                       COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


JOHN B. PATTON, JR.
                                                    OPINION BY
v.      Record No. 1055-00-4               JUDGE JEAN HARRISON CLEMENTS
                                                 AUGUST 28, 2001
LOUDOUN COUNTY BOARD OF SUPERVISORS


             FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

               Susan A. Evans (Jimese Pendergraft Sherrill;
               Siciliano, Ellis, Dyer & Boccarosse, on
               brief), for appellee.


        John B. Patton, Jr., contends the Workers' Compensation

Commission erred in ruling that his employer, the Loudoun County

Board of Supervisors, presented sufficient competent evidence to

rebut the presumption under Code § 65.2-402(B) that his heart

disease was an occupational disease suffered in the line of

duty.       We agree and reverse and remand this case.

        As a preliminary matter, Patton contends the commission

exceeded the scope of the Supreme Court's remand order 1 and

violated the law of the case by reaching a different conclusion

on remand.       We disagree.   The Supreme Court specifically ordered


        1
       Technically, the remand order was ours. The Supreme
Court, after reversing our earlier judgment in this matter,
remanded the case to us for remand to the commission.
that the case be remanded to the commission "to reconsider the

evidence presented in accordance with the principles expressed

in" the Supreme Court's opinion in Bass v. City of Richmond

Police Department, 258 Va. 103, 515 S.E.2d 557 (1999).      The

commission did exactly that.    It reevaluated the evidence,

applying the correct legal standards expressly set forth in

Bass, and reached a decision contrary to its earlier decision.

We conclude, upon our review of the record, that the commission,

in reassessing the evidence and making appropriate findings of

fact in accordance with the directive of the Supreme Court, did

not exceed the Supreme Court's mandate or violate the law of the

case.

        Patton further contends the commission improperly concluded

that his employer presented sufficient evidence to overcome the

occupational disease presumption established in Code

§ 65.2-402(B) of the Workers' Compensation Act.

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

                  Hypertension or heart disease causing
             the death of, or any health condition or
             impairment resulting in total or partial
             disability of . . . salaried or volunteer
             firefighters [and] . . . 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.

        In order to rebut the presumption established by Code

§ 65.2-402(B), "the employer must show, by a preponderance of

                                 - 2 -
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

562-63.   Hence, "if the employer does not prove by a

preponderance of the evidence both parts of this two-part test,

the employer has failed to overcome the statutory presumption."

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

     Here, the evidence established that Patton worked

continuously for Loudoun County since the age of eighteen, the

first five years as a firefighter and then as a deputy sheriff.

In 1994, at the age of thirty-eight, he suffered an inferior

myocardial infarction while investigating a criminal matter.

     According to Dr. Carey M. Marder, Patton's treating

cardiologist, the cause of the heart attack "was a thrombus in

the right coronary artery."   He added:

           How much of this is related to the stress of
           a 2nd Lieutenant's job is difficult to say
           . . . . Stress as an independent risk
           factor is very difficult to quantitate.
           Certainly, however, I would consider John to
           have been in a considerably higher risk due
           to his other cardiac risk factors.

     Dr. Stuart F. Seides, a cardiologist who, at the request of

Patton's employer, examined Patton and reviewed some of his

medical records, noted that Patton was found shortly after the

heart attack to have "multi-vessel coronary atherosclerosis with

critical obstruction of the 'culprit' right coronary artery."



                                 - 3 -
Dr. Seides further noted that Patton's "symptom onset did occur

in the setting of his patrol duties," but added that

          it is highly likely that the myocardial
          infarction would have occurred in or around
          the same time frame regardless of his
          activities. Although "stress" is often
          considered to be an important trigger for
          myocardial infarction, most infarcts occur
          in the absence of an identifiable
          environmental event and in those cases where
          there is an apparent association, it may be
          simple coincidence. What is most important
          is the presence of the underlying
          substraight of atherosclerosis which is a
          multifactorial process developing over a
          period of many years in the setting of the
          risk factors outlined in this case. The
          relationship of occupation to the
          development of atherosclerosis is virtually
          nil.

     Dr. Richard A. Schwartz, who, at Patton's request, examined

Patton, obtained a history from him and reviewed some of his

medical records, noted, in addressing Patton's coronary artery

disease, that, "[i]n this patient, occupational stress,

hypertension, and possibly diabetes are identifiable factors."

He continued:

               Occupational stress is one of the risk
          factors. It cannot be excluded with respect
          to this patient. There are no congenital or
          genetic causes that can be identified
          either.

               In summary, then Mr. Patton has
          coronary artery disease that developed in
          the course of his employment. This is a
          multifactorial process and multiple factors
          were present in this patient. None can be
          specifically implicated or excluded.



                              - 4 -
     Upon reviewing the evidence on remand, the commission ruled

as follows:

                In the present matter, we conclude that
          the employer has rebutted the Code
          § 65.2-402 presumption. Admittedly, the
          claimant's job was undeniably stressful.
          The medical evidence, however, establishes
          non-work related causes of the claimant's
          heart disease, and establishes that the
          claimant's disease was not caused by his
          employment. Specifically, Dr. Seides opined
          that the claimant's "relatively advanced
          coronary atherosclerosis [was] caused by the
          multiple aforementioned factors" including
          diabetes mellitus, hypercholesterolemia, a
          family history of premature coronary
          disease, and a history of cigarette smoking.
          Dr. Seides also opined that the
          "relationship of occupation to the
          development of atherosclerosis is virtually
          nil."

          *      *      *      *      *      *      *

               We have carefully considered the fact
          that Dr. Seides is not a treating physician,
          and that he was not aware of the details of
          the claimant's stressful job environment.
          Nevertheless, his is the only physician to
          have expressed a definite opinion of the
          cause of the claimant's heart disease. His
          opinion is logical in light of the numerous
          non-work related factors acknowledged by the
          other physicians. Accordingly, we conclude
          that the employer has established by a
          preponderance of the evidence non-work
          related causes of the disease, and that work
          was not a cause of the disease.

     However, subsequent to the commission's reconsideration of

the evidence in this case on remand, we held as follows:

               Code § 65.2-402 "has long been
          recognized as a remedial statute, enacted by
          the legislature to overcome the difficulty
          that a [police officer] would otherwise have

                              - 5 -
            in proving causation." In enacting the
            statute, "[t]he legislature knew that the
            causes of . . . cardiac diseases are unknown
            and that the medical community is split
            regarding the impact of stress and work
            environment on these diseases." 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 32, 38-39 (2001) (alterations in original) (citations

omitted).

     We recently applied our holding in Medlin to Dr. Seides'

medical opinion in Bristol City Fire Dep't and Virginia Mun.

Group Self-Ins. Ass'n v. Maine, 35 Va. App. 109, 542 S.E.2d 822

(2001).   In that case, Dr. Seides opined regarding the claimant

firefighter's heart disease as follows:



                                - 6 -
                 Mr. Maine has coronary atherosclerosis
            with obstructive coronary artery disease and
            a documented myocardial infarction. The
            cause of the condition is a progressive
            build-up of cholesterol-containing
            atherosclerotic plaque in the coronary
            arteries which surround the heart and
            provide the heart muscle with blood.
            Coronary atherosclerosis is a multifactorial
            disease, in which a number of risk factors
            may play a role in accelerating the
            deposition of plaque material in
            constitutionally susceptible individuals.
            . . . His employment as a firefighter had
            nothing whatsoever to do with the genesis of
            either his underlying coronary
            atherosclerosis or his myocardial
            infarction. Any attempt to associate his
            occupation and his disease is without
            scientific merit.

Id. at 115, 542 S.E.2d at 825.    We concluded that, under Medlin,

Dr. Seides' opinion did not constitute probative evidence for

purposes of rebutting the presumption of Code § 65.2-402 because

it "simply attempt[ed] to discount the presumption of Code

§ 65.2-402, rather than evaluat[e] whether work was a cause or

risk factor of the heart disease."       Id. at 117, 542 S.E.2d at

826.

       In this case, the commission relied wholly upon Dr. Seides'

medical opinion that the "relationship of occupation to the

development of atherosclerosis is virtually nil" to conclude

that Patton's heart disease was not caused by his employment.

That opinion, however, like Dr. Seides' opinion in Maine, merely

rebuts generally the underlying premise of Code § 65.2-402(B),

which establishes the presumptive causal link between


                                 - 7 -
occupational stress and heart disease.   Accordingly, Dr. Seides'

opinion that the "relationship of occupation to the development

of atherosclerosis is virtually nil" is not probative evidence

for purposes of overcoming the presumption of Code § 65.2-402,

and the commission erred in relying on it.

     Disregarding that evidence, we cannot conclude that the

employer has rebutted the presumption.   Hence, we reverse the

commission's decision and remand this case "to the commission to

determine whether the employer has sufficiently rebutted the

presumption in light of the remaining probative evidence."

Medlin, 34 Va. App. at 408, 542 S.E.2d at 39.

                                             Reversed and remanded.




                              - 8 -
Willis, J., dissenting.

     The commission's factual findings, if supported by credible

evidence, are binding.    Jules Hairstylists, Inc. v. Galanes, 1 Va.

App. 64, 334 S.E.2d 592 (1985).

     Dr. Stuart Seides, a cardiologist, after reviewing Patton's

medical records and examining him, reported, in pertinent part:

          Mr. Patton has multiple risk factors for the
          development of coronary heart disease. He
          has documented hypertension, non-insulin
          dependent diabetes mellitus,
          hypercholesterolemia, a family history of
          premature coronary heart disease . . . , and
          previous tobacco abuse . . . . [H]e was
          found to have multi-vessel coronary
          atherosclerosis with critical obstruction of
          the "culprit" right coronary artery . . . ,
          but also well developed atherosclerotic
          placquing in the left anterior descending
          and left circumflex systems. . . . Mr.
          Patton had relatively advanced coronary
          atherosclerosis caused by the multiple
          aforementioned factors. . . . [I]t is highly
          likely that the myocardial infarction would
          have occurred in or around the same time
          frame regardless of his activities.
          Although "stress" is often considered to be
          an important trigger for myocardial
          infarction, most infarcts occur in the
          absence of an identifiable environmental
          event and in those cases where there is an
          apparent association, it may be simple
          coincidence. What is most important is the
          presence of the underlying substraight [sic]
          of atherosclerosis which is a multifactorial
          process developing over a period of many
          years in the setting of the risk factors
          outlined in this case. The relationship of
          occupation to the development of
          atherosclerosis is virtually nil.




                                - 9 -
        The commission held:

             We have carefully considered the fact that
             Dr. Seides is not a treating physician, and
             that he was not aware of the details of
             [Patton's] stressful job environment.
             Nevertheless, he is the only physician to
             have expressed a definite opinion of the
             cause of [Patton's] heart disease. His
             opinion is logical in light of the numerous
             non-work related factors acknowledged by the
             other physicians. Accordingly, we conclude
             that the employer has established by a
             preponderance of the evidence non-work
             related causes of the disease, and that work
             was not a cause of the disease.

This factual finding is supported by Dr. Seides' report.    As it

was entitled to do, the commission believed Dr. Seides and gave

his findings and conclusions preponderating evidentiary weight.

The issue on appeal is whether those findings and conclusions,

so weighed, are sufficient to rebut the presumption set forth in

Code § 65.2-402.

        The majority relies on Medlin v. County of Henrico Police,

34 Va. App. 396, 542 S.E.2d 32 (2001).    In Medlin, we said:

             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.

Id. at 407, 542 S.E.2d at 39 (emphasis added).

        Dr. Seides' salient findings and conclusions may be stated

thus:




                                - 10 -
     (1) Patton's coronary disease was caused exclusively by his

multi-vessel coronary atherosclerosis and did not derive from

any other cause.

     (2) Patton's atherosclerosis did not derive from his

employment.

     (3) Patton's atherosclerosis derived altogether from the

non-employment-related factors described in Dr. Seides' report.

     In my view, Dr. Seides' report was not merely a general

rebuttal of the statutory presumption, but was, rather, a

specific attribution of Patton's coronary disease exclusively to

non-employment-related factors, satisfying the holding in Medlin

and sufficiently supporting the commission's decision.

     I would affirm the judgment of the commission.




                             - 11 -
