                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia


FINCH WESTON DUFFY

v.   Record No. 0945-95-4

COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF STATE POLICE

THOMAS MORTIMER GALLOWAY
                                             OPINION BY
v.   Record No. 0978-95-4            JUDGE ROSEMARIE ANNUNZIATA
                                           APRIL 9, 1996
COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF STATE POLICE

WESLEY JAMES HUDSON

v.   Record No. 0938-95-4

COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF STATE POLICE


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael A. Kernbach (Jack T. Burgess; Jack T.
          Burgess & Associates, P.C., on briefs), for
          appellants.

          Peter R. Messitt, Senior Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General; Catherine S. Hammond, Deputy
          Attorney General; Gregory E. Lucyk, Senior
          Assistant Attorney General; James P. Wheeler,
          Assistant Attorney General, on briefs), for
          appellee.
          Amicus Curiae: Fraternal Order of Police,
          Virginia State Lodge (Malcolm Parks, III;
          Susan Elaine Sieger; Maloney, Barr &
          Huennekens, on briefs), for appellants.



     The deputy commissioner awarded wage and medical benefits to

Finch Weston Duffy, Thomas Mortimer Galloway, and Wesley James
Hudson (collectively "claimants"), concluding that employer,

Commonwealth of Virginia/Department of State Police ("employer"),

failed to rebut the presumption provided claimants by Code

§ 65.2-402.   The full commission reversed, concluding that

employer was not required to exclude work-related stress as a

contributing factor to the development of claimants' heart

diseases.   We disagree and reverse.

                             BACKGROUND
     The evidence in each case was substantially the same and

established the following common facts.    In each case, employer

did not dispute that the claimant, having satisfied the necessary

predicates, was entitled to the presumption provided by Code

§ 65.2-402(B). 1   Each claimant testified regarding the stress

associated with his work as a state trooper.    Prior to their

heart attacks, all three claimants had been smokers, and each had

a medical history that included one or more of the following

conditions: (1) hypertension; (2) high cholesterol; (3) family

history of heart disease; (4) diabetes; and (5) obesity.

     1
            Code § 65.2-402(B) provides, in part, that

            [h]ypertension or heart disease causing . . .
            any health condition or impairment resulting
            in total or partial disability of . . . (ii)
            members of the State Police Officers'
            Retirement System, . . . 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.




                                - 2 -
     Dr. Richard A. Schwartz testified by deposition for each

claimant.   According to Dr. Schwartz, who first addressed the

issues generally, the most relevant inquiry with regard to heart

disease is identification of the factors that accelerate the

process.    Dr. Schwartz stated that multiple factors correlate to

the development of coronary artery disease and that there is no

single etiologic cause.   He described the following, generally

accepted, correlative factors: (1) cholesterol; (2) smoking; (3)

stress; (4) blood pressure; (5) inactivity; and (6) intercurrent

diseases such as diabetes.   Dr. Schwartz assigned equal

contributive weight to each of the factors but noted that the

presence of any, or all, of the factors would not necessarily

produce heart disease.    For this reason, Dr. Schwartz testified

that the factors can only be considered correlative, not causal.

Moreover, when a patient exhibits more than one factor, it is

impossible to isolate any single factor and apportion it greater

contributive weight.   Dr. Schwartz further testified that smoking

does not cause heart disease.   Rather, according to Dr. Schwartz,

the generally accepted opinion is that smoking only correlates

with heart disease.
     Dr. Schwartz's testimony with respect to each claimant was

based on his review of the medical records and his examination of

the claimant.   Dr. Schwartz identified a combination of risk

factors contributing to each claimant's condition.   In each case,

job stress was identified as one contributing risk factor,




                                - 3 -
together with at least one of the following factors: (1)

hypertension; (2) smoking; and (3) diabetes.   Dr. Schwartz

testified that job stress correlates with the disease process as

do the other factors, and he could not isolate the effect of a

claimant's job stress relative to any of the other factors.

While Dr. Schwartz identified the specific risk factors which, in

his opinion, contributed to the heart disease in each claimant's

case, he was unable to say what actually caused it.

     At employer's request, Dr. Robert M. Bennett reviewed

claimants' medical records.   However, Dr. Bennett did not conduct

a physical examination of claimants.   Dr. Bennett testified

generally that the following are the major risk factors

associated with the development of coronary atherosclerosis: (1)

family history; (2) hypertension; (3) diabetes; (4) smoking; and

(5) cholesterol.   Dr. Bennett testified that job stress is also a

risk factor but not a major one.   Dr. Bennett identified a

combination of factors specifically contributing to each

claimant's heart disease, including in each case at least three

of the following: (1) high cholesterol; (2) smoking; (3)

hypertension; (4) family history; and (5) diabetes.

     In Duffy's case, Dr. Bennett testified that smoking and

cholesterol caused Duffy's heart disease.   However, Dr. Bennett

continually referred to these risk factors as contributing or

correlating to the development of Duffy's heart disease.   In

Galloway's case, Dr. Bennett testified that Galloway's heart



                               - 4 -
disease was caused by smoking, cholesterol, and family history.

However, he later admitted that he could not determine which

factor actually caused Galloway's condition and that the factors

could only be considered correlative.   In Hudson's case, Dr.

Bennett did not testify that the risk factors Hudson exhibited

caused his heart disease.   Rather, he referred to the risk

factors as contributors and described a person who exhibited such

risk factors as more likely to develop heart disease.   Although

Dr. Bennett maintained that smoking causes heart disease, he

admitted that not all smokers develop heart disease.
     Dr. Bennett testified that each claimant would have

developed heart disease even had he not been a police officer.

However, he had not reviewed their job descriptions.    For that

reason, he could not address the extent to which job stress

contributed to the development of claimants' heart diseases.

Furthermore, Dr. Bennett could not exclude job stress as a factor

contributing to the development of each claimant's heart disease.

     In each case, both the deputy commissioner and the full

commission found that employer's evidence failed to exclude

work-related stress as a contributing factor to the development

of claimants' heart diseases.   The parties do not dispute that

finding.   The full commission reversed the deputy commissioner's

awards, concluding that employer was not required to exclude

work-related stress to rebut the presumption.   The commission's

determination of this question is one of law and not binding on




                                - 5 -
appeal.     See, e.g., City of Waynesboro v. Harter, 1 Va. App. 265,

269, 337 S.E.2d 901, 903 (1985).

                               ANALYSIS

     The purpose of the presumption provided by Code

§ 65.2-401(B) is to establish a causal connection between, inter

alia,     disability from heart disease and the occupation of a

state trooper.     Page v. City of Richmond, 218 Va. 844, 847, 241

S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App.

424, 426, 424 S.E.2d 243, 244-45 (1992).    The presumption of

causation provided by Code § 65.2-402(B) is "overcome by a

preponderance of evidence to the contrary," and, "[i]n the

absence of competent evidence to the contrary, the statutory

presumption controls and the claimant prevails."     Lillard, 15 Va.

App. at 426, 424 S.E.2d at 245. The law is well settled that
          [i]n order to rebut the presumption, it is
          not sufficient that the employer merely
          adduce evidence that the heart disease was
          not caused by the employment; the employer
          must establish by competent medical evidence
          a non-work-related cause to rebut or overcome
          the statutory presumption that causation
          exists.

Fairfax Co. Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033,

1036-37, 421 S.E.2d 668, 670-71 (1992) (citing Virginia Dep't of

State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307,

308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777.

The issue here is whether the employer must establish a

non-work-related cause to the exclusion of work-related factors.

     In Mitchell, this Court held that where the employer's



                                 - 6 -
"rebuttal evidence fail[s] to exclude a work-related factor as a

cause of the heart disease, the finding of the commission that

the employer failed to rebut the presumption in claimant's favor

is conclusive and binding on appeal."   Mitchell, 14 Va. App. at

1034, 421 S.E.2d at 669; see also Talbert, 1 Va. App. at 253, 337

S.E.2d at 308; County of Amherst v. Brockman, 224 Va. 391, 399,

297 S.E.2d 805, 809-10 (1982) (commission's award affirmed if

rebuttal evidence does not exclude stress as possible

"contributing cause").   Here, employer presented significant

evidence of non-work-related factors which may have contributed

to the claimants' conditions, but it did not exclude the

claimants' work as a contributing factor.
     Employer argues, and the commission concluded, that Mitchell

does not require the employer to exclude work-related factors to

rebut the presumption.   Rather, employer contends Mitchell

establishes a rule of appellate review; viz, that the Court of

Appeals cannot reverse an award where the employer fails to

exclude work as a contributing factor to the claimant's

condition.

     However, the rule the commission applied in this case and

which employer urges we should affirm, ignores and conflicts with

other well established principles governing the proof of

causation in workers' compensation cases.   We can identify no

decision or policy which would warrant excluding the application

of these principles here.



                               - 7 -
     In proving causation in a workers' compensation case where

the evidence demonstrates two or more potential causative

factors, one of two conclusions follows.       Either, a combination

of factors contributed to cause the disability; or, one of the

factors caused the disability to the exclusion of the others.

     The "two causes rule" addresses those cases "where a

disability has two causes: one related to the employment and one

unrelated."     Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28, 294

S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222
Va. 30, 32, 278 S.E.2d 801, 803 (1981)); see also Shelton v.

Ennis Business Forms, 1 Va. App. 53, 55, 334 S.E.2d 297, 299

(1985).   Under the two causes rule, "full benefits [are] allowed

when it is shown that `the employment is a contributing factor.'"

 Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergman, 222

Va. at 32, 278 S.E.2d at 803); see also Shelton, 1 Va. App. at

55, 334 S.E.2d at 299.    The "more probable than not rule,"

addresses those cases where only one of a number of possible

factors caused the disability.     See id.    Under the more probable

than not rule, for the disability to be compensable, it must be

more probable than not that it was caused by the work-related

factor.   Id.   That is, a preponderance of evidence must show that

work was the cause of the disability.        Id.

     As in Smith and Bergmann, the evidence in this case proved

that a number of factors contributed to the development of

claimants' conditions.    Under the "two causes" rule, causation,



                                 - 8 -
and therefore compensability, is established when it is shown

that work contributed to the disability.   For this reason, we

hold that in a case where the evidence demonstrates that multiple

factors, including job stress, contributed to the development of

a police officer's heart disease, the employer must exclude

work-related stress as a contributing factor to rebut the

presumption of causation.

     Here, both the deputy commissioner and the full commission

found that employer's evidence failed to exclude job stress as a

contributing factor.   Cf. Doss v. Fairfax County Fire Dept., 229

Va. 440, 441-42, 331 S.E.2d 795, 795-96 (1985) (employer's

evidence established a non-work-related cause to the exclusion of

work-related factors); Cook v. City of Waynesboro, 225 Va. 23,

28-30, 300 S.E.2d 746, 748-49 (1983) (same).

     Accordingly, the commission's decisions are reversed, and

the cases are remanded to the commission for entry of awards

consistent with this decision.
                                            Reversed and remanded.




                                 - 9 -
