                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia


COUNTY OF HENRICO POLICE
                                               OPINION BY
v.   Record No. 1891-01-2             JUDGE JERE M. H. WILLIS, JR.
                                             MARCH 26, 2002
JAMES ISAAC MEDLIN, JR.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

          Malcolm Parks (Maloney, Parks, Clarke &
          Nathanson, P.C., on brief), for appellee.


     The Henrico County Police Department ("employer") appeals a

decision of the Workers' Compensation Commission awarding James

Medlin, Jr. benefits for incapacitation resulting from

work-related heart disease.   The employer contends:   (1) that

our holding in Medlin v. County of Henrico Police, 34 Va. App.

396, 542 S.E.2d 33 (2001) (Medlin I), excluding from evidence

expert opinions that are inconsistent with the statutory

presumption set forth in Code § 65.2-402, is an incorrect

statement of the law; (2) that the commission exceeded its

authority and our remand instruction by re-examining the

evidence; (3) that the commission violated the law of the case

by reversing itself; and (4) that the preponderance of credible
evidence overcame the Code § 65.2-402 presumption.      We affirm

the commission's decision.

                             I.   BACKGROUND

     On appeal, "[d]ecisions of the commission as to questions

of fact, if supported by credible evidence, are conclusive and

binding on this Court."      Manassas Ice & Fuel Co. v. Farrar, 13

Va. App. 227, 229, 409 S.E.2d 824, 826 (1991) (citing Code

§ 65.1-98; McCaskey v. Patrick Henry Hosp., 225 Va. 413, 415,

304 S.E.2d 1, 2 (1983)). 1    "The fact that contrary evidence may

be found in the record is of no consequence if credible evidence

supports the commission's finding."       Id. (citing Russell

Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826

(1986)).   We view the evidence in the light most favorable to

the party prevailing below.       Creedle Sales Co. v. Edmonds, 24

Va. App. 24, 26, 480 S.E.2d 123, 124 (1997).

                             A.   THE INJURY

     On or about May 2, 1997, Medlin, a fifty-three-year-old

police officer with the Henrico County Police Department, began

experiencing tightness in his chest and shortness of breath.         He

consulted his family physician, who ordered a cardiac stress

test and then referred him to a cardiologist.      Significant

coronary artery blockages were found and on May 5, 1997, Medlin

underwent three-vessel coronary artery bypass surgery.      He was


     1
       Code § 65.1-98 was recodified in 1991.      The present
provision can be found at Code § 65.2-706.
                              - 2 -
incapacitated from May 2, 1997 until January 21, 1998, when he

returned to work.

     In 1976, Medlin underwent a required department physical

examination which established that at that time he was free of

heart disease or hypertension.    However, his medical background

showed a history of elevated cholesterol and hypertension, and a

family history of premature heart disease.

                      B.   PROCEDURAL HISTORY

     On July 16, 1998, a deputy commissioner awarded Medlin

benefits under the Workers' Compensation Act.   The employer

sought review and on April 7, 2000, the full commission reversed

the deputy's award.   Medlin appealed the commission's decision

to this Court.

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

          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.

Medlin contended that the foregoing presumption was unrefuted

and carried his burden of proof.    The employer contended that

the presumption was rebutted by competent evidence.    It cited

the testimony of Dr. Michael Hess that, as a general matter, no

link exists between stress and heart disease.   Specifically,

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Dr. Hess testified, "[t]here is no evidence in the literature

that stress or work-related factors play any primary cause in

the development of coronary artery disease.       Further there is

absolutely no evidence that employment as a police officer is a

factor in causing the coronary artery disease."

     Holding that medical opinion that merely contradicted the

Code § 65.2-402(B) presumption generally lacked probative value

to overcome the presumption and should be rejected, we reversed

the commission's decision and remanded the case with direction

to reconsider the evidence in the light of our ruling.        See

Medlin I, 34 Va. App. at 407-08, 542 S.E.2d at 39.       On June 25,

2001, the commission reversed its earlier denial of Medlin's

claim, holding that the evidence failed to overcome the

presumption.   The employer appeals that decision.

                            II.   ANALYSIS

                            A.    MEDLIN I

     The employer first contends that our holding in Medlin I

erroneously mandates the complete exclusion of all expert

testimony and opinion that is inconsistent with the Code

§ 65.2-402 presumption.   Based upon this misreading, the

employer asks us to reverse Medlin I.        We decline the

invitation.    See Johnson v. Commonwealth, 252 Va. 425, 430, 478

S.E.2d 539, 541 (1996).

          The obligation to follow precedent begins
          with necessity, and a contrary necessity
          marks its outer limit. . . . [W]e recognize
                              - 4 -
             that no judicial system could do society's
             work if it eyed each issue afresh in every
             case that raised it. See B. Cardozo, The
             Nature of the Judicial Process 149 (1921).
             Indeed, the very concept of the rule of law
             underlying our own Constitution requires
             such continuity over time that a respect for
             precedent is, by definition, indispensable.
             See Powell, Stare Decisis and Judicial
             Restraint, 1991 Journal of Supreme Court
             History 13, 16.

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 854

(1992).   The doctrine of stare decisis carries such persuasive

force that a departure from precedent requires support by some

special justification.     United States v. International Business

Machines Corp., 517 U.S. 843, 856 (1996).     The employer's

misinterpretation of Medlin I's holding warrants no such

departure.

     The employer argues that Medlin I requires exclusion of

expert testimony and opinion that is inconsistent with the Code

§ 65.2-402 presumption.    That contention misreads Medlin I.

Medlin I holds only that "evidence that merely rebuts generally

the underlying premise of the statute, which establishes a

causal link between stress and heart disease, is not probative

evidence for the purposes of overcoming the presumption."

Medlin I, 34 Va. App. at 407, 542 S.E.2d at 39 (emphasis added).

Under this holding, expert opinion that merely discounts the

presumption is non-probative and irrelevant to refute the

presumption.    To refute the presumption, evidence must deny that

work was a cause or risk factor of the claimant's heart disease,
                                 - 5 -
see Bristol City Fire Dep't and Virginia Mun. Group Self-Ins.

Ass'n v. Maine, 35 Va. App. 109, 117, 542 S.E.2d 822, 826

(2001), and must attribute the claimant's heart disease to a

specific, non-work-related cause.

     In this case, Dr. Hess's expert opinion lacked such

probative value.   He testified that "[t]here is no data that

emotional stressors contribute[d] to the development of

[Medlin's] significant disease, which was very significant."     He

testified further, "there is no evidence in the literature that

stress or work-related factors play any primary cause in the

development of coronary artery disease."     Because this testimony

was nothing more than a general attempt to refute the statutory

presumption, it lacked probative value to overcome the

presumption.

       B.    THE COMMISSION'S RE-EXAMINATION OF THE EVIDENCE

     The employer next contends that the commission exceeded its

authority by re-examining the evidence on remand.     Our direction

in Medlin I refutes this argument.      Holding that the commission

erred in relying on Dr. Hess's testimony, we gave the following

instruction:

            Because the weight the commission assigned
            to Dr. Hess's . . . opinions in reaching its
            decisions is unclear, we remand . . . to the
            commission to determine whether the employer
            has sufficiently rebutted the presumption in
            light of the remaining probative evidence
            . . . .

Medlin I, 34 Va. App. at 408, 542 S.E.2d at 39.
                                - 6 -
       Thus, we instructed the commission to determine, based on

the remaining probative evidence, whether the employer had

sufficiently rebutted the statutory presumption.      This required

a re-examination of the remaining evidence.      The commission did

as we instructed and did not exceed its authority.

                  C.   VIOLATION OF THE LAW OF THE CASE

       The law of the case doctrine provides that "[w]here there

have been two appeals in the same case, between the same

parties, and the facts are the same, nothing decided on the

first appeal can be re-examined on a second appeal."      Uninsured

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

(1998).   This doctrine does not apply to the case before us.      No

determinations from the first case carried forward to this case.

The commission's original factual determinations were not

addressed in Medlin I.      The case was remanded because those

factual determinations were based on an erroneous application of

law.   Thus, the law of the case doctrine does not apply.

             D.   CREDIBLE EVIDENCE AS TO QUESTIONS OF FACT

       The employer asks us to reverse the commission's finding

that the Code § 65.2-402(B) presumption was not rebutted.     We

will not.

       Medlin was free of heart disease and hypertension when he

began working for the Henrico County Police Department in 1976.

Expert testimony that his May 2, 1997 attack and his heart

disease were stress-related supports the presumption and the
                              - 7 -
commission's decision to award him benefits.   "Decisions of the

commission as to questions of fact, if supported by credible

evidence, are conclusive and binding on this Court."    Manassas

Ice, 13 Va. App. at 229, 409 S.E.2d at 826.    "The fact that

contrary evidence may be found in the record is of no

consequence if credible evidence supports the commission's

finding."   Id.

     The decision of the commission is affirmed.

                                                         Affirmed.




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