                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MARK S. ALLEN
                                                 MEMORANDUM OPINION *
v.   Record No. 0897-97-1                            PER CURIAM
                                                   AUGUST 26, 1997
CITY OF NORFOLK POLICE DEPARTMENT AND
 CITY OF NORFOLK, TRIGON
 ADMINISTRATORS, INC.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Karen M. Rye, on brief), for appellant.

           (Philip R. Trapani, City Attorney; André A.
           Foreman, Deputy City Attorney, on brief), for
           appellees.



     Mark S. Allen (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that he was

not entitled to the benefit of the presumption contained in Code

§ 65.2-402(B).   Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.       Rule

5A:27.

     Code § 65.2-402(B) provides that "hypertension or heart

disease . . . resulting in total or partial disability of [a city

police officer] . . . 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."    This presumption applies
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
only if
          persons entitled to invoke [it] have . . .
          undergone preemployment physical examinations
          that (i) were conducted prior to the making
          of any claims under this title that rely on
          [this] presumption[ ], (ii) were performed by
          physicians whose qualifications are as
          prescribed by the [employer], (iii) included
          such appropriate laboratory and other
          diagnostic studies as the [employer] may have
          prescribed, and (iv) found such persons free
          of . . . hypertension . . . or heart disease
          at the time of such examinations.


Code § 65.2-402(D).
     On appeal, we view the evidence in the light most favorable

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

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

     So viewed, the evidence established that in 1978, claimant

underwent a preemployment physical examination before beginning

employment with the City of Norfolk Police Department ("the

police department").   Dr. T. E. Smith of the Norfolk Public

Health Department performed the examination.   On November 28 and

30, and December 1, 1978, claimant's blood pressure was measured

in sitting, standing, and lying positions.   On December 15, 1978,

Dr. H. S. Wise noted that in all positions claimant's blood

pressure was "persistently hypertensive."    Dr. Wise referred

claimant to a cardiologist.   Dr. Wise concluded that based upon

the preemployment examination, claimant had "evidence of

persistent diastolic hypertension, ranging from moderate to

slight, and occasionally [had] systolic hypertension of a mild to

moderate degree . . . ."


                                 2
        On February 12, 1996, claimant suffered a silent inferior

myocardial infarction and a left ventricle aneurysm.    Following

claimant's heart attack, Dr. Thomas Klevan, claimant's

cardiologist, reported that claimant had a history of

hypertension.    In responding to an August 26, 1996 letter from

claimant's counsel, Dr. Klevan opined that claimant had

substantial exposure outside of his employment to risk factors,

including hypertension, elevated cholesterol, and a family

history of heart disease.    These factors contributed to the

development of claimant's heart disease.    Dr. Klevan could not

eliminate any of these risk factors from being a primary cause of

claimant's heart attack.
        In denying claimant's application, the commission found that

the presumption did not apply because the medical records

revealed that claimant suffered from hypertension prior to his

employment by the police department and that claimant's

hypertension contributed to the development of his heart disease,

which ultimately resulted in his heart attack on February 12,

1996.    Unless we can say as a matter of law that claimant's

evidence proved that he was free of hypertension prior to his

employment by the police department, the commission's findings

are binding and conclusive upon us.     See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

        The results of the preemployment examination performed by

Dr. Smith, a qualified physician, and the conclusions drawn from



                                   3
that examination by Dr. Wise, support the commission's finding

that claimant was not free of hypertension prior to his

employment by the police department.    In addition, Dr. Klevan's

opinion established that claimant's hypertension contributed to

the development of his heart disease.   Accordingly, we cannot say

as a matter of law that claimant met his burden of proving he was

entitled to the benefit of the presumption contained in Code

§ 65.2-402(B).
     For these reasons, we affirm the commission's decision.

                                                    Affirmed.




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