                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


CITY OF PORTSMOUTH SHERIFF'S DEPARTMENT
                                             MEMORANDUM OPINION*
v.   Record No. 2698-00-1                         PER CURIAM
                                                MARCH 27, 2001
HARRY W. TORBERT


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (William C. Walker; Donna White Kearney;
             Taylor & Walker, P.C., on brief), for
             appellant.

             (Alan P. Owens, on brief), for appellee.


     City of Portsmouth Sheriff's Department (employer) contends

that the Workers' Compensation Commission erred in finding that

employer failed to present sufficient medical evidence to rebut

the statutory presumption contained in Code § 65.2-402 that

Harry W. Torbert's (claimant) heart disease is an occupational

disease under the Workers' Compensation Act ("the Act").        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.     See Rule 5A:27.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     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 proved that appellant had been a

Portsmouth City police officer for twenty-five years.    In 1989,

the Portsmouth Sheriff's Department hired claimant as a deputy

sheriff/corrections officer.

     In 1987, claimant was diagnosed with diabetes.     Since at

least 1994, claimant had intermittently treated his diabetes

with medication.   In January 1991, claimant had an abnormal

electrocardiogram.   In August 1996, a left atrial hemi-block was

discovered in claimant.

     Claimant's job required that he process inmates in and out

of jail, supervise their meals and activities, and transport

them to and from court and other jail facilities.    Claimant

testified regarding various job stressors primarily related to

conflict with his supervisors.

     On November 15, 1998, as claimant was carrying meals to an

outside facility, he felt pain in his left arm and experienced

shortness of breath.   The next day, he reported to Maryview

Medical Center emergency room, where he was examined by Dr.

Kasedul Hoq.

     Dr. Hoq recorded a history of non-insulin dependent

diabetes mellitus, controlled hypertension, and diabetic

polyneuropathy.    Dr. Hoq noted that claimant experienced chest

                                 - 2 -
pain on Saturday night, fell asleep, and awoke without any

problem.    He noted that claimant reported to work, where he felt

chest pain and then reported to the hospital.   Dr. Hoq diagnosed

chest pains, non-insulin dependent diabetes mellitus, diabetic

polyneuropathy, and controlled hypertension.

     Dr. Philip R. Goldstein, a cardiologist, examined claimant

upon Dr. Hoq's request for a consultation.   Dr. Goldstein noted

that claimant suffered from a history of high blood pressure,

which had resolved, and a history of an irregular heartbeat, but

no history of a weak or enlarged heart, heart attack, heart

murmur, or rheumatic fever.   Dr. Goldstein noted that claimant

had diabetes and that on average, he smoked one pack of

cigarettes per day.   A November 18, 1998 cardiac catheterization

showed an "anterior wall myocardial infarction recently but not

in this admission."   Dr. Goldstein diagnosed claimant as

suffering from severe arteriosclerotic heart disease and

coronary artery abnormalities.

     Dr. James C. Laroque, an endocrinologist, who consulted to

assist in managing claimant's diabetes, noted on November 19,

1998, that the medication claimant had been taking to control

his diabetes "is considered to have been contributing to [his]

heart failure because of its tendency to cause sodium

retention."

     On November 23, 1998, claimant was discharged from the

hospital.   His final diagnosis was 100% occlusion of the ostium

                                 - 3 -
with large anterior wall myocardial infarction, insulin

dependent diabetes mellitus, controlled hypertension, diabetic

polyneuropathy, and a possible left shoulder muscle tear.

     In December 1998, Dr. Goldstein noted that claimant had

social stresses at home and was depressed.

     In a January 13, 1999 letter, Dr. Goldstein noted that

claimant suffered from ischemic cardiomyopathy secondary to a

large anterior wall myocardial infarction and congestive heart

failure, which is severe and limits his ability to perform

normal activities.

     In a November 3, 1999 response to a letter from claimant,

Dr. Hoq noted that claimant had recounted instances of mental

stress on the job.   While acknowledging that mental stress is a

risk factor in heart disease, Dr. Hoq wrote that "it is

difficult for me to say whether these mental stresses

precipitated your heart attack."

     In a February 20, 2000 letter, Dr. Hoq opined that

"physical exertion [at work] may have triggered the myocardial

infarction [claimant] sustained. . . .    According to Mr. Torbert

he was under a lot of mental stress because of verbal abuse he

got from some of his superior officers.    I cannot rule out the

mental stress as a contributing factor for his heart problem."

     Dr. Edward M. Lynch, a cardiologist, reviewed claimant's

medical records upon employer's request.   In a February 28, 2000

letter, Dr. Lynch opined that claimant sustained a heart attack

                               - 4 -
sometime between August and November 1998.   Dr. Lynch stated

that claimant had fatty plaquing and occlusion to the arteries

to his heart, which resulted in heart muscle damage.    Dr. Lynch

noted that claimant had several risk factors for heart disease,

including diabetes, history of hypertension, smoking, and a

family history of heart disease.   Dr. Lynch recognized that

claimant experienced stress, but stated that there was no

evidence that stress contributes to the development of heart

disease.

     In City of Portsmouth Sheriff's Dept. v. Clark, 30 Va. App.

545, 518 S.E.2d 342 (1999), we recognized as follows:

           Under Code 65.2-402(B), a heart disease
           incurred by a deputy sheriff is "presumed to
           be [an] occupational disease[], suffered in
           the line of duty, that [is] covered by [the
           Act] unless such presumption is overcome by
           a preponderance of competent evidence to the
           contrary." [In Bass v. City of Richmond
           Police Dept., 258 Va. 103, 115, 515 S.E.2d
           557, 563 (1999),] [t]he Supreme Court of
           Virginia recently re-affirmed the principle
           that an employer may rebut the presumption
           of Code 65.2-402(B) by proving by a
           preponderance of the evidence that: 1) the
           claimant's disease was not caused by his or
           her employment, and 2) there was a
           non-work-related cause of the disease. When
           the commission determines that an employer
           has failed to overcome the statutory
           presumption, the claimant is entitled to an
           award of benefits.

Id. at 552, 518 S.E.2d at 345 (citations omitted).

     The commission found that employer failed to rebut either

prong of the Bass test by a preponderance of the evidence.


                               - 5 -
     With respect to the first prong of the Bass test, the

evidence established that the treating physician, Dr. Hoq, could

not rule out mental stress as a contributing factor to

claimant's heart disease.   In addition, although Dr. Lynch

opined that "[t]here is no evidence, although this has been

studied, that being a policeman or being in a high stress job is

a contributory factor to underlying ischemic heart disease," he

did not render an opinion as to whether job stress in claimant's

case was a causative factor in the development of his heart

disease.   "[B]ecause of the legislatively created presumption to

the contrary," a physician's opinion that "as a general matter,

occupational stress is not linked to the development of heart

disease," is of no probative value with respect to the issue of

whether a claimant's work contributed to his or her heart

disease.   Medlin v. County of Henrico Police, ___ Va. App. ___,

___ S.E.2d ___ (2000).   Accordingly, as fact finder, the

commission was entitled to conclude that Dr. Lynch's opinion was

not sufficient to overcome the first prong of the Bass test.

     With respect to the second prong of the Bass test, Dr.

Lynch's opinion, relied upon by employer, that claimant suffered

from various risk factors for heart disease, was not sufficient

to rebut the presumption, absent an opinion that one or more of

those non-work-related risk factors actually caused claimant's

heart disease.   "'The showing of "risk factors" alone does not

rebut the statutory presumption and does not establish competent

                               - 6 -
medical evidence of a non-work-related cause of the disabling

disease.'"   Clark, 30 Va. App. at 554, 518 S.E.2d at 346

(quoting City of Norfolk v. Lillard, 15 Va. App. 424, 429, 424

S.E.2d 243, 246 (1992)).

     Based upon this record, we cannot find as a matter of law

that employer's evidence rebutted the statutory presumption

contained in Code § 65.2-402 that claimant's heart disease is an

occupational disease under the Act.    Accordingly, we affirm the

commission's decision.

                                                            Affirmed.




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