                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, * Judges Elder and Annunziata
Argued at Richmond, Virginia


CITY OF RICHMOND POLICE
 DEPARTMENT
                                            OPINION BY
v.   Record No. 0657-97-2       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         DECEMBER 9, 1997
CLAUDE ASHLEY BASS, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Scott C. Ford (Charles F. Midkiff; Midkiff &
           Hiner, on brief), for appellant.

           Malcolm Parks (Maloney, Barr & Huennekens, on
           brief), for appellee.



     The City of Richmond Police Department ("employer") appeals

the Workers' Compensation Commission's decision awarding benefits

to Claude A. Bass, Jr. ("claimant").   Employer argues that the

commission erroneously:   (1) excluded claimant's testimony

regarding the relationship between work stress and his

hypertension; (2) found that his claim was not time-barred; (3)

found that claimant established the presence of coronary artery

disease and met his burden of proving a compensable occupational

disease; and (4) found that employer's evidence was insufficient

to rebut the statutory presumption of Code § 65.2-402.     For the

reasons that follow, we reverse.




     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
                          I.    BACKGROUND

     Claimant is a police captain who has been a member of the

Richmond Police Department since 1964.       During his tenure with

the department, claimant worked in the organized crime unit, the

detective division, and the narcotics squad.      His duties were

often dangerous, and he received numerous promotions and

decorations.

     In October 1994, while at home preparing supper, claimant

experienced "a strange sensation, and . . . in a gradual manner,

almost like a cloud drifting over, [he] lost sight in [his] eye."

The vision loss occurred in claimant's left eye and lasted for

approximately thirty minutes.
     Claimant went to see Dr. Mullen, his ophthalmologist, on

October 24, 1994.   After examining claimant, Dr. Mullen referred

him to Dr. Tulou, claimant's primary care physician.      On October

26, 1994, Dr. Tulou referred claimant to Retreat Hospital for

testing and to Dr. Davis, a vascular surgeon, for treatment.        The

doctors diagnosed an atherosclerotic blockage in claimant's

carotid artery which had reduced blood flow in his brain and

caused his episode of vision loss.    On November 10, 1994,

claimant was admitted to Retreat Hospital for surgery to correct

the blockage.   While he was hospitalized, claimant also had

surgery on a similar blockage in his iliac artery.      Claimant was

incapacitated until December 5, 1994, when he resumed his full

duties as a police officer.



                                  2
     On April 15, 1996, claimant filed a claim for benefits for

this injury.   On May 6, 1996, claimant's counsel filed an amended

application for a hearing, requesting compensation for lost wages

and payment of lifetime medical costs.

     It is undisputed that claimant has suffered from

hypertension, or high blood pressure, since the 1970s.   Claimant

stated that he had never missed any time from work due to his

hypertension prior to October 1994.   It is also uncontroverted

that claimant was a smoker who had been counseled over the years

about controlling his cholesterol and his weight.   Claimant

testified that, until October 1994, he had never been told that

he had heart disease, vascular disease, or atherosclerosis.    He

admitted that he had been told that he had high blood pressure;

however, he stated that the various doctors with whom he

discussed his high blood pressure did not indicate that his

condition was related to his work as a police officer.
     Dr. Tulou described claimant's condition as "atherosclerosis

with cholesterol deposits compromising [blood] flow."    Though "it

is certainly not exclusively a heart disease," there is "evidence

on the basis of a thallium scan of the heart that the tip thereof

is not receiving adequate blood."    Dr. Tulou gave conflicting

statements on the relationship between claimant's work and his

condition.   In a letter to claimant's attorney, Dr. Tulou had

"absolutely no reservation in stating that [claimant's] work as a

police officer in large measure contributed to his hypertension,"




                                 3
and claimant's "hypertension is clearly a risk factor for any

atherosclerotic process."   Therefore, Dr. Tulou felt that

claimant's "disability . . . was related to his work-related

hypertension."

     However, in a later deposition, Dr. Tulou stated that

whether claimant's hypertension and atherosclerosis were caused

by his work in any way was "a philosophical question.   Speaking

from a strictly scientific basis, no, not really. . . . I think

it remains speculative as to whether the job itself did it."

When questioned whether claimant's condition was caused by

stress, Dr. Tulou responded:   "I just can't make a definitive

statement one way or the other how that contributed. . . . In

this particular case, I don't feel strongly one way or the other

that it did or did not create his condition or contribute to his

condition."   Finally, when claimant's attorney queried whether,

in Dr. Tulou's opinion to a reasonable degree of medical

probability, claimant's work played a role in his hypertension,

Dr. Tulou answered:   "Plausibly a role, yes."
     Dr. Davis saw claimant on November 7, 1994, upon referral

from Dr. Tulou.    He diagnosed claimant with "atherosclerosis

which had become symptomatic in his left carotid and right

iliac."   He explained that "[a]therosclerosis . . . is a disease

of the arteries.   It can involve the arteries of the heart and

create heart attacks; although, [claimant] showed none of these

symptoms at the time of his care."    Regarding the relationship




                                  4
between claimant's condition, atherosclerosis, and his work, Dr.

Davis indicated that "[t]he probable cause of his condition is

genetic and environmental, and I cannot rule out work stress as a

contributor to his diagnosis."   He declined to comment on whether

claimant suffered from heart disease or whether claimant's work

as a police officer contributed to any such heart disease.

     Dr. Hess reviewed claimant's medical history and answered

employer's questions.   Dr. Hess offered a diagnosis of

"accelerated atherosclerotic cardiovascular disease" as a result

of "the hypertensive syndrome with a combination of hypertension,

cigarette smoking, and hypercholesterolemia."   Regarding the

source of claimant's disease, Dr. Hess stated that "there is no

identifiable organic cause for his hypertension, and this more

than likely represents a genetic predisposition in combination

with his risk factors."   As to the role of work stress in

claimant's condition, Dr. Hess indicated that "there is very

little objective proof that stress plays a major contributory

role."   Consequently, "from a medical viewpoint, it is extremely

difficult to incriminate the stress of command on a police

officer in giving him his present problems."
     Lastly, the record contains correspondence from Dr. Melhorn,

the doctor who diagnosed claimant's hypertension in the 1970s.

On July 15, 1996, Dr. Melhorn answered certain general questions

posed by employer.   He stated that he recalled treating claimant

in the 1970s; that it was his "normal practice to discuss any




                                 5
conditions which would require medication with a patient when

such a condition is discovered"; that he would typically discuss

with a patient the probable causes or contributing factors for

such a condition in order to help him avoid or reduce future

problems; that work-related stress "could be" a causal factor in

claimant's hypertension because "stress does play a part in

hypertension"; and that it was his normal practice to discuss the

stress factor with a patient.   Dr. Melhorn responded, "Yes -

probably" to the inquiry:   "Given that you knew he was a police

officer, that he had hypertension and needed medication for it,

do you believe that you most probably told the patient that work

related stress was a factor in his diagnosis of hypertension in

the 1970s?"
     However, on July 16, 1996, Dr. Melhorn wrote a letter to

claimant's counsel addressing his specific concerns regarding his

treatment of claimant and his earlier statements:
          I wish to state that I do not have the chart
          or records of my treatment of [claimant], and
          I do not have any independent recollection of
          having discussed with [claimant] the question
          of whether the hypertension with which I
          diagnosed in him [sic] years ago was related
          to his work.


     When questioned about his past treatment with Dr. Melhorn,

claimant testified as follows:
          I wouldn't stretch anybody's imagination to
          think that I could recall a conversation in
          the '70's, other than he stressed to me the
          seriousness of taking the [blood pressure]
          medicine and of going back to Dr. Gill to
          have him monitor and be sure in fact that it
          was a problem. As far as work, I can only



                                 6
          say that I have no recollection of him saying
          that it was work related, and if he had, I
          feel confident I would have followed up on
          that.


     The deputy commissioner awarded claimant compensation for

temporary total disability for the period November 10 through

December 4, 1995, together with related medical expenses.

     The commission affirmed the decision of the deputy

commissioner.   In doing so, it rejected "employer's argument that

the Deputy Commissioner erred in not permitting the claimant to

testify to his own opinion, as to whether stress was a factor in

causing his hypertension.   Inasmuch as this is strictly a medical

issue, his testimony as to stress being a cause of high blood

pressure would have no probative value."
     Next, the commission found that "there was insufficient

evidence of a communication or awareness of an occupational

disease more than two years before the filing of the Claim for

Benefits on April 15, 1996."   Thus, the commission rejected

employer's statute of limitations defense.

     The commission also determined that:    "the medical records

sufficiently establish the presence of coronary artery disease.

. . . There is no medical evidence to the contrary, and this

element of the claimant's case is clearly established."

Additionally, noting the statutory presumption, the commission

found "no evidence that the Deputy Commissioner failed to

consider [employer's] rebuttal medical evidence."   Rather, the

commission stated that "the rebuttal evidence was not persuasive



                                 7
and . . . claimant's evidence was sufficient to bring him within

the purview of the presumption."

     Finally, the commission found "no evidence that the Deputy

Commissioner failed to consider medical evidence from physicians

other than Dr. Tulou, regarding the treatment of the claimant's

hypertension."   Accordingly, the commission considered any

factual conflicts in the evidence and concluded that "all the

medical evidence was weighed, and a finding was made on this

issue based upon the entire record and its conflicts so far as

they existed."   The commission concluded that employer's evidence

was insufficient to overcome the statutory presumption that

claimant's work stress was causally related to his disability.

                       II.   EXCLUDED TESTIMONY

     Proffer facilitates appellate review of an exclusion of

testimony.    "[W]hen testimony is rejected before it is delivered,

an appellate court has no basis for adjudication unless the

record reflects a proper proffer."       Whittaker v. Commonwealth,

217 Va. 966, 968, 234 S.E.2d 79, 81 (1977) (citation omitted).

"[I]t is incumbent upon the proponent of the evidence to make a

proffer of the expected answer."       Speller v. Commonwealth, 2 Va.

App. 437, 440, 345 S.E.2d 542, 545 (1986).      Without a proffer,

"we are precluded from a consideration of this issue on appeal."

 Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519,

521 (1992).




                                   8
     The rule is the same for administrative proceedings. 1    "When

a deputy commissioner refuses to admit evidence . . . 'the party

must proffer or avouch the evidence for the record.'"   Daniel

Constr. Co. v. Tolley, 24 Va. App. 70, 79, 480 S.E.2d 145, 149

(1997) (quoting Smith v. Hylton, 14 Va. App. 354, 357, 416 S.E.2d

712, 715 (1992)).   "[O]therwise, the appellate court has no basis

to decide whether the party was prejudiced by the deputy

commissioner's error."   Daniel Constr. Co., 24 Va. App. at 79,

480 S.E.2d at 149 (citation omitted).
     In the instant case, employer asked claimant whether, before

his loss of vision episode, he ever thought work stress was a

factor in his high blood pressure, a question clearly relevant to

his awareness of the possibility of an occupational disease. 2
     1
      In the administrative context, parties must proffer
excluded evidence to complete the record for review within the
agency as well as in the appellate court. The Workers'
Compensation Commission regularly relies on proffered evidence
and rejects claims for review in the absence of proffer. See,
e.g., Harrison v. Mary Washington Hosp., Claim No. 1755140
(Workers' Comp. Comm'n Jan. 23, 1997) (deputy commissioner
initially accepted report only as a proffer and later admitted it
as evidence); Roman v. Holland, Claim No. 1679334 (Workers' Comp.
Comm'n June 11, 1996) (commission could not review exclusion of
testimony in absence of proffer); Miller v. James City County,
Claim No. 1722233 (Workers' Comp. Comm'n Oct. 17, 1995)
(commission cannot determine whether error was harmful without
proffer); Jackson v. Castle Bros. Track & Roller, Claim No.
1629399 (Workers' Comp. Comm'n Aug. 24, 1994) (proffer
demonstrated error in exclusion of testimony; decided on other
grounds); Williams v. Nielson Constr. Co., Claim No. 1515279
(Workers' Comp. Comm'n Sept. 14, 1993) (review of proffer of
excluded testimony reveals exclusion was harmless error).
     2
      Though the question did not specify "work" stress, the
context shows that the parties were discussing the stress
associated with being a police officer.



                                 9
The deputy commissioner ruled that claimant's reply would not be

material.    Claimant did not answer the question, and employer did

not proffer any expected testimony.     The content and timing of

claimant's knowledge of the relationship between his work and his

disease were clearly relevant to the statute of limitations

issue.   However, we have "no basis to decide whether [employer]

was prejudiced by the deputy commissioner's error," because

employer failed to proffer the expected answer.      Id.

Consequently, we cannot consider the exclusion of this evidence

on appeal.
                     III.   STATUTE OF LIMITATIONS

     The Workers' Compensation Act provides that claimants must

file for compensation for occupational diseases within "two years

after a diagnosis . . . is first communicated to the employee."

Code § 65.2-406(A)(5).      The statute "does not require that an

employee receive from a physician a communication that his

disease is work related."      City of Alexandria v. Cronin, 20 Va.

App. 503, 508, 458 S.E.2d 314, 317 (1995), aff'd, 252 Va. 1, 471
S.E.2d 184 (1996).    It requires only that he "learn that the

condition is an occupational disease for which compensation may

be awarded."    Id. at 509, 458 S.E.2d at 317.

     "Whether a diagnosis of an occupational disease was

communicated and when the communication occurred are factual

determinations."     Uninsured Employer's Fund v. Mounts, 24 Va.

App. 550, 558, 484 S.E.2d 140, 144 (1997) (citing Roller v. Basic



                                   10
Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989)).       On

appeal, we will uphold the commission's findings of fact when

they are supported by credible evidence.        See Mounts, 24 Va. App.

at 558, 484 S.E.2d at 144 (citing James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)).

        Viewed in the light most favorable to claimant, who

prevailed before the commission, see Fairfax County v. Espinola,

11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990), the record

establishes that claimant had no knowledge of his heart disease

until after the October 1994 loss of vision episode.

Additionally, although claimant was aware that he had

hypertension in the 1970s, Dr. Melhorn's letter and claimant's

testimony about his treatment provide credible evidence that

claimant did not learn of any work connection to the condition or

that he had a compensable occupational disease before October

1994.       Thus, based upon this record, we cannot hold as a matter

of law that the commission erred in finding that claimant's

application was not barred by the statute of limitations.
                   IV.   COMPENSABLE OCCUPATIONAL DISEASE

        To recover compensation for an ordinary disease of life as

an occupational disease, a claimant must establish "by clear and

convincing evidence, to a reasonable medical certainty, that [his

illness] arose out of and in the course of his employment."       Code

§ 65.2-401. 3     However, the legislature "has accorded policemen
        3
      In 1997 Code § 65.2-401 was amended to delete "to a
reasonable medical certainty," and to add "(not a mere



                                     11
who suffer from heart disease or hypertension preferential

status."     Department of State Police v. Talbert, 1 Va. App. 250,

253, 337 S.E.2d 307, 308 (1985).       Code § 65.2-402 creates a

rebuttable presumption that a causal connection exists between an

individual's employment as a police officer and certain diseases.

     "A presumption is a rule of law that compels the fact finder

to draw a certain conclusion . . . from a given set of facts."

Martin v. Phillips, 235 Va. 523, 526, 369 S.E.2d 397, 399 (1988)

(citing Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320,
329 (1934)).    "The primary significance of a presumption is that

it operates to shift to the opposing party the burden of

producing evidence tending to rebut the presumption."       Martin,

235 Va. at 526, 369 S.E.2d at 399.      Here, "[t]he effect of the

presumption is to eliminate the need for a claimant to prove a

causal connection between his disease and his employment."         City

of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243,

244-45 (1992).    "In the absence of competent evidence to the

contrary, the statutory presumption controls, and the claimant

prevails."     Fairfax County Fire & Rescue Dep't v. Mitchell, 14

Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992).

     To trigger the presumption, claimant need only prove his

occupation and his disability from heart disease or hypertension,

the diseases identified in Code § 65.2-402.      Once claimant has

established his prima facie case, "[t]he presumption shifts the

probability)."




                                  12
burden of going forward with the evidence from the claimant to

his employer."      Id.

     Proof of claimant's disability from heart disease or

hypertension depends upon medical evidence.        "A question raised

by conflicting medical opinion is a question of fact."

Department of Corrections v. Powell, 2 Va. App. 712, 714, 347

S.E.2d 532, 533 (1986).      "Decisions 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).

     In the instant case, the commission found that "the medical

records sufficiently establish the presence of coronary artery

disease," under Code § 65.2-402.         Dr. Tulou testified that a

thallium scan showed inadequate blood flow through the coronary

arteries.    This testimony provides credible evidence in support

of the commission's finding.      "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)

(citation omitted).       Consequently, we cannot hold that the

commission erred in finding that the claimant established a

compensable occupational disease, utilizing the presumption

contained in Code § 65.2-402.

            V.   SUFFICIENCY OF EMPLOYER'S REBUTTAL EVIDENCE
     In a recent decision, the Supreme Court reaffirmed the




                                    13
standard for an employer seeking to rebut a law enforcement

officer's use of the causation presumption.   "[I]n order to

overcome the statutory presumption, the employer merely 'must

adduce competent medical evidence of a non-work-related cause of

the disabling disease.'"    Augusta County Sheriff's Dep't v.

Overbey, No. 962561 (Oct. 31, 1997), ___ Va. ___, ___ S.E.2d ___

(1997) (citing Doss v. Fairfax County Fire & Rescue Dep't, 229

Va. 440, 442, 331 S.E.2d 795, 796 (1985)).    The Court announced

that
            nothing in the statute or the several
            decisions of this Court dealing with rebuttal
            of this presumption suggests that the
            employer has the burden of excluding the
            "possibility" that job stress may have been a
            contributing factor to heart disease.


Overbey, ___ Va. at ___, ___ S.E.2d at ___.

       In the instant case, Dr. Davis indicated that the "probable

cause of [claimant's] condition is genetic and environmental,"

and Dr. Hess attributed claimant's cardiovascular disease to "a

genetic predisposition in combination with his risk factors."

Under the standard set forth in Overbey, this evidence of a
genetic cause sufficiently rebutted the statutory presumption

that claimant's heart disease is work-related.

       Without the benefit of the statutory presumption to

establish a causal relationship between his job as a police

officer and his heart disease, claimant "had the burden of

'establishing by clear and convincing evidence, to a reasonable

degree of medical certainty,' that his [condition] arose out of



                                 14
and in the course of his employment."    Overbey, ___ Va. at ___,

___ S.E.2d at ___.   Although claimant's job was undeniably

stressful, claimant failed to meet this burden.   None of the

doctors opined to a reasonable degree of medical certainty that

job stress was a causative factor in the disease claimant

suffered.   Cf. Duffy v. Commonwealth, 22 Va. App. 245, 251, 468

S.E.2d 702, 705 (1996) (employer's evidence failed to rebut

presumption by a preponderance of the evidence and the statutory

presumption thus controls).    Thus, the evidence was insufficient

to establish "to a medical certainty" that his heart disease

arose out of his employment.   Therefore, we are required to

reverse the commission's award and dismiss claimant's application

for benefits.
                                                    Reversed.




                                 15
