [the legislature] meant by the words it used in
the statute.'" (quoting Diamond v. Chakrabarty, 447 U.S. 303,
318 (1980))).
     8
       See Virginia Dept. of State Police v. Talbert, 1 Va. App.
250, 253, 337 S.E.2d 307, 308 (1985) ("We do not review the
weight or preponderance of the evidence nor the credibility of
the witnesses, except to consider whether there exists
sufficient credible evidence to sustain the findings.").

                                - 8 -
     Accordingly, we reverse the decision of the commission and

remand.

                                           Reversed and remanded.




                           - 9 -
