                               COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia


SHAWN L. COBLE
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1943-10-2                                    JUDGE CLEO E. POWELL
                                                                  MARCH 29, 2011
HENRICO (COUNTY OF) FIRE


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Gregory S. Hooe (Marks & Harrison, P.C., on brief), for appellant.

                 Ralph L. Whitt, Jr. (Corey R. Pollard; Whitt & Del Bueno, PC, on
                 brief), for appellee.


       Shawn L. Coble appeals a decision of the Workers’ Compensation Commission (“the

commission”) denying him benefits. He argues that the full commission erred in finding that the

testimony of Doctors Hagemann, Zambrana, and Bui rebutted the presumption found in Code

§ 65.2-402. For the reasons that follow, we affirm the commission’s decision.

                                        I. BACKGROUND

       Coble became a Henrico County firefighter and paramedic in May of 2004. 1 Coble’s

primary care physician had previously diagnosed him with diabetes and hypertension on March

30, 2004. Coble also had cholesterol problems prior to being hired as a firefighter.

       On August 31, 2007, he was at work when he began to feel ill and was brought to the

hospital. There, Dr. Hagemann, a cardiologist, diagnosed Coble with one vessel of his heart

being severely occluded. He performed a cardiac catheterization and placed a stent in the


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
        Coble previously worked as a Henrico County police officer, a Capitol police officer,
and a Henrico County paramedic.
occluded vessel. Coble also had evidence of build-up in other arteries but to a lesser extent.

After being released from the hospital, Coble continued his aftercare with Dr. Hagemann.

According to Dr. Hagemann, Coble was at risk for heart disease because he has diabetes and

dyslipidemia. 2 In response to a questionnaire that asked whether in his opinion “it is more

probable than not that the demands and stress in the employment of Mr. Coble as a firefighter

with Henrico County Division of Fire is contributory in more than a trivial or insignificant

degree to the development of his heart disease[,]” Dr. Hagemann answered no. He explained

that he could not state whether occupational stress provided more than a trivial contribution to

Coble’s heart disease and he could not quantify the effect that any stress may have had.

Dr. Hagemann also testified that he was unable to say that stress played no role. He also stated

that he considered Coble’s diabetes and dyslipidemia as the causative agents for Coble’s heart

disease more so than occupational stress. Dr. Hagemann was unaware of Coble having

hypertension. He testified that diabetes combined with dyslipidemia would be sufficient to cause

heart disease. Dr. Hagemann opined that Coble’s heart disease was caused by dyslipidemia and

uncontrolled diabetes mellitus caused by not taking his diabetes medication.

       Dr. Bui began treating Coble on June 13, 2008. He testified that he could not exclude

Coble’s employment as a firefighter as a possible contributing factor to his heart disease.

Specifically, Dr. Bui testified that “coronary artery diseases are caused by many different factors.

There’s not one single factor. And stress is one of the most difficult things that we can say

whether it can cause or it can contribute to the coronary heart disease. . . . [W]e cannot exclude

it as such.” Dr. Bui further stated that he was unsure whether occupational stress was a

contributing factor to the development of Coble’s heart disease. He testified that research has

shown that stress can aggravate heart disease.


       2
           Dyslipidemia means that Coble’s good cholesterol level was low.
                                              -2-
       In a questionnaire, Dr. Zambrana, Coble’s primary care physician, agreed that he

believed that diabetes, hypertension, obesity, dyslipidemia, and lack of exercise caused Coble’s

heart disease. Dr. Zambrana did not indicate that Coble’s job played any role. Indeed, when

specifically asked in another questionnaire if he had communicated to Coble that his

hypertension and/or cardiac disease may have been related to his employment, Dr. Zambrana

said “no.”

       In response to this evidence, Deputy Commissioner Bruner found that uncontroverted

evidence proved that Coble was a Henrico County firefighter at the time he developed heart

disease. As such, the employer bore the burden to overcome the presumption in Code

§ 65.2-402(B) by a preponderance of competent evidence. To do so, Deputy Commissioner

Bruner held that the employer must prove that 1) Coble’s disease was not caused by his

employment, and 2) there was a non-work-related cause of the disease. The deputy

commissioner held that the employer failed to satisfy this burden because the doctors could not

exclude occupational stress as a possible factor in Coble’s heart disease.

       On review, the commission held that Augusta Co. Sheriff’s Dept. v. Overby, 254 Va.

522, 492 S.E.2d 631 (1997), controlled the disposition of this case. As such, the commission

found that when the doctors’ depositions and questionnaire responses were considered together,

the evidence proved that although the doctors were unable to exclude the possibility that Coble’s

heart disease was work-related, “a fair reading of their medical records and depositions

indicate[d] that in their opinions, [Coble’s] employment was probably not a cause of his heart

disease.” The commission further found that the doctors provided evidence that Coble’s heart

disease was caused by atherosclerosis, uncontrolled diabetes mellitus, obesity, and

hyperlipidemia. Thus, the commission found that the employer rebutted the presumption and

reversed the deputy commissioner’s award. This appeal follows.

                                               -3-
                                          II. ANALYSIS

       “On appeal, we view the evidence in the light most favorable to the prevailing party

before the commission.” Central Va. Obstetrics & Gynecology Assoc., P.C. v. Whitfield, 42

Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). “And while we conduct a de novo review of

legal issues on matters arising from the commission, ‘we give great weight to the commission’s

construction of the [Worker’s Compensation] Act, and we defer to the commission’s factual

findings if supported by credible evidence in the record.’” Masonite Holdings, Inc. v. Cubbage,

53 Va. App. 13, 19-20, 668 S.E.2d 809, 812 (2008).

       Code § 65.2-402(B) provides that hypertension or heart disease causing total or partial

disability to a firefighter “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.”

               To 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. See [Fire & Rescue Servs.
               v.] Newman, 222 Va. [535,] 539, 281 S.E.2d [897,] 899-900
               [(1981)]; Page [v. City of Richmond], 218 Va. [844,] 847-48, 241
               S.E.2d [775,] 777 [(1978)]. Thus, 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.

Bass v. City of Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 562-63 (1999). The

commission, in its role as fact finder, is tasked with determining whether the employer has met

this burden. Id. at 114, 515 S.E.2d at 563.

               In this role, the Commission resolves all conflicts in the evidence
               and determines the weight to be accorded the various evidentiary
               submissions. “The award of the Commission . . . shall be
               conclusive and binding as to all questions of fact.” Code
               § 65.2-706(A); Falls Church Constr. Co. v. Laidler, 254 Va. 474,




                                                -4-
               478-79, 493 S.E.2d 521, 524 (1997); Ivey v. Puckett Constr. Co.,
               230 Va. 486, 488, 338 S.E.2d 640, 641 (1986).

Id.

                       On appeal from this determination, the reviewing court
               must assess whether there is credible evidence to support the
               Commission’s award. Celanese Fibers Co. v. Johnson, 229 Va.
               117, 121, 326 S.E.2d 687, 690 (1985); Hercules, Inc. v. Gunther,
               13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). Thus, unlike
               the Commission, the reviewing court is not charged with
               determining anew whether the employer’s evidence of causation
               should be accorded sufficient weight to constitute a preponderance
               of the evidence on that issue. See Celanese Fibers Co., 229 Va. at
               121, 326 S.E.2d at 690; Caskey v. Dan River Mills, Inc., 225 Va.
               405, 411, 302 S.E.2d 507, 510-11 (1983); Macica v. ARA Servs.
               Tidewater Vending, 26 Va. App. 36, 41, 492 S.E.2d 843, 846
               (1997); Shawnee Management Corp. v. Hamilton, 25 Va. App.
               672, 679, 492 S.E.2d 456, 459 (1997).

Id. at 115, 515 S.E.2d at 563.

       In Overby, 254 Va. at 525, 492 S.E.2d at 633, the evidence proved that claimant had a

number of risk factors for a heart attack, including a history of heavy smoking, elevated

cholesterol, a family history of heart trouble, and diabetes. The doctor admitted that

occupational stress could have contributed to claimant’s heart attack. Id. There, the Court held

that an employer is not required to “exclud[e] the ‘possibility’ that job stress may have been a

contributing factor to heart disease” and that the employer’s evidence in Overby was sufficient to

rebut the presumption. Id. at 527, 492 S.E.2d at 634.

       Here, the commission found that when the doctors’ depositions and questionnaire

responses were considered together, the evidence proved that although the doctors were unable

to exclude the possibility that Coble’s heart disease was work-related, “a fair reading of their

medical records and depositions indicate[d] that in their opinions, [Coble’s] employment was

probably not a cause of his heart disease.” Thus, in the commission’s view, the evidence

satisfied the first prong that the evidence prove that the claimant’s disease not be caused by his

                                                -5-
employment. Bass, 258 Va. at 114, 515 S.E.2d at 562. The commission further found that the

doctors provided evidence that Coble’s heart disease was caused by atherosclerosis, uncontrolled

diabetes mellitus, obesity, and hyperlipidemia. The commission concluded that this evidence

satisfied the second prong: that there be a non-work-related cause of claimant’s disease. Id. at

114, 515 S.E.2d at 562-63. As a “reviewing court is not charged with determining anew whether

the employer’s evidence of causation should be accorded sufficient weight to constitute a

preponderance of the evidence on that issue[,]” id. at 115, 515 S.E.2d at 563, we are bound by

the commission’s decision where credible evidence in the record supports the determination.

Here, the record does.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the commission’s decision that the employer

overcame the presumption in Code § 65.2-402(B).

                                                                                        Affirmed.




                                               -6-
