Medlin v. County of Henrico Police

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia

JAMES ISAAC MEDLIN, JR.

v. Record No. 1047-00-2

COUNTY OF HENRICO POLICE OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
STEPHEN DOUGLAS VASS FEBRUARY 27, 2001

v. Record No. 1048-00-2

COUNTY OF HENRICO POLICE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Malcolm Parks (Maloney, Parks, Clarke &
Nathanson, P.C., on briefs), for appellants.

Ralph L. Whitt, Jr. (John T. Cornett, Jr.;
Williams, Lynch & Whitt, on briefs), for
appellee.

Appellants, James Isaac Medlin, Jr. and Stephen Douglas

Vass, Henrico County police officers, were diagnosed with heart

disease and filed for workers' compensation benefits. Following

separate hearings, each was awarded compensation. The employer

appealed to the full commission and the full commission reversed

both awards of the deputy commissioner and denied Medlin's and

Vass' claims. Medlin and Vass contend the full commission erred

∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
in finding that the employer had carried its burden of proving

in each case, by a preponderance of the evidence, that Medlin's

and Vass' work was not a proximate cause of their heart disease. 1

The employer responds that the commission properly found

the employer rebutted the Code § 65.2-402 presumption and that

Medlin and Vass both failed to prove, "by clear and convincing

evidence," that their heart disease arose out of and in the

course of their employment. See Code § 65.2-401.

For the following reasons, we reverse and remand both

cases.

I.

BACKGROUND

Medlin v. County of Henrico Police

Medlin, age fifty-three, began work as a police officer for

the County of Henrico on October 30, 1974 and continued to be

employed in that position at all times relevant to this case.

1
Medlin and Vass each particularize their claim of
evidentiary insufficiency, contending the commission erred: (1)
in finding that because certain medical witnesses testified that
Medlin's and Vass' employment contributed to the "development,
acceleration, or aggravation" of their disease, that Medlin's
and Vass' heart disease pre-existed their employment; (2) in
interpreting a physician's "inability to exclude work" as a
causal factor to mean that this statement implied nothing more
than a lack of knowledge or an admission that Medlin's and Vass'
work was only a "possible" cause of their disease; (3) in
discrediting the testimony of a medical expert on the basis that
he used the term "risk factor" rather than "cause"; and (4) in
focusing on "semantics" rather than rendering a plain and fair
interpretation of the evidence. Because we reverse both cases
on more general grounds, we decline to address each claimed

- 2 -
As required by his employer, he underwent a physical examination

in 1976. At that time Medlin was found to be free of heart

disease and hypertension.

In the course of his twenty-four-year career as a law

enforcement officer with the County, Medlin held "street duty"

positions for nineteen of those years and had administrative

assignments for the remaining five years. Medlin described the

numerous physically demanding and dangerous activities that his

job required, and stated that he found these activities to be

stressful. 2

On May 2, 1997, Medlin consulted his family physician, Dr.

Donald B. Longest, after experiencing some chest "tightness" and

shortness of breath while taking a walk. Dr. Longest ordered a

cardiac stress test and referred Medlin to a cardiologist.

Significant coronary artery blockages were found, and Medlin

underwent three-vessel coronary artery bypass grafting on May 5,

1997. Medlin was incapacitated from work from May 2, 1997 until

he was cleared to resume his police work on January 21, 1998.

One of Medlin's treating cardiologists, Dr. Robert M.

Bennett, noted after his initial consultation with Medlin that

he had several "cardiac risk factors," including high

error except those requiring resolution on remand.
2
Examples of the activities that Medlin found to be
stressful included chasing suspects, extracting people from auto
crashes, dealing with hostage situations, enduring gunfire,
taking the life of a suspect, and having officers under his
supervision die in the line of duty.

- 3 -
cholesterol, hypertension, and a family history which included a

father who had died of a heart attack at age forty-one or

forty-two, a brother who had bypass surgery at age forty-six,

and a mother who had bypass surgery at age seventy-nine. Dr.

Bennett and Dr. Bradford Matthews, another one of Medlin's

treating cardiologists, answered interrogatory-type questions in

which they indicated that they could not exclude Medlin's

work-related stress "as a contributing factor in the

development, acceleration and/or aggravation" of his heart

disease. Both doctors concluded that Medlin's heart disease was

"multi-factorial" and that it was "more probable than not" that

Medlin's employment contributed in some degree to his disease.

Cardiologist Dr. Richard A. Schwartz examined Medlin on

January 8, 1998 and reviewed his medical records. Dr. Schwartz

concluded that Medlin had several risk factors, including family

history, high cholesterol and occupational stress, and that "it

is more probable than not that Officer Medlin's work was a

contributing factor in the development of his heart disease."

Dr. Schwartz also submitted a supplemental report to which he

appended a chapter in a medical textbook published in 1998,

which linked stress to cardiovascular disease.

On December 3, 1997, Dr. Michael Hess examined Medlin at

the request of the employer. Dr. Hess met briefly with Medlin

but did not discuss with him the details of his employment. In

- 4 -
his deposition, Dr. Hess conceded that he knew nothing about the

dangers or physical and emotional demands of Medlin's job.

Rather, Dr. Hess concluded that, as a general matter, there is

no link between stress and heart disease. Specifically, he

stated, "[t]here is no evidence in the literature that stress or

work-related factors play any primary cause in the development

of coronary artery disease. Further there is absolutely no

evidence that employment as a police officer is a factor in

causing the coronary artery disease." Dr. Hess admitted that he

could not identify any authority that disproved the connection

between law enforcement work and hypertension but, rather, based

his opinion on what he perceived to be a lack of affirmative

proof of a connection. Dr. Hess concluded that Medlin's heart

disease was caused by family history, high cholesterol, and

hypertension. However, he also stated that "emotional stress on

the job can contribute to hypertension or aggravate

hypertension." Dr. Hess conceded that Medlin was free of heart

disease and hypertension when he began his employment with the

County and that Medlin's earliest elevated blood pressure

measurement was taken in 1990.

Dr. Mark Bladergroen, who performed the bypass surgery on

Medlin, answered the same interrogatory-type questions answered

by Drs. Bennett and Matthews. Dr. Bladergroen indicated that he

could exclude Medlin's work as a contributory factor in his

disease but then stated that the cause of Medlin's disease was

- 5 -
multi-factorial and that it was "unknown" whether it was more

probable than not that the demands and stresses of Medlin's work

as a police officer contributed to his heart disease.

Vass v. County of Henrico Police

Vass, age fifty-one, began his employment as a police

officer for Henrico County in 1974, and has worked in that

capacity ever since. In 1976, Vass' employer required him to

undergo a physical examination. He was found to be free of

heart disease and hypertension at that time.

In the course of his career as a law enforcement officer

for the County, Vass held a "uniform," or "front-line" position

for the first eight years. During that period, he was

concurrently assigned to the County's tactical squad, commonly

known as the "SWAT" team. Since 1982, Vass has been assigned to

the Investigative Section. Vass described numerous physically

demanding and dangerous activities that his job required and

stated that he found these activities to be stressful. 3

In February, 1997, Vass experienced back pain and two

episodes of shortness of breath. On February 11, 1997, he

visited his family physician, Dr. Richard Overmeyer, who

referred Vass to a cardiologist, Dr. Charles M. Zacharias. Dr.

3
Examples of the activities that Vass found to be stressful
included performing undercover work, being on-call
round-the-clock, witnessing horrific crimes and death scenes,
conveying news of persons' deaths to their families, chasing,
detaining and disarming suspects, and being shot at.

- 6 -
Zacharias diagnosed Vass with coronary artery disease and

performed a heart catheterization and coronary angioplasty.

Vass returned to work on March 17, 1997.

Vass' medical records indicate that in February, 1997, he

had several "risk factors," including high blood pressure, high

cholesterol, a history of cigarette smoking, and heart disease

suffered by two of his family members, an uncle and a cousin.

Vass' family physician, Dr. Overmeyer, answered

interrogatory-type questions in which he indicated that he could

not exclude Vass' work-related stress "as a contributing factor

in the development, acceleration and/or aggravation" of his

heart disease. Dr. Overmeyer concluded that Vass' heart disease

was "multi-factorial" and that it was "more probable than not"

that Vass' employment contributed in some degree to his disease.

Vass' cardiologist, Dr. Zacharias, answered the same

interrogatory-type questions answered by Dr. Overmeyer. Dr.

Zacharias indicated that Vass' disease was "multifactorial" and

that he could not exclude Vass' work as a contributing factor in

his disease. However, Dr. Zacharias answered "no" to the

question whether it was more probable than not that the demands

and stresses of Vass' work as a police officer contributed to

his heart disease.

Dr. Richard A. Schwartz reviewed Vass' medical records but

did not examine Vass. Dr. Schwartz concluded that "it is

probable that officer Vass' occupational risk factor was

- 7 -
contributory in that insofar as any risk factor is contributory

to the development of coronary artery disease" and that "[Vass']

occupational stress can be considered a contributing factor."

Drs. Michael Hess and Stuart Seides reviewed Vass' medical

records at the request of the employer but neither examined

Vass. Both doctors concluded that, as a general matter, there

is no link between stress and heart disease. Specifically, Dr.

Hess stated in his deposition, "I do not believe that stress

leads to the development of coronary artery disease," and he

agreed with the statement that "there is no persuasive evidence

that stress, in whatever form, contributes to the development of

coronary artery disease." Dr. Seides stated in his deposition

that "a person's occupation as a police officer . . . cannot in

any reasonable way be linked with the development of coronary

artery disease." Dr. Seides admitted that his opinion that

Vass' work did not contribute to his disease was based on what

Dr. Seides perceived to be a lack of affirmative proof of such a

causal connection.

II.

ANALYSIS

A.

Code § 65.2-402 Presumption – Prima Facie Case

In this matter of first impression before the Virginia

appellate courts, we address the question of whether testimony

which only generally refutes the existence of a causal

- 8 -
relationship between work-related stress and heart disease

rebuts the statutory presumption established under Code

§ 65.2-402(B). We hold that testimony of this nature is not

probative on the issue.

Code § 65.2-402(B) provides the following presumption in

certain workers' compensation cases:

Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of [various specified law
enforcement personnel] 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 statute requires that in order for the presumption to apply,

the employee must have undergone a pre-employment physical

examination, if requested by the employer, and must have been

found to be free of hypertension or heart disease at the time of

that examination. Code § 65.2-402(D).

Medlin proved that the presumption applied to him. He was

a member of the Henrico County Police Department at all times

relevant to this claim. Although Medlin began his employment

with the County in 1974, he was not asked to undergo a physical

examination until 1976. At the time of the examination, he was

found to be free of heart disease and hypertension. Finally,

Medlin was diagnosed with heart disease in May, 1998 and was

also found to be suffering from hypertension at that time.

- 9 -
 Likewise, Vass proved the presumption applied to him. Vass

has been employed by the Henrico County Police Department since

1974. In 1976, he was found to be free of heart disease and

hypertension following a physical examination conducted at the

direction of his employer. Finally, Vass was diagnosed with

hypertension and heart disease in February, 1997.

After the claimant establishes that he is entitled to the

presumption, the burden shifts to the employer to refute the

presumption. Fairfax County Fire and Rescue Dept. v. Mitchell,

14 Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992). The

employer must prove, by a preponderance of the evidence, two

factors: (1) a non-work-related cause for the heart disease;

and (2) that work was not a cause of the claimant's heart

disease. Bass v. City of Richmond Police Dept., 258 Va. 103,

112-13, 515 S.E.2d 557, 561-62 (1999).

Medlin conceded that, in addition to work-related causes,

there were non-work-related causes that contributed to his heart

disease. Vass likewise conceded that both work-related and

non-work-related causes contributed to his heart disease.

Therefore, because a non-work-related cause was established, the

remaining question is whether the employer proved, by a

preponderance of competent evidence, that the work that Medlin

and Vass performed as police officers did not contribute to

their heart disease.

- 10 -
 In finding that the employer had proved Medlin's work was

not a cause of his heart disease, the commission relied, in

part, on the testimony of Dr. Hess. Dr. Hess concluded that, as

a general matter, occupational stress does not cause heart

disease. In Vass' case, the commission relied, in part, on the

testimonies of Drs. Hess and Seides in finding the employer had

proved Vass' work was not a cause of his heart disease. Both

doctors testified that, as a general matter, occupational stress

is not linked to the development of heart disease. We find that

because of the legislatively created presumption to the

contrary, Dr. Hess' and Dr. Seides' opinions regarding the

relationship between occupational stress and heart disease were

of no probative value to the issues in these cases. See Page v.

City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978). 4

Code § 65.2-402 "has long been recognized as a remedial

statute, enacted by the legislature to overcome the difficulty

4
In Page the Supreme Court held:

[T]he doctor not only failed to give his
opinion as to the cause of [the employee's]
disabling disease, but he also failed to
state affirmatively that the evidence
disproved any causal connection between the
disease and [the employee's] occupation as a
fire fighter. [The employer's doctor]
merely reported that he had found no
evidence of such a connection. We hold that
this evidence is insufficient to rebut the
statutory presumption upon which [the
employee] was entitled to rely.

Page, 218 Va. at 847, 241 S.E.2d at 777.

- 11 -
that a [police officer] would otherwise have in proving

causation." City of Norfolk v. Lillard, 15 Va. App. 424, 430,

424 S.E.2d 243, 247 (1992). 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."

Fairfax County Fire and Rescue Services v. Newman, 222 Va. 535,

540, 281 S.E.2d 897, 900 (1981); see also Stephens v. Workmen's

Compensation Appeals Board, 20 Cal. App. 3d 461, 465 (Cal. Ct.

App. 1971); Robertson v. North Dakota Workers' Compensation

Bureau, 616 N.W.2d 844, 854 (N.D. 2000); Sperbeck v. Dept. of

Industry, Labor & Human Relations, 174 N.W.2d 546, 548 (Wis.

1970). 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. See Stephens, 20 Cal. App. 3d at

465; Linnell v. City of St. Louis Park, 305 N.W.2d 599, 601

(Minn. 1981); Cunningham v. City of Manchester Fire Dept., 525

A.2d 714, 718 (N.H. 1987); Robertson, 616 N.W.2d at 854.

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,

- 12 -
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." Stephens, 20 Cal. App. 3d at 467;

Swanson v. City of St. Paul, 526 N.W.2d 366, 368 (Minn. 1995);

Cunningham, 525 A.2d at 718; Robertson, 616 N.W.2d at 854.

Stated otherwise, the employer may not, in effect, "repeal" the

statute "by seeking out a doctor whose beliefs preclude its

possible application." Stephens, 20 Cal. App. 3d at 467; see

also Linnell, 305 N.W.2d at 601; Sperbeck, 174 N.W.2d at 289.

In Sperbeck, the court noted that "[e]vidence which only attacks

the rationale of the statute . . . does nothing more than

question the wisdom of the legislature." Sperbeck, 174 N.W.2d

at 289. If the majority of the medical community concludes

there is no link between stress and heart disease, the

employer's remedy is to go back to the General Assembly.

Sperbeck, 174 N.W.2d at 289. 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. 5 The commission therefore erred when

5
The employer argues that if we find no probative value in
this type of evidence, then the presumption will be irrebuttable.
We disagree. Although irrebuttable presumptions are
unconstitutional, Newman, 222 Va. at 540, 281 S.E.2d at 900, the
employer can rebut the Code § 65.2-402 presumption without
attacking the underlying legitimacy of the presumption itself.
See, e.g., Stephens, 20 Cal. App. 3d at 468; Linnell, 305 N.W.2d

- 13 -
it relied, in part, on the testimonies of Dr. Hess and Dr.

Seides, which did no more than refute the conclusion of the

Virginia General Assembly.

Because the weight the commission assigned to Dr. Hess' and

Dr. Seides' opinions in reaching its decisions is unclear, we

remand both cases to the commission to determine whether the

employer has sufficiently rebutted the presumption in light of

the remaining probative evidence in these cases. See Virginia

Dept. of State Police v. Talbert, 1 Va. App. 250, 253, 337

S.E.2d 307, 308 (1985) ("We do not review the weight or

preponderance of the evidence nor the credibility of the

witnesses, except to consider whether there exists sufficient

credible evidence to sustain the findings.").

B.

Remaining Issues

Because two issues will likely arise again on remand, we

will address them here. Both Medlin and Vass contend the

commission erred, as a matter of law, in discrediting Dr.

Schwartz's opinion because he used the term "risk factor"

instead of "cause."

In determining the appropriate weight to assign Dr.

Schwartz's opinion in both cases, the commission cited our

decision in City of Portsmouth Sheriff's Dept. v. Clark, 30 Va.

at 601; Worden v. County of Houston, 356 N.W.2d 693, 695 (Minn.
1984).

- 14 -
App. 545, 518 S.E.2d 342 (1999). In Portsmouth, we held that

proof of a "risk factor" alone does not establish a

non-work-related cause for a claimant's heart disease.

Portsmouth, 30 Va. App. at 554, 518 S.E.2d at 346. We found

that the employer in that case had failed to prove that the

claimant's family history risk factor actually caused his

disease. Id.

Medlin contends the commission misapprehended Dr.

Schwartz's use of the term "risk factor." He argues Dr.

Schwartz considered risk factors to be the causative factors of

Medlin's disease. We disagree.

We cannot say, as a matter of law, that Dr. Schwartz's

report clearly establishes his intent to equate the two terms,

or that he gave a clearly-stated opinion that Medlin's

occupational stress was a risk factor that, in fact, caused his

heart disease. 6 Dr. Schwartz states, as a general proposition,

6
In his report, Dr. Schwartz stated:

Mr. Medlin's coronary artery disease is
clearly multifactorial. Included in these
factors is occupational stress, in this
case, police work. . . . There is no way to
exclude work-related stress as a risk factor
in the development of coronary artery
disease nor is there any way of including or
eliminating any other risk factor. These
are correlative findings. It is more
probable than not that Officer Medlin's work
was a contributing factor in the development
of his heart disease insofar as any risk
factors, including family history, cigarette

- 15 -
that no risk factor may be excluded in the development of

coronary artery disease and that they are all correlative. 7

However, he does not opine which if any of the risk factors was

causally related to Medlin's disease. See Portsmouth, 30 Va.

App. at 554, 518 S.E.2d at 346. Furthermore, although he states

that Medlin's work "is more probable than not . . . a

contributing factor in the development of his heart disease,"

the import of the opinion is ambiguous given his caveat that it

applies only "insofar as any risk factors . . . can be considered

as contributory factors . . . ." When Dr. Schwartz's opinion is

viewed in relation to the testimony given by Dr. Hess, we cannot

smoking, hypertension, etc., can be
considered as contributory
factors. . . . All risk factors, including
occupational stress, are correlative.
7
Dr. Schwartz's use of the term "correlative" is ambiguous
and does not compel a finding that he used the term "risk
factor" interchangeably with the term "cause." The terms
"correlate," "correlated," and "correlative" have various
meanings. For example, "correlate" may mean: "either of two
things so related that one directly implies or is complementary
to the other," "to bear reciprocal or mutual relations," or
"relate as necessary or invariable accompaniments with or
without the implication of causality." Webster's Third New
International Dictionary 511 (1993) (emphasis added).
"Correlated" may mean: "closely, systematically, or
reciprocally related," or "related as a universal accompaniment
whether causally connected or not." Id. (emphasis added).
Finally, the term "correlative" could mean "naturally related,"
or "having, indicating, or involving a reciprocal relation."
Id. Thus, use of the term "correlative," itself, does not
necessarily indicate a causal relationship between two items.
Furthermore, in using the term "correlative," Dr. Schwartz does
not indicate whether he is referring to the relationship between
various risk factors or to the relationship between a given risk
factor and Medlin's heart disease.

- 16 -
conclude that the commission erred in giving Dr. Schwartz's

opinion less weight. Dr. Hess stated that there were three risk

factors in Medlin's case that actually "caused" his disease: his

family history, hypertension and high cholesterol. The

resolution of the factual dispute which the two conflicting

opinions gave rise to was within the province of the commission.

See Metro Machine Corp. v. Lamb, 33 Va. App. 187, 195, 532

S.E.2d 337, 340 (2000) ("[T]he resolution of medical opinion is

a question of fact."); Ogden Aviation Services v. Saghy, 32 Va.

App. 89, 101, 526 S.E.2d 756, 762 (2000); Dollar General Store

v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996)

("We will not substitute our judgment for that of the trier of

fact . . . .").

In Vass' case, however, we find that the commission erred

in its application of our holding in Portsmouth. Contrary to

the commission's conclusion that "Dr. Schwartz speaks only of

'risk factors,'" the record shows that in Vass' case, Dr.

Schwartz opined that Vass' occupational stress was a risk factor

that "can be considered a contributing factor" in the

development of his disability. 8 Because it erroneously applied

8
In one report Dr. Schwartz stated:

Precise etiologic cause of coronary artery
disease is not known. It is a
multifactorial process that has associated
with it certain well known risk factors. One
of these risk factors is clearly occupational
stress and the duties of a police officer
would certainly fulfill that criteria.

- 17 -
our holding in Portsmouth, the commission did not consider what

weight, if any, it would accord Dr. Schwartz's opinion, as it is

required to do. Hungerford Mechanical Corp. v. Hobson, 11 Va.

App. 675, 677, 401 S.E.2d 213, 215 (1991) ("Medical evidence is

not necessarily conclusive, but is subject to the commission's

consideration and weighing."). On remand, the commission will

have to reconsider Dr. Schwartz's opinion, together with all the

remaining evidence in this case, in light of this holding.

Medlin next contends the commission erred, as a matter of

law, in concluding that because Drs. Bennett and Matthews stated

that Medlin's work was a contributing factor in "the

development, acceleration and/or aggravation" of Medlin's heart

Importantly, the effect of various risk
factors cannot be apportioned among them when
multiple factors exist. Therefore, it is
probable that officer Vass' occupational risk
factor was contributory in that insofar as
any risk factor is contributory to the
development of coronary artery
disease. . . . [O]n the other hand the way
in which risk factors operate is still open
to debate.

In a second report Dr. Schwartz stated:

[M]ore probably than not, Mr. Vass'
occupation as a law enforcement officer was
a risk factor. As in the case of other risk
factors, there is a correlative "cause" in
the development of heart disease. Finally,
insofar as his heart disease was a cause of
Mr. Vass' temporary disability from
employment, his occupational stress can be
considered a contributing factor.

(Emphasis added).

- 18 -
disease, that the disease must have pre-existed his employment.

Vass makes the same contention with respect to the commission's

treatment of Dr. Overmeyer's opinion. We agree with both Medlin

and Vass.

In both opinions, the commission cited Ashland Oil Co. v.

Bean, 225 Va. 1, 300 S.E.2d 739 (1983), for the proposition that

"[i]f work merely aggravates a disease, then the disease must

have pre-existed the employment. Work, then, could not have

been the originating cause of the disease, and the aggravation

would not be compensable as an occupational disease." While the

Virginia Supreme Court held in Ashland Oil that an employee

cannot recover "for aggravation of ordinary diseases of life,"

id. at 3, 300 S.E.2d at 740, the evidence in that case showed

that the employee had a bunion before she began working and that

her job merely aggravated the pre-existing condition. Id. at 2,

300 S.E.2d at 739. The Court concluded that "it was not an

occupational disease, and only disabilities resulting from

occupational diseases are compensable." Id. at 3, 300 S.E.2d at

740.

Here, the uncontroverted evidence showed that Medlin and

Vass began their employment in 1974 and were found to be free of

heart disease and hypertension in 1976, following a physical

examination conducted at the direction of the County.

Therefore, Medlin's and Vass' conditions did not pre-exist their

employment. In addition, the Code § 65.2-402 presumption

- 19 -
provides that if the employee can prove he was free of heart

disease or hypertension at the beginning of his employment, his

disease will be presumed to be an occupational disease.

Therefore, we find the commission erred, as a matter of law, in

misinterpreting Ashland Oil, and in concluding that Medlin's and

Vass' disease pre-existed their employment.

Because we find the commission improperly considered Dr.

Hess' and Dr. Seides' opinions in reaching its decisions, we

remand both cases to the commission for reconsideration of the

remaining evidence. 9

Reversed and remanded.

9
Because we remand for reconsideration of the issue of
whether the employer rebutted the Code § 65.2-402 presumption,
we need not consider the employer's contention that Medlin and
Vass failed to establish an ordinary disease of life claim. Cf.
Augusta County Sheriff's Dept. v. Overbey, 254 Va. 522, 527, 492
S.E.2d 631, 634 (1997) (if employer rebuts presumption, burden
shifts to employee to "'establish[] by clear and convincing
evidence, to a reasonable medical certainty,' that his heart
disease arose out of and in the course of his employment"
(quoting Code § 65.2-401 (amended 1997))).

- 20 -