                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


DONALD R. GODFREY
                                           MEMORANDUM OPINION* BY
v.   Record No. 1950-00-1                JUDGE JAMES W. BENTON, JR.
                                               APRIL 10, 2001
CITY OF PORTSMOUTH FIRE DEPARTMENT


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael A. Kernbach (Jack T. Burgess &
          Associates, P.C., on brief), for appellant.

          William C. Walker (Taylor & Walker, P.C., on
          brief), for appellee.


     Donald R. Godfrey contends that the Workers' Compensation

Commission erred in ruling that his employer, the City of

Portsmouth Fire Department, produced a preponderance of evidence

to rebut the presumption that his heart disease was an

occupational disease.   See Code § 65.2-402(B).    We agree, and we

reverse and remand this matter to the commission.

                                I.

     At the time of the evidentiary hearing, Donald R. Godfrey

was fifty-six years old and had worked for the City of

Portsmouth Fire Department for thirty-five years.    Godfrey's

initial employment physical examination did not indicate signs


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of heart disease and revealed his blood pressure was in normal

range.   As a firefighter, Godfrey later trained to be an

emergency medical technician.   In his job, he was often aroused

from sleep to respond to fires, emergency medical calls,

domestic disturbances, shootings, stabbings, automobile

accidents, and various other emergency events.   Godfrey's

testimony contains descriptions of emergencies involving tragic

deaths of children, other "terrible things [he has seen] in

[his] career," and his general job duties.   During the years he

has been employed as a firefighter, Godfrey has developed

hypertension and high cholesterol.

     In 1997, Godfrey complained of chest pains and was referred

to a cardiologist.   Dr. Edward O. Lynch performed a diagnostic

catherization and diagnosed "single vessel disease with high

grade obstruction of the proximal LAD and first diagnal artery."

Dr. Lynch later reported that Godfrey has "known two-vessel

coronary artery disease" and continued as follows:

           Mr. Godfrey's underlying ischemic coronary
           artery disease is related to his gender,
           being an adult male, and his history of
           elevated cholesterol and hypertension.
           There has never been shown any direct
           relationship showing stressful jobs, such as
           fire fighting, police work, or commercial
           airline piloting, to be a causation for
           underlying ischemic heart disease. Mr.
           Godfrey certainly could have been a painter,
           a postman, or any other occupation, and
           could have potentially still developed
           underlying ischemic heart disease because of
           his risk factors.


                                - 2 -
     Godfrey was also treated by another cardiologist,

Dr. William E. Callaghan.   His reports include the following:

          Clearly stress plays some role in control of
          hypertension. Patients with more stressful
          environments are likely to have poorly
          controlled hypertension. . . . [T]here are
          numerous articles which attempt to link the
          level of stress with development of coronary
          disease. To the best of my knowledge, there
          is no definitive study that supports the
          conclusion, although it is in the great
          likelihood because of difficulties in
          measuring stress in an objective fashion.
          . . . I do believe hypertension has played
          some role in this gentleman's coronary
          artery disease. . . . [H]is cholesterol has
          also played a role in his development of
          coronary artery disease. His last total
          cholesterol was 204 with an LDL of 125 both
          of which are quite elevated, but improved on
          medication therapy.

Dr. Callaghan later confirmed his views.

          I, . . . told Mr. Godfrey that I do feel
          that stress plays a role in the development
          of coronary artery disease. He has
          described today and in the past on a couple
          of occasions, the significant stress that he
          experienced during his employment as a fire
          fighter. Although it is difficult to gauge,
          I have told him that I do believe that
          stress has played a role in his development
          of coronary disease.

     Dr. Lynch reviewed Dr. Callaghan's first report and

expressed his disagreement in a letter, which included a report

issued by two medical associations.    In pertinent part, he

reported as follows:

          For your interest, I have enclosed in this
          letter those risk factors which are thought
          to be prevalent as a contributing factor
          toward the development of ischemic heart

                               - 3 -
disease. They include category 1 risk
factors, category 2, 3, and 4 with their
contributions being less significant in the
lower groups. First let me say that Mr.
Godfrey's underlying ischemic heart disease
is secondary to elevated cholesterol,
hypertension, and his male gender. No where
on the list of risk factors that was
convened and established by this conference
and is now used as a standard of care in the
practice of cardiology is listed stress and
nowhere is mentioned specifically job
stress. There is under category 3,
psychosocial factors. I have enclosed for
you the excerpt from this publication that
outlines those psychosocial factors. Again,
these factors are not related to a specific
job stress, but to an individual and are
usually related to type A personalities,
patients with depression or hostile
personalities who are suspected to possibly
have aggravating risk for the development of
coronary artery disease. In regards to Dr.
Callaghan letters, I do agree with him and
in fact will further mention as he says that
there is no definitive study that supports
the conclusion that there is any
relationship between job stress and coronary
disease. I will frankly tell you that this
has been studied and there has never been
found to be any increased incidents of
coronary disease among any specific jobs
such as fireman, policeman, attorneys,
painters, candlestick makers, or butchers.
As he mentions, it would be very difficult
to interpret each individuals level of
stress. What may be very stressful to one
person would be inconsequential possibly to
another.

   In summary, Dr. Callaghan is correct
stating that Mr. Godfrey's coronary disease
is secondary to hypertensive vascular
disease, hyperlipidemia, and his male
gender. There is no evidence presently or
literature to support any job stress related
incidents as a risk factor for coronary
disease.


                    - 4 -
                                 II.

     The commission reviewed the evidence and made the following

findings:

               Based on the evidence presented in this
            case, we find that the employer has rebutted
            the presumption and proven that job-related
            stress was not a cause of [Godfrey's] heart
            disease. Dr. Lynch clearly did not believe
            that stress resulting from [Godfrey's] job
            as a firefighter was a cause of his heart
            disease. Although Dr. Callaghan did relate
            job stress to [Godfrey's] heart disease, he
            acknowledged that this was not supported by
            studies. Considering the fact that
            Dr. Lynch was a treating physician and
            Dr. Callaghan's candid acknowledgement that
            his view was not supported by definitive
            studies, we find Dr. Lynch's opinion the
            more persuasive. As such, the employer has
            shown by a preponderance of the evidence
            that [Godfrey's] heart disease was not
            caused by his employment. The employer has
            also established the second prong of the
            test in showing that there was a
            non-work-related cause of the disease.
            Dr. Lynch unequivocally stated that the
            proximate causes of [Godfrey's] condition
            was [Godfrey's] gender and a history of
            elevated cholesterol and hypertension.
            Dr. Callaghan agreed that [Godfrey's]
            hypertension and cholesterol have played a
            role in his condition. In the absence of
            any clear statement from Dr. Callaghan that
            [Godfrey's] job as a firefighter caused or
            contributed to his heart disease, we find
            there is evidence of a non-work-related
            cause of the disease. We therefore find
            that the employer has rebutted the statutory
            presumption of [Code] § 65.2-402.

                                III.

     In pertinent part, Code § 65.2-402 provides as follows:

            B. Hypertension or heart disease causing
            the death of, or any health condition or

                                - 5 -
          impairment resulting in total or partial
          disability of (i) salaried or volunteer
          firefighters . . . 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.

          *      *      *      *       *      *     *

          D. The presumptions described in . . . this
          section shall only apply if persons entitled
          to invoke them have, if requested by the
          . . . governing body employing them,
          undergone preemployment physical
          examinations that (i) were conducted prior
          to the making of any claims under this title
          that rely on such presumptions, (ii) were
          performed by physicians whose qualifications
          are as prescribed by the . . . governing
          body employing such persons, (iii) included
          such appropriate laboratory and other
          diagnostic studies as the . . . governing
          bodies may have prescribed, and (iv) found
          such persons free of respiratory diseases,
          hypertension, cancer or heart disease at the
          time of such examinations.

The principle is now well established that "[t]o overcome the

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, 258 Va. 103, 114, 515

S.E.2d 557, 562-63 (1999) (emphasis added).

     Twenty years ago the Supreme Court ruled that when the

legislature enacted the statutory presumption that covers

employees such as firefighters, "[t]he legislature knew that the

causes of . . . cardiac diseases are unknown and that the


                               - 6 -
medical community is split regarding the impact of stress and

work environment on these diseases."   Fairfax County Fire and

Rescue Ser. v. Newman, 222 Va. 535, 540, 281 S.E.2d 897, 900

(1981).   Applying that rationale, we recently held as follows:

           By enacting the statutory presumption, the
           General Assembly resolved the split in
           medical opinions in favor of the employee
           and adopted the presumption that the stress
           of working as a law enforcement officer
           causes or contributes to the development of
           heart disease. Testimony which merely
           refutes the premise of such a legislatively
           enacted presumption does not constitute
           proper evidence in rebuttal. Where the
           General Assembly has concluded that there is
           a causal link between stress and heart
           disease, it is not for the commission or the
           courts to reconsider the issue, for to do so
           would defeat the intentions of the
           legislature. It thus follows that, "[i]t is
           impermissible for the [commission] to accept
           the opinion of a physician so disposed as
           the basis for disallowing a claim." . . .
           We, accordingly, hold 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
           purposes of overcoming the presumption.

Medlin v. County of Henrico Police, 34 Va. App. 396, 406-07, 542

S.E.2d 33, 38-39 (2001) (citations omitted).

     As an employee of the City of Portsmouth Fire Department,

Godfrey was within the category of employees covered by the

statutory presumption.   Furthermore, the evidence proved Godfrey

was eligible to invoke the benefit of the presumption because

his initial employment physical examination showed him to be

free of heart disease and hypertension.

                               - 7 -
     In finding that the employer rebutted the first prong of

the presumption, the commission found to be more persuasive

Dr. Lynch's opinion because it was based in substantial part

upon studies which establish that no relationship has been shown

between the stress of being a firefighter and underlying heart

disease.   That evidence, however, does nothing more than attack

the underlying rationale of the statute, which establishes the

presumptive link between Godfrey's employment and his disease.

The studies cited by Dr. Lynch, which were the basis upon which

the commission found Dr. Lynch's opinion to be more persuasive,

are not probative of the issue that the employer must

necessarily prove, i.e., that the heart disease was not caused

by employment.   Id. at 407, 542 S.E.2d at 38-39.   When we

disregard this evidence, we cannot conclude that the employer

has rebutted the presumption.

     For these reasons, we reverse the commission's decision and

remand for rehearing.

                                           Reversed and remanded.




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