COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WASHINGTON COUNTY SHERIFF'S DEPARTMENT
AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1187-96-3 NOVEMBER 26, 1996
ROBERT CHARLES TURNER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John P. Grove; Frank K. Friedman; Woods,
Rogers & Hazlegrove, on briefs), for
appellants.
(Lawrence L. Moise, III; Vinyard & Moise, on
brief), for appellee.
Washington County Sheriff's Department and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in finding that
employer's evidence failed to rebut the statutory presumption
that Robert Charles Turner's heart attack was occupational. Code
§ 65.2-402(B). Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
Turner began working for employer as a deputy sheriff
beginning in 1977. In October 1994, employer assigned Turner the
job of jail administrator, making him responsible for all aspects
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of the day-to-day operations of the Washington County Jail.
Turner testified that during the fall of 1994, he was under more
stress than usual because he had to learn how to run the jail
without much assistance. On December 27, 1994, Turner suffered a
myocardial infarction.
Dr. Clair Hixon, a cardiologist, examined Turner after his
myocardial infarction and diagnosed Turner as suffering from
coronary artery disease. Dr. Hixon testified that Turner's risk
factors for developing coronary artery disease included his age,
his sex, a thirty-five-year history of heavy cigarette smoking,
elevated cholesterol levels, and a history of an elevated blood
sugar level. Dr. Hixon opined that Turner's most important risk
factor was probably his long history of cigarette smoking.
Dr. Hixon testified that stress has been implicated as a
risk factor in developing heart disease, but that it is difficult
to quantify its contribution to an individual's condition. He
did not discuss stress with Turner and could not exclude or
include occupational stress as a risk factor related to Turner's
heart attack. Dr. Hixon testified, however, that stress is not a
primary cause of coronary artery disease in light of other more
important risk factors. Moreover, he admitted that he and Turner
did not discuss Turner's specific job duties or any stress that
might have been involved with his job.
Dr. Adam Steinberg, an internist, wrote that Turner's
occupation, borderline diabetes, elevated cholesterol levels, and
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cigarette smoking contributed to his "difficulties."
Code § 65.2-402 provides that "heart disease . . . resulting
in total or partial disability of [a deputy sheriff] . . . shall
be presumed to be [an] occupational disease[], suffered in the
line of duty, . . . unless such presumption is overcome by a
preponderance of competent evidence to the contrary." Thus, to
rebut the presumption, an employer must establish by competent
medical evidence a non-work-related cause of the employee's heart
disease, City of Norfolk v. Lillard, 15 Va. App. 424, 430, 424
S.E.2d 243, 246-47 (1992), or must exclude work-related stress as
a factor contributing to the employee's heart disease. Duffy v.
Commonwealth of Virginia/Dept. of State Police, 22 Va. App. 245,
251, 468 S.E.2d 702, 705 (1996). Unless we can say as a matter
of law that employer's evidence sustained its burden of proof,
the commission's findings are binding and conclusive upon us.
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In ruling that employer's evidence failed to rebut the
statutory presumption, the commission found that the totality of
Dr. Hixon's testimony established that he "consistently referred
to 'risk factors' and not to cause" of the heart attack. The
commission found that Dr. Hixon "was merely enumerating factors
that would statistically increase the potential for heart disease
in one patient as compared to another, and was not identifying
actual causes of the claimant's hypertension and heart disease."
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The commission inferred that "Dr. Hixon was merely stating that
someone with the claimant's medical and social history was more
vulnerable to hypertension, coronary artery disease, or a
myocardial infarction, that he was more at risk of these
conditions because of that history." The commission also noted
that Dr. Steinberg explicitly opined that, in addition to other
factors, Turner's occupation contributed to his condition.
No medical evidence proved either that a non-work-related
factor caused claimant's heart disease or that work-related
stress was not a contributing cause of his condition. "[T]he
showing of 'risk factors' alone does not rebut the statutory
presumption and does not establish competent medical evidence of
a non-work-related cause of the disabling disease." Lillard, 15
Va. App. at 429, 424 S.E.2d at 246.
Accordingly, we affirm the commission's decision.
Affirmed.
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