                      COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Elder and Humphreys


AMHERST COUNTY SHERIFF'S OFFICE AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION
                                           MEMORANDUM OPINION* BY
v.   Record No. 2011-02-4                   JUDGE LARRY G. ELDER
                                                MARCH 4, 2003
ALVIN WAYNE GOODWIN


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

             (Michael A. Kernbach; Burgess, Kernbach &
             Perigard, PLLC, on brief), for appellee.
             Appellee submitting on brief.


     On appeal after remand by this Court, see Goodwin v.

Amherst County Sheriff's Office, No. 0810-01-4 (Va. Ct. App.

Jan. 29, 2002), the Amherst County Sheriff's Office and Virginia

Municipal Group Self-Insurance Association (employer) appeal

from a decision of the Workers' Compensation Commission (the

commission) awarding benefits to Alvin Wayne Goodwin (claimant)

for occupational heart disease.     In the present appeal, employer

asserts the commission erroneously rejected the testimony of

claimant's treating physician as conflicting with the

presumption in Code § 65.2-402 that heart disease in law


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
enforcement personnel is occupational and, thus, erroneously

concluded that employer failed to rebut the presumption.

     We hold employer's claims are barred in part by the law of

the case, as determined in the prior appeal to this Court.

Further, we hold credible evidence in the record supports the

commission's conclusion that employer failed to rebut the

presumption.   Thus, we affirm.

                                  I.

                             ANALYSIS

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

          Hypertension or heart disease causing the
          death of, or any health condition or
          impairment resulting in total or partial
          disability of . . . 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.

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
                             - 2 -
          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 appeal from this
          determination, the reviewing court must
          assess whether there is credible evidence to
          support the Commission's award.

Id. at 114, 515 S.E.2d at 563.

     "[E]vidence that merely rebuts generally the underlying

premise of the statute, which establishes a causal link between

stress and heart disease, is not probative for purposes of

overcoming the presumption [that the heart disease is

occupational]."   Medlin v. County of Henrico Police, 34 Va. App.

396, 407, 542 S.E.2d 33, 39 (2001) [hereinafter Medlin I].

"[T]he employer can rebut the Code § 65.2-402 presumption

without attacking the underlying legitimacy of the presumption

itself," id. at 407 n.5, 542 S.E.2d at 39 n.5, but "the employer

may not, in effect, 'repeal' the statute 'by [providing evidence

from a] doctor whose beliefs preclude its possible

application,'" id. at 407, 542 S.E.2d at 38 (quoting Stephens v.

Workmen's Comp. Appeals Bd., 20 Cal. App. 3d 461, 467 (Cal. Ct.

App. 1971)).

                                 A.

EVIDENCE FROM TREATING PHYSICIAN GENERALLY REBUTTING PRESUMPTION

     Employer contends a panel of this Court, in deciding the

previous appeal in this matter, erred in applying Medlin I's

prohibition against the use of general evidence denying proof of
                             - 3 -
a link between stress and heart disease to the opinion of a

treating physician.   It argues that Medlin I applies only to the

opinions of experts hired by the parties for the purpose of

expressing an opinion in existing litigation.

     We hold the doctrine of the law of the case precludes our

consideration of that issue in this appeal.   "The law of the

case doctrine provides that 'where there have been two appeals

in the same case, between the same parties, and the facts are

the same, nothing decided in the first appeal can be re-examined

on a second appeal.'"    County of Henrico Police v. Medlin, 37

Va. App. 756, 763, 561 S.E.2d 60, 63 (2002) (quoting Uninsured

Employer's Fund v. Thrush, 255 Va. 14, 18, 496 S.E.2d 57, 58-59

(1998)).   As employer makes clear on brief, the issue of whether

Medlin I applies to the opinion of a treating physician was

decided adversely to it in the previous appeal of this matter.

Thus, we are not at liberty to revisit that issue in this

subsequent appeal.

                                 B.

           SUFFICIENCY OF EVIDENCE TO SUPPORT COMMISSION'S
              REJECTION OF TREATING PHYSICIAN'S OPINION

     Employer argues next that the commission erroneously

rejected all of the opinion testimony of Dr. Thomas W. Nygaard,

claimant's treating physician, as lacking probative value under




                               - 4 -
Medlin I. 1    It contends Dr. Nygaard's testimony constituted a

"conce[ssion] that job stress can potentially be a minor factor

in the development of heart disease, but just not in this case."

We disagree and hold that credible evidence in the record

supports the commission's construction of Dr. Nygaard's

testimony.

     Under settled principles,

              [t]he 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." Wagner Enters., Inc.
              v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
              32, 35 (1991). "This rule applies when an
              expert's opinion contains internal
              conflict." Greif Companies/Genesco, Inc. v.
              Hensley, 22 Va. App. 546, 552, 471 S.E.2d
              803, 806 (1996).

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

S.E.2d 372, 375 (2001) (citation omitted).     Applying these

principles in Etter, we concluded as follows:

              Although some of [the treating 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.

Id. at 444, 552 S.E.2d at 375.


     1
       Employer does not contest the commission's rejection of
the opinions of Drs. Michael L. Hess and Stuart F. Seides on the
same grounds.

                                 - 5 -
     Similarly, in claimant's case, Dr. Nygaard's statements

were arguably in conflict.   In a 1995 letter, Dr. Nygaard stated

that "stress related to [claimant's] work situation [was] . . .

a secondary cause" of his heart disease.   However, in a

subsequent deposition, Dr. Nygaard testified, "I would have to

say that it is not known that job stress has any relation to

development of coronary artery disease. . . .   Period."   He also

said that he was "not aware that being a law enforcement officer

causes coronary heart disease," testified that he was able "to

exclude [claimant's] employment as a cause of his heart

disease," and implied that he did not need to know what

claimant's job duties were in order to do so because "I don't

think there is any employment that I know of that I can say

caused someone's heart disease."   As the commission noted, when

Dr. Nygaard was asked whether these statements were inconsistent

with his 1995 opinion, Dr. Nygaard "stood by" his earlier

opinion, "asserting that in older literature stress 'has been [a

secondary risk factor], and it's controversial whether stress

and personality type actually has an effect or correlation with

coronary artery disease.'"

     In light of these arguably conflicting statements, the

commission was entitled to conclude Dr. Nygaard's opinion was

that no medical evidence establishes that job stress causes or




                              - 6 -
contributes to the development of heart disease. 2   Thus, credible

evidence in the record supported the commission's conclusion,

under Medlin I, that Dr. Nygaard's opinion was not probative on

the issue of whether claimant's work as a deputy sheriff was a

cause of his heart disease. 3

                                C.

         SUFFICIENCY OF EVIDENCE TO REBUT THE PRESUMPTION

     Claimant established his entitlement to the Code § 65.2-402

presumption.   In order to rebut the presumption, employer was

required to "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,

258 Va. at 112, 515 S.E.2d at 561-62.   The only evidence

employer offered to prove the first prong of this test came from

Drs. Nygaard, Michael L. Hess and Stuart F. Seides.    As

discussed above, however, under Medlin I, the commission was



     2
       Under no construction of the evidence did Dr. Nygaard
opine, as employer asserts, that stress can cause or contribute
to heart disease but did not cause or contribute to claimant's
heart disease. Under the alternate construction of
Dr. Nygaard's opinion, the one apparently rejected by the
commission, claimant's job stress was a cause of claimant's
heart disease, albeit a secondary rather than primary one.
     3
       Our holding in Delp v. City of Galax Police, No. 1393-00-3
(Va. Ct. App. Feb. 27, 2001), cited by appellant, does not
require a different result. Delp was unpublished and carries no
precedential value. See, e.g., Fairfax County Sch. Bd. v. Rose,
29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999) (en
banc). Further, Delp is factually and legally distinguishable
from claimant's case.
                             - 7 -
justified in finding that the opinions of these physicians were

not probative of the issue because all opined that no scientific

link exists between occupational stress and heart disease.

Thus, employer was unable to meet its burden of proving prong

one of the Bass test, and we need not consider whether the

evidence was sufficient to prove the second prong in order to

conclude that employer has failed to rebut Code § 65.2-402's

presumption that claimant's heart disease is occupational.

                                II.

     For these reasons, we hold employer's claims are barred in

part by the law of the case, as determined in the prior appeal

to this Court.   Further, we hold credible evidence in the record

supports the commission's conclusion that employer failed to

rebut the presumption.   Thus, we affirm the commission's award

of benefits.

                                                         Affirmed.




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