                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
          Humphreys, Clements, Felton, Kelsey and McClanahan
Argued at Richmond, Virginia


AMHERST COUNTY SHERIFF’S DEPARTMENT AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION
                                                             MEMORANDUM OPINION* BY
v.     Record No. 1641-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                 DECEMBER 28, 2004
EDWIN PHILLIP MARTIN


                                  UPON REHEARING EN BANC

              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Ralph L. Whitt, Jr. (Jennifer C. Williamson; Whitt & Associates, on
                 briefs), for appellants.

                 Gregory P. Perigard (Michael A. Kernbach; Burgess, Kernbach &
                 Perigard, on brief), for appellee.


       Amherst County Sheriff’s Department and the Virginia Municipal Group Self-Insurance

Association (employer) appealed the decision of the Virginia Workers’ Compensation

Commission awarding benefits to Edwin Phillip Martin to compensate him for disability

resulting from heart disease. Employer contended on appeal that the commission erred by

1) incorrectly applying our decision in Medlin v. County of Henrico Police, 34 Va. App. 396,

542 S.E.2d 32 (2001), 2) holding that the employer failed to rebut the statutory presumption set

forth in Code § 65.2-402, and 3) holding that Martin proved entitlement to compensation benefits

for total disability for periods before October 27, 1993, and from September 11, 1996 and

continuing. By opinion dated June 1, 2004, a divided panel of this Court affirmed in part,

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reversed in part, and remanded the case to the commission for further proceedings consistent

with the opinion. See Amherst County Sherriff’s Dep’t v. Martin, 2004 Va. App. LEXIS 253

(June 1, 2004). Employer petitioned for en banc review of the panel decision but limited its

appeal to whether the commission erred in awarding Martin disability benefits from September

11, 1996 and continuing. We granted employer’s petition for en banc review of the sole issue

raised, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en

banc, we lift the stay of the panel’s decision in all respects except for its affirmance of the

commission’s award of disability benefits from September 11, 1996 and continuing, the issue we

address en banc. With respect to the commission’s award of disability benefits from September

11, 1996 and continuing, we affirm.

                                           I. Background

       On October 27, 1993, Martin filed a Claim for Benefits seeking temporary total disability

benefits and medical benefits for an acute myocardial infarction. The parties stipulated at an

evidentiary hearing on November 6, 1997, that Martin’s pre-injury average weekly wage was

$345 and that he was entitled to invoke the presumption of Code § 65.2-402. Martin conceded

and agreed that his claim must fail if employer rebutted the presumption created in his favor by

Code § 65.2-402.

       The deputy commissioner issued an opinion on December 24, 1997, denying Martin’s

claim. Although the deputy commissioner found that Martin did not have heart disease when he

was hired, he found that the employer rebutted the presumption established by Code § 65.2-402.

Martin petitioned for review before the full commission.

       On April 8, 1998, the full commission remanded the case to allow counsel “the

opportunity to develop evidence in light of the decision in [Augusta County Sheriff’s Dep’t v.

Overbey, 254 Va. 522, 492 S.E.2d 631 (1997)].” No new evidence was presented.

                                                 -2-
       A second opinion was issued by the deputy commissioner on August 13, 1998, which

again denied the claim on the ground that the employer rebutted the statutory presumption.

However, in footnote nine of the opinion, the deputy commissioner stated, “Had the claim been

found compensable, we would have ruled that Dr. Van Dyke’s disability reports were

uncontradicted and established the work incapacity as alleged by the claimant.”

       Martin again appealed to the full commission. The commission stayed the appeal

pending the Supreme Court’s decision in Bass v. City of Richmond, 258 Va. 103, 515 S.E.2d

557 (1999). Martin argued on review that the employer had not rebutted the presumption

established under Code § 65.2-402. In its opinion issued April 17, 2002, the commission held

that the employer had failed to rebut the presumption established under Code § 65.2-402 and

reversed on this ground. The matter was remanded to the deputy commissioner for an expedited

hearing “to determine the extent of the award to which the claimant is entitled.”

       In an opinion issued on April 25, 2002, the deputy commissioner stated that he

               initiated a conference call with claimant’s and defense counsel on
               April 24, 2002, to determine if there was any new evidence to be
               presented at an evidentiary hearing. Both counsel agreed that all
               collateral issues had already been decided in this case by our
               findings or by the parties’ stipulations. Accordingly, both counsel
               agreed that the Commission could enter its award based upon the
               record already before the commission.1

The deputy commissioner then found that the evidence established disability from September 11,

1996 and continuing.

       The employer appealed the April 25, 2002 decision to the full commission which, on

June 4, 2003, affirmed the decision but modified the award to reflect Martin’s claimed periods of




       1
          Neither Martin nor employer objected to the deputy commissioner’s recitation of the
parties’ agreement that the commission could enter its award based on the evidence before it.

                                               -3-
disability before October 27, 1993, and from September 11, 1996 to the present. In affirming,

the commission stated,

               The last medical record to address the claimant’s disability is dated
               November 6, 1997, and reflects that he was disabled from work
               due to severe heart disease. Since the record was not reopened for
               the introduction of new evidence, the disability determinations in
               the August 13, 1998, Opinion are in effect and provide for
               temporary total disability benefits from September 11, 1996 and
               continuing.

Employer’s appeal and the panel decision followed.

            II. Martin’s Disability Award from September 11, 1996 and Continuing

       Employer contends that there was insufficient evidence proving Martin’s disability from

September 11, 1996 and continuing. When reviewing a sufficiency of the evidence claim, we

view the evidence in a light most favorable to Martin as the party prevailing below. Clinchfield

Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003). Our function on appeal is to

determine whether credible evidence supports the commission’s determination. Westmoreland

Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988). If credible evidence

supports the commission’s determination, we are bound by it notwithstanding the fact that

evidence may exist which supports a contrary finding. Morris v. Badger Powhatan/Figgie Int’l,

Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). Here, we hold that sufficient evidence

supports the commission’s award of disability benefits from September 11, 1996 and continuing.

       In its final June 4, 2003 opinion, the commission noted that, because the medical

evidence in the case had become “stale,” it had given the parties an opportunity to submit

additional evidence in the hearing on remand before the deputy commissioner, an invitation both

parties declined. Instead, during a conference call before the April 25, 2002 hearing, the parties

stipulated the “commission could enter its award based upon the record already before the

commission.” The deputy commissioner, therefore, confined his review of the record to the

                                               -4-
evidence which, to that point in time, had been presented in earlier hearings. That evidence

showed that Martin developed severe chest pains in August 1996, that he underwent repeat

bypass surgery on September 17, 1996, and that, although reports subsequent to the bypass

surgery suggested that Martin was steadily recovering, he again complained of chest pains in

April 1997. The evidence further established that, on June 9, 1997, Dr. Van Dyke affirmatively

indicated Martin was disabled from work as a deputy sheriff.2 On September 25, 1997,

Dr. Van Dyke stated that Martin was “severely debilitated due to left ventricular dysfunction.”

Dr. Van Dyke also stated on November 6, 1997 that Martin “is disabled due to severe heart

disease. He is not able to work.” No other reports discussing Martin’s disability were filed after

1997. Thus, based on its review of the record, which was closed in 1997 by agreement of the

parties, the commission found that sufficient evidence supported an award of benefits from 1996

and continuing. Because the parties stipulated to the closing of the record after declining the

invitation to re-open it, the commission’s focus was properly narrowed to the evidentiary record

of Martin’s disability as it existed at the end of 1997.

       Viewed in a light most favorable to Martin, the record supports the commission’s

determination that the evidence, as it stood in 1997, established that Martin was totally disabled

and entitled to benefits from September 11, 1996 and continuing. Martin’s severe chest pains,

his bypass surgery, and Dr. Van Dyke’s opinions regarding his condition and inability to work

constitute credible evidence from which the commission could conclude that Martin proved his




       2
         Employer argues that this testimony establishes Martin was not totally disabled but
merely disabled from working in his capacity as a deputy sheriff. First, we do not read this
testimony to be in conflict with other evidence establishing that Martin was totally disabled.
Furthermore, even assuming the testimony conflicts with other evidence, we still must affirm
because it is the commission’s prerogative to weigh, and resolve conflicts in, the evidence. See
Morris, 3 Va. App. at 279, 348 S.E.2d at 877.

                                                 -5-
total and continuing disability from September 11, 1996 forward. Accordingly, we will not

disturb its conclusion on appeal.3

       For the foregoing reasons, we affirm the commission’s award of disability benefits from

September 11, 1996 and continuing. We further lift the stay of the panel decision in all other

respects4 and reinstate it and direct the commission, on remand, to enter an award consistent with

this opinion.

                                                                         Affirmed and remanded.




       3
         Employer also contends that the evidence failed to establish that Martin marketed his
remaining work capacity. See Washington Metropolitan Transit Auth. v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 655 (1985). However, as noted supra, we find that the evidence supports
the commission’s conclusion that Martin was totally disabled. Therefore, no proof was needed
that Martin failed to market his remaining capacity.
       4
         The panel decision affirmed the commission’s award of disability benefits for all
periods except the award of disability benefits before October 27, 1993 and medical benefits
before October 12, 1993. It reversed the award of disability benefits before October 27, 1993
and medical benefits before October 12, 1993.
                                                -6-
McClanahan, J., dissenting.

       I dissent from the majority opinion regarding the extent of Martin’s disability award. The

majority opinion upholds the commission’s conclusion that Martin proved his entitlement to total

disability benefits starting and continuing from September 1996. That conclusion is based

exclusively on evidence that was introduced in 1997, five years before the commission’s

decision in 2003. In that opinion, the commission stated that at the time of “its April 17, 2002,

Opinion, several years had passed, and the evidence regarding disability was clearly stale.”5 The

majority now relies on that stale evidence to affirm the commission’s decision. By relying on


       5
           The commission has a long-standing policy of rejecting stale evidence. See, e.g.,
Abbott v. Mastec Elec. Serv./Mastec, Inc., 2003 VA Wrk. Comp. LEXIS 1007 (June 12, 2003)
(“Since the most recent pertinent medical report . . . is nearly a year old, we find that any
statements contained in those reports regarding the effect of the symptoms on [claimant’s] ability
to function are stale.”); Thomas v. Office Depot, Inc., 2003 VA Wrk. Comp. LEXIS 338
(February 10, 2003) (“At various times, the Commission has considered the issue of stale
medical records and has found that records of various ages are stale and thus not persuasive
because they do not reflect the claimant’s current medical condition.”); Carter v. Arlington
County Fire Dep’t, 2002 VA Wrk. Comp. LEXIS 774 (April 1, 2002) (“[I]t would be
unreasonable to require an employer to accept responsibility for a medical expense based on a
‘stale’ opinion, particularly when medical conditions and treatment modalities develop and
change.”); Pittman v. Aramark Refreshment Serv., Inc., 2001 VA Wrk. Comp. LEXIS 4007
(September 21, 2001) (“In review opinions, the Commission has addressed issues regarding stale
medical records approximately 100 times in recent years. Many of the opinions finding that
medical records were stale focused on records which were over one year old.”); Chapman-Swann
v. Marriott Corp., 1997 VA Wrk. Comp. LEXIS 2612 (June 20, 1997) (“The Commission will
reject a stale medical report which may not reflect the claimant’s current condition.”); Cox v.
Fairfax County Fire & Rescue Dep’t, 1994 VA Wrk. Comp. LEXIS 35 (August 25, 1994)
(“Even if the medical . . . evidence was more certain, it would have to be rejected as stale.”); see
also Jenkins v. Deagles Boat Yard, Inc., 2004 VA Wrk. Comp. LEXIS 507 (August 17, 2004);
Coy v. Comfort Inn, 2004 VA Wrk. Comp. LEXIS 583 (July 29, 2004); Fitzgerald v. Tyson
Foods, Inc., 2004 VA Wrk. Comp. LEXIS 292 (June 7, 2004); Dunkelberger v. E. Technical
Communications, Inc., 2004 VA Wrk. Comp. LEXIS 186 (May 11, 2004); Greene v. Telepad
Corp., 1998 VA Wrk. LEXIS 4915 (December 3, 1998); Reyes v. Embassy Suites Hotel, 1998
VA Wrk. Comp. LEXIS 4004 (August 10, 1998); Warren v. Strickland Fire Prot., Inc., 1997 VA
Wrk. Comp. LEXIS 3578 (June 24, 1997); Namdar v. Creative Hairdressers, Inc., 1996 VA Wrk.
Comp. LEXIS 388 (September 3, 1996); Joya v. Aerostar Serv., 1996 VA Wrk. Comp. LEXIS
1146 (November 22, 1996); Rashtian v. Nordstrom, Inc., 1993 VA Wrk. Comp. LEXIS 349
(November 2, 1993); Bateman v. Lebo Mining, Inc., 1993 VA Wrk. LEXIS 450 (October 5,
1993); Lantrip v. Griffin Elec., Inc., 1993 VA Wrk. Comp. LEXIS 63 (February 25, 1993).

                                               -7-
the “clearly stale” 1997 evidence to uphold an award in 2003, the commission, and a majority of

this Court, has improperly presumed ongoing disability from the evidence that Martin could not

work in 1997. 6 This is error:

               There is no presumption in the law that once a disability has been
               established, a claimant will be assumed to remain disabled for an
               indefinite period of time. To the contrary, a party seeking
               compensation bears the burden of proving his disability and the
               periods [or duration] of that disability.

Marshall Erdman & Assoc., Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997)

(internal citation omitted); see also Uninsured Employer’s Fund v. Clark, 26 Va. App. 277,

285-86, 494 S.E.2d 474, 478 (1998).

       Throughout the proceedings at the commission, before both the deputy commissioner and

the commission, Martin retained the burden of proof that his disability was total and ongoing.

See Washington Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 600-02, 324 S.E.2d 654,

655-56 (1985); see also Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d 835, 838 (1960). That

burden never shifted, including when the commission remanded the case because the evidence

was stale. At that time, Martin chose not to present any evidence to supplement that which the

commission deemed “clearly stale.” That no new evidence was presented inures to the detriment

of Martin, not to the employer, who bore no burden.



       6
         In concluding that Martin was entitled to his disability award, the commission stated
that when neither party supplemented the record, “the record remain[ed] as it was when it was
closed on November 6, 1997.” As the majority indicates, the record contained three medical
reports by Dr. Van Dyke: (1) the June 9, 1997 letter asking, “Was Mr. Martin disabled from
work as a deputy sheriff for any period of time? If so, state the dates of disability.”, to which
Dr. Van Dyke responded only, “Yes.” Dr. Van Dyke provided no dates of disability; (2) the
September 25, 1997 letter, which stated, “Mr. Martin at the present time is severely debilitated
due to left ventricular dysfunction.” (emphasis added); and, (3) the November 9, 1997 note,
which stated, “Mr. E.P. Martin is disabled due to severe heart disease. He is not able to work.”
(emphasis added). Notably, each of these reports pertains only to claimant’s contemporaneous
condition, not to the duration of his disability.

                                               -8-
       Because Martin failed to present any evidence of his continuing disability after the

commission deemed the evidence “clearly stale” in 2002, I would hold that there is no credible

evidence to conclude that Martin was disabled from 1997 to 2003. Medical evidence is subject

to the commission’s consideration and weighing, Hungerford Mech. Corp. v. Hobson, 11

Va. App. 675, 677, 401 S.E.2d 213, 215 (1991); however, the commission plainly characterized

the evidence as “clearly stale,” which, using the commission’s own description, is “not

persuasive.” Thomas v. Office Depot, Inc., 2003 VA Wrk. Comp. LEXIS 338 (February 10,

2003). No rational fact finder can reject evidence as “clearly stale,” and, one year later, find that

same evidence credible enough to meet the claimant’s burden of proving by a preponderance of

the evidence his continuing disability. The award for Martin’s disability after 1997 is, therefore,

unsupported and should be reversed.




                                                -9-
                                                                     Tuesday                 13th

               July, 2004.


Amherst County Sheriff's Department and
 Virginia Municipal Group Self-Insurance Association,                                         Appellants,

against             Record No. 1641-03-4
                    Claim No. 166-03-35

Edwin Phillip Martin,                                                                         Appellee.


                                    Upon a Petition for Rehearing En Banc

                                            Before the Full Court


       On June 15, 2004 came the appellants, by counsel, and filed a petition praying that the Court set

aside the judgment rendered herein on June 1, 2004, and grant a rehearing en banc thereof.

       On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on June 1, 2004 is stayed pending the decision of the Court en banc, and the appeal is reinstated

on the docket of this Court.

       The parties shall file briefs in compliance with Rule 5A:35. The appellants shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellants shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

                                           A Copy,

                                                   Teste:

                                                                       Cynthia L. McCoy, Clerk

                                                   By:

                                                                       Deputy Clerk
                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Felton and McClanahan
Argued at Alexandria, Virginia


AMHERST COUNTY SHERIFF’S DEPARTMENT
AND VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
                                                             MEMORANDUM OPINION* BY
v.     Record No. 1641-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                    JUNE 1, 2004
EDWIN PHILLIP MARTIN


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

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

                 Michael A. Kernbach (Burgess, Kernbach & Perigard, on brief), for
                 appellee.


       Amherst County Sheriff’s Department and the Virginia Municipal Group Self-Insurance

Association (employer) appeal the decision of the Virginia Workers’ Compensation Commission

awarding benefits to Edwin Phillip Martin to compensate him for disability resulting from heart

disease. Employer contends on appeal that the commission erred by 1) incorrectly applying our

decision in Medlin v. County of Henrico Police, 34 Va. App. 396, 542 S.E.2d 32 (2001), 2)

holding that the employer failed to rebut the statutory presumption set forth in Code § 65.2-402,

and 3) holding that Martin proved entitlement to compensation benefits for total disability for

periods before October 27, 1993, and from September 11, 1996 to the present. For the following

reasons, we affirm in part and reverse in part and remand the case to the commission.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                    I. Procedural Background

       On October 27, 1993, Martin filed a Claim for Benefits seeking temporary total disability

benefits and medical benefits for an acute myocardial infarction. The parties stipulated at an

evidentiary hearing on November 6, 1997, that Martin’s pre-injury average weekly wage was

$345 and that he was entitled to invoke the presumption of Code § 65.2-402. Martin conceded

and agreed that his claim must fail if employer rebutted the presumption created in his favor by

Code § 65.2-402.

       The deputy commissioner issued an opinion on December 24, 1997, denying Martin’s

claim. Although the deputy commissioner found that Martin did not have heart disease when he

was hired, he found that the employer rebutted the presumption established by Code § 65.2-402.

The deputy commissioner also determined that no physician advised Martin that his heart disease

was causally related to his employment. Pursuant to Code § 65.2-403, the “date of diagnosis”

was presumed to be the date the claim was filed, October 27, 1993. Martin petitioned for review

before the full commission.

       On April 8, 1998, the full commission remanded the case to allow counsel “the

opportunity to develop evidence in light of the decision in [Augusta County Sheriff’s Dep’t v.

Overbey, 254 Va. 522, 492 S.E.2d 631 (1997)].” No new evidence was presented.

       A second opinion was issued by the deputy commissioner on August 13, 1998, which

again denied the claim on the ground that the employer rebutted the statutory presumption.

Martin again appealed to the full commission. The commission stayed the appeal, pending the

Supreme Court’s decision in Bass v. City of Richmond, 258 Va. 103, 515 S.E.2d 557 (1999).

Martin argued on review that the employer had not rebutted the presumption established under

Code § 65.2-402 and that the date of injury was February 26, 1993, the first date that the

diagnosis of heart disease was made. In its opinion issued April 17, 2002, the commission

                                               -2-
upheld the deputy commissioner’s finding that the date of diagnosis and injury for Code

§ 65.2-403 purposes was October 27, 1993. However, it held that the employer had failed to

rebut the presumption established under Code § 65.2-402 and reversed on this ground. The

matter was remanded to the deputy commissioner for an expedited hearing “to determine the

extent of the award to which the claimant is entitled.”

       In the ensuing hearing before the deputy commissioner on April 24, 2002, both parties

agreed that all collateral issues had been decided in the case by the commission’s earlier findings

or by the parties’ stipulations. In an opinion issued on April 25, 2002, the deputy commissioner

found that the evidence established disability, beginning September 11, 1996, to the present and

continuing. The deputy commissioner reiterated his finding that October 27, 1993 was to be

deemed the date of accident for this claim and held that Martin was entitled to benefits from

October 27, 1993, to the present. The employer appealed the April 25, 2002 decision to the full

commission which, on June 4, 2003, affirmed the decision but modified the award to reflect

Martin’s claimed periods of disability before October 27, 1993, and from September 11, 1996, to

the present. This appeal followed.

                                     II. Factual Background

       We view the evidence and all reasonable inferences that may be drawn in the light most

favorable to Martin as the party prevailing below. Clinchfield Coal Co. v. Reed, 40 Va. App. 69,

72, 577 S.E.2d 538, 539 (2003). The record, so viewed, establishes that Martin was employed as

a corrections officer for employer since June 18, 1990. On February 26, 1993, Martin, then age

thirty-nine, awoke with chest pains and other symptoms. He was diagnosed with, and treated

for, a myocardial infarction, or heart attack. Martin returned to work and suffered a second heart

attack on July 19, 1993. Martin underwent bypass surgery, performed by cardiologist

Dr. William H. Van Dyke, Jr. on July 23, 1993, and returned to work in October of 1993. Martin

                                               -3-
claims disability from this condition from February 26 through May 9, 1993; from July 19

through October 17, 1993; and beginning September 11, 1996 and continuing to the present.

       The employer defended the claim on the ground that the presumption of Code § 65.2-402

did not apply because Martin was not free of heart disease when he was hired. It further argued

that, in any event, the presumption was rebutted and that Martin did not have an occupational

disease arising out of his employment. The employer disputed a diagnosis date of February 26,

1993, contending the diagnosis was not communicated to Martin at that time or thereafter. It

argued that the communication date should be the date on which Martin’s claim was filed.

Finally, the employer denied that the medical evidence supported the alleged disability

subsequent to September 11, 1996.

       The record discloses the following medical evidence was before the commission: the

medical reports and opinion of Drs. William H. Van Dyke, Jr., Thomas W. Nygaard, and Richard

A. Schwartz, Stuart F. Seides, and Michael L. Hess. The testimony of Drs. Schwartz, Seides,

and Hess was disregarded by the commission. That decision is not appealed by either party, and

we will not consider their testimony on appeal.

       Dr. Van Dyke was Martin’s treating physician. He addressed the relationship between

Martin’s heart disease and employment in correspondence dated June 9, 1997. In that

correspondence, he states that “occupational stress, while not a major risk factor, was a possible

minor risk factor in the disease process.” He does not define or otherwise characterize his use of

the term “risk factor.”

       Dr. Nygaard, a consulting physician, testified about the causes of Martin’s heart disease.

Regarding Martin’s non-occupational causes of his heart disease, Dr. Nygaard stated that “high

cholesterol and family history caused Martin’s heart disease and are not merely risk factors in his

case.” On the relationship between Martin’s occupation and his heart disease, Dr. Nygaard

                                               -4-
testified, variously, as follows: 1) Martin would have “developed heart disease no matter what

line of work he was in”; 2) Martin’s job was not a cause of his heart disease; 3) “Stress related

association with heart disease is controversial”; 4) “Most experts don’t consider stress to be a

risk factor”; 5) “I am not aware that I can ever say that a job is the cause of someone’s coronary

artery disease”; and 6) “I don’t think it has been shown in a general sense that job stress caused

his coronary artery disease.”

       In the opinion dated April 17, 2002, which determined that employer failed to rebut the

statutory presumption, the full commission stated the following:

                 Although both [Dr. Van Dyke and Dr. Nygaard] clearly stated that
                 the claimant was genetically predisposed to heart disease, and that
                 his high cholesterol levels most likely caused his condition, both
                 also stated that work-related stress “possibly” or “potentially”
                 played at least a minor role in the development of the claimant’s
                 heart disease.

The commission subsequently cited and quoted from our decision in Medlin, concluding:

“Thus, we find that the employer has failed to show that the stress associated with the claimant’s

work as deputy sheriff was not a cause of his heart disease. The statutory presumption has

therefore not been rebutted.”

                  III. The Commission Did Not Err in Finding Employer Failed to
                                Rebut the Statutory Presumption

       Employer contends that the commission erred because it presented sufficient evidence to

overcome the statutory presumption that heart disease is an occupational disease affecting law

enforcement officers. We disagree, finding that credible evidence supports the commission’s

determination.

       Code § 65.2-402 places the burden of production and persuasion on the employer to

prove, by a preponderance of the evidence, that the claimant’s heart disease was not caused by

his employment. It provides in relevant part:

                                                -5-
                 Hypertension or heart disease causing the death of, or any health
                 condition or impairment resulting in total or partial disability of . . .
                 (iii) members of county, city or town police departments [and] (iv)
                 sheriffs and deputy sheriffs . . . 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.

       The Supreme Court has held 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, 258 Va. at

114, 515 S.E.2d at 562.

       When reviewing a sufficiency of the evidence question, the function of our Court is to

determine whether credible evidence supports the commission’s decision, not to determine, de

novo, whether employer met its burden of persuasion. See Westmoreland Coal Co. v. Campbell,

7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988). In this case, therefore, we must determine

whether the commission could reasonably conclude that employer failed to overcome the

statutory presumption in favor of Martin. See id.

       Employer argues that it satisfied both prongs of the Bass test. Indeed, it is not seriously

contended that the second requirement under Bass was not proved. The testimony before the

commission established the non-work-related causes of Martin’s disease included

hypercholesterolemia7 and genetic predisposition.

       We conclude that employer’s argument that it also met the first requirement of Bass is

not supported in the record. The only evidence that Martin’s employment did not cause his heart

disease was presented by Dr. Nygaard. His testimony that Martin’s occupational stress was

potentially a secondary cause and not a primary cause of his heart disease, couched in

“possibilities” and not “probabilities,” clearly was insufficient to rebut the presumption. For the


       7
           Hypercholesterolemia is defined as elevated levels of cholesterol in the blood.
                                                -6-
same reason, Dr. Van Dyke’s testimony that occupational stress was a “possible minor risk factor

in the disease process” fails to rebut the statutory presumption. We therefore find that the

commission’s determination that Dr. Nygaard’s and Dr. Van Dyke’s testimony did not rebut the

statutory presumption is supported by credible evidence.

       Although Dr. Nygaard also testified that Martin’s occupation did not cause his heart

disease, he explained the underlying premise of that proffered opinion, stating “I would have to

say that it is not known that job stress has any relation to development of coronary artery

disease.” (Emphasis added). To emphasize the point, he also said, “I am not aware that I can

ever say that a job is the cause of someone’s coronary artery disease,” and “I don’t think it has

been shown in a general sense that job stress caused his coronary artery disease.” (Emphasis

added). Viewing the evidence in a light most favorable to Martin, we find that the commission

determined that Dr. Nygaard’s opinion constituted an improper general rebuttal of the statutory

presumption in violation of the holding in Medlin in light of both the totality of his testimony

and the commission’s citation to Medlin. The commission’s citation to Medlin supports the

conclusion that it gave no weight to Dr. Nygaard’s testimony that Martin’s heart disease was not

related to his employment and that it considered the entire context of that opinion in light of the

underlying reasons given by Dr. Nygaard. It is well-established that the commission can

determine which portions of Dr. Nygaard’s testimony to credit and which portions to disregard;

on appeal, this Court will not substitute its judgment on the facts for that of the commission.

Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). The

weight to be accorded the evidence is within the commission’s sole domain. Bass, 258 Va. at

114, 515 S.E.2d at 563. Giving due regard and deference to the fact-finding function of the

commission, we find that it could reasonably conclude from credible evidence that

Dr. Nygaard’s testimony constituted an improper general attack on the legislatively-established

                                                -7-
presumption pursuant to our holding in Medlin. We will not disturb that determination on

appeal.

          Employer contends, however, that the commission concluded that it had failed to rebut

the statutory presumption by misapprehending the testimony of Dr. Nygaard and Dr. Van Dyke.

Specifically, employer contends that the commission improperly relied on Dr. Nygaard’s

testimony that occupational stress was potentially a secondary cause and not a primary cause of

Martin’s heart disease, and Dr. Van Dyke’s testimony describing Martin’s occupational stress as

“possibly a minor risk factor.” Employer reasons that, by relying on such evidence, the

commission, in effect, precluded it from proving that it had overcome the statutory presumption

because it improperly imposed on employer “the burden of excluding the ‘possibility’ that job

stress may have been a contributing factor to heart disease.” Overbey, 254 Va. at 527, 492

S.E.2d at 634. Nothing in the record supports employer’s contention. Furthermore, as noted

above, the commission’s conclusion that the employer failed to rebut the statutory presumption is

founded on credible evidence. Under this Court’s standard of review, the decision of the

commission must therefore be affirmed.

          Finally, it bears noting that the only testimony arguably in favor of a finding that

employer had rebutted the presumption was that of Dr. Nygaard who stated that Martin’s job was

not a cause of his heart disease. However, the commission’s consideration of that testimony

must be evaluated in conjunction with the witness’ attendant explanation which identified the

basis for his opinion and which emphasized that nothing in the medical literature established a

causal relationship between occupation and heart disease, an opinion that we found improper in

Medlin. Viewing the evidence in the light most favorable to the employee, we affirm the

commission’s rejection of Dr. Nygaard’s testimony on the ground that the legislature “has

concluded that there is a causal link between stress and heart disease” and, therefore “it is not for

                                                  -8-
the commission or the courts to reconsider the issue.” Medlin, 34 Va. App. at 407, 542 S.E.2d at

38. For the reasons stated, we affirm the commission’s determination that employer failed to

overcome the statutory presumption in favor of Martin.

                            IV. Extent of Martin’s Disability Award

       Employer also contests the commission’s awards of the following periods of disability:

February 26, 1993 through May 9, 1993; July 19, 1993 through October 17, 1993; and

September 11, 1996 to the present. Martin contends that sufficient evidence of disability

supported the commission’s award. We agree that sufficient evidence supported the

commission’s award for disability from September 11, 1996 to the present, but we do not agree

that the award for disability prior to October 27, 1993 was proper.

           A. The Award of Disability Benefits from September 11, 1996 to the Present

       Employer contends that there was insufficient evidence proving Martin’s disability from

September 11, 1996 to the present. As stated above, when reviewing a sufficiency of the

evidence claim, our function is to determine whether credible evidence supports the

commission’s determination. Campbell, 7 Va. App. at 222, 372 S.E.2d at 415. Here, we find

that sufficient evidence supports the commission’s award from September 11, 1996 to the

present.

       The evidence shows that in August 1996, Martin developed severe chest pains. He

underwent repeat bypass surgery on September 17, 1996. Although reports subsequent to the

bypass surgery suggest that Martin was steadily recovering, he again complained of chest pains

in April 1997. On June 9, 1997, Dr. Van Dyke affirmatively indicated that Martin was disabled

from work as a deputy sheriff. On September 25, 1997, Dr. Van Dyke stated that Martin was

“severely debilitated due to left ventricular dysfunction.” No other reports were filed after 1997

which discuss Martin’s disability.

                                               -9-
       Employer contends the absence of evidence of Martin’s disability since 1997 invalidates

the commission’s decision to award disability benefits from September 1996 to the present. We

disagree because the medical evidence recited above constitutes credible evidence from which

the commission could conclude that Martin proved his disability for the periods claimed.8

Furthermore, notwithstanding the fact that the record was reopened on remand to the deputy

commissioner, employer did not present evidence in rebuttal of Martin’s claimed disability at

this final evidentiary hearing. Indeed, employer stipulated that the “Commission could enter its

award based upon the record already before the commission.” The employer cannot now be

heard to complain that the commission relied on the evidence before it in determining Martin’s

award. See Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367, 585 S.E.2d 578, 581

(2004); Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 636, 561 S.E.2d 663, 670

(2002). We find that sufficient evidence supports the commission’s award of disability, and we

will not disturb it on appeal.

                  B. The Award of Disability Benefits Prior to October 27, 1993

       Employer contends that the commission erred in awarding benefits prior to October 27,

1993. We agree.

       Code § 65.2-403(A) establishes that entitlement to compensation begins with the date of

“communication of the diagnosis of an occupational disease.” It further provides that medical

benefits shall not begin more than fifteen days before the date of the accident or communication

of the disease. Code § 65.2-403(B). Because no one communicated to Martin that his heart




       8
         Employer also contends that the evidence failed to establish that Martin marketed his
remaining work capacity. See Washington Metropolitan Transit Auth. v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 655 (1985). However, as noted supra, we find that the evidence supports
the commission’s conclusion that Martin was totally disabled. Therefore, no proof was needed
that Martin failed to market his remaining capacity.
                                              - 10 -
disease was an occupational disease, the commission determined that the “happening” of his

“injury by accident” should be computed from the date the complaint was filed.

       The finding that October 27, 1993—the date Martin filed his complaint—constituted the

date of the accident was a constant in this case. The commission approved that date as the date

of the accident in the following opinions: (1) the deputy commissioner’s opinion on December

24, 1997; (2) the deputy commissioner’s opinion issued on August 13, 1998; (3) the full

commission’s opinion issued April 17, 2002; and (4) the deputy commissioner’s opinion issued

April 25, 2002. Martin never appealed this particular finding.

       Nonetheless, in its June 4, 2003 opinion, the full commission reverted to the alternative

holding of the deputy commissioner on August 13, 1998, to support its view that disability

before October 27, 1993 had been proved and decided. This was clearly error, for if anything

had been decided, October 27, 1993 had been established as the date of Martin’s accident. The

commission therefore erred as a matter of law in awarding Martin disability benefits before

October 27, 1993 and medical benefits before October 12, 1993, in contravention of Code

§ 65.2-403(A)-(B). Accordingly, we reverse that portion of Martin’s award.

       For the foregoing reasons, we affirm in part and reverse in part the commission’s

decision of June 4, 2003, and remand for entry of an award consistent with this opinion.

                                             Affirmed in part, reversed in part, and remanded.




                                              - 11 -
McClanahan, J., concurring, in part, and dissenting, in part.

       I agree that our standard of review and the statutory presumption that was created when

the General Assembly enacted Code § 65.2-402 require that this Court affirm the commission’s

conclusion that the requisite connection between Martin’s heart disease and his employment

exists, and was not rebutted by the employer. Bass v. City of Richmond Police Dep’t, 258 Va.

103, 515 S.E.2d 557 (1999). I therefore concur in that judgment.

       I dissent, however, from the majority’s opinion regarding the extent of Martin’s disability

award. I believe that because Martin did not offer any evidence to show that he is totally

disabled and cannot work, the award of benefits from September 1996 to the present should be

vacated. See Code § 65.2-500; Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 112 S.E.2d 904

(1960); Allen v. S. Commercial Repair, Inc., 40 Va. App. 116, 578 S.E.2d 64 (2003). The only

evidence that was introduced regarding Martin’s disability as a result of his heart disease was

that on September 25, 1997, Dr. Van Dyke described Martin as “severely debilitated due to left

ventricular dysfunction.” This statement by Dr. Van Dyke does not offer an opinion regarding

either whether Martin was disabled from work or would be disabled from work in the future.

Martin offered no evidence that he is unable to work in other capacities or positions, or that he

has taken any steps to market his remaining skills.

       The burden to prove total and ongoing disability is Martin’s alone. See Washington

Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 600-02, 324 S.E. 2d 654, 655 (1985); Fuel

Co. v. Agee, 201 Va. 678, 112 S.E.2d 835 (1960). The award of compensation for the period

following September 11, 1996 should be struck for Martin’s failure to meet his burden.




                                               - 12 -
