COM., OFFICE OF COMPTROLLER v. Barker

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA,
OFFICE OF THE COMPTROLLER
OPINION BY
v. Record No. 070720 JUSTICE G. STEVEN AGEE
April 18, 2008
VICKIE H. BARKER

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge

The Comptroller of the Commonwealth of Virginia

(“Comptroller”) appeals from the judgment of the Circuit Court

of Pittsylvania County that made an award to Vickie H. Barker

under Code § 9.1-402(A) as well as health insurance premiums

and benefits pursuant to Code § 9.1-401. The Comptroller

contends that the circuit court erred in making any award under

Code § 9.1-402, and consequently, in making an award under Code

§ 9.1-401. In the alternative, the Comptroller argues if any

amount is payable under Code § 9.1-402, an award can only be

made pursuant to former Code § 9.1-402(B). 1 For the reasons set

forth below, we will affirm in part and reverse in part the

judgment of the circuit court.

1
Code § 9.1-402 was revised in 2006 redesignating the
subsections and adding additional language to the statute,
although the operative language at issue here was not revised
by those amendments. The 2006 amendment inserted a new
subsection B and redesignated former subsection B as subsection
C. See 2006 Acts ch. 878. We will reference the statutory
provisions as they existed before the 2006 amendment, as those
were the operative provisions at the time this case was filed.
 I. RELEVANT FACTS AND PROCEEDINGS BELOW

This case arises under the Virginia Line of Duty Act, Code

§ 9.1-400 et seq. (the “Act”). Barker is the surviving spouse

of Terry Lee Barker, Sr. (“Decedent”), who died on December 8,

2004 from a cardiac arrest while driving his police vehicle in

the course of his employment as a deputy sheriff with the

Pittsylvania County Sheriff’s Department. Before the Decedent

began his employment with the Sheriff’s Department, he

submitted to a pre-employment physical examination which

“listed a diagnostic data etiologic reference to diabetes and

hypertension,” but “there was no finding of heart disease.”

The death certificate listed Decedent’s cause of death as

atherosclerotic heart disease.

Barker filed a claim for death and health insurance

benefits with the Comptroller pursuant to the Act. The

Comptroller denied Barker’s claim, stating that Decedent’s

“pre-employment physical revealed that he suffered from

hypertension prior to being hired by the Pittsylvania County

Sheriff’s Office. Therefore, the presumption clauses [of Code

§ 65.2-402] do not apply and I must deny your request for line

of duty benefits.” Barker then filed a complaint in the

circuit court pursuant to Code § 9.1-405 for review of the

Comptroller’s decision. In her complaint, Barker contended she

was entitled to line of duty benefits under the Act by virtue

2
of the presumption in Code § 65.2-402. The Comptroller

responded, and the circuit court elected to decide the case

based on the pleadings after the parties agreed the facts were

not in dispute.

By letter opinion, the circuit court adopted Barker’s

proposed findings of fact which included a summary of

Decedent’s medical history, a summary of the de bene esse

deposition of Richard A. Schwartz, M.D., who was qualified as

an expert in the area of medicine and cardiology, medical

records from Decedent’s pre-employment physical examination,

and medical and investigation reports relating to Decedent’s

death. A specific finding of fact was that the Decedent “died

on the job from a cardiac arrest, and the Report of

Investigation by [the] Medical Examiner listed his cause of

death as atherosclerotic heart disease.”

Investigator Lonnie F. Craft from the Department of State

Police completed the investigation report for Barker’s claim

pursuant to Code § 9.1-403. Craft’s report indicated that on

December 8, 2004, Decedent was “repositioning a surveillance

camera at an area where deer carcasses were being dumped.”

This task involved jumping across a four-foot ditch while

carrying a fifty-pound battery. After completing this

assignment, Decedent was driving his police car, with another

officer as a passenger, when he “suffered a heart attack” and

3
died later that day. According to the investigation report,

“[t]he facts determined during this investigation indicate that

this death was line of duty related.” Dr. Schwartz testified

that the cause of Decedent’s death was “coronary artery

disease” commonly known as a “heart attack,” and that

Decedent’s pre-employment physical examination revealed “no

pathologic evidence of hypertensive cardiac disease.”

The circuit court’s letter opinion stated the court had

considered the evidence, the findings of fact and memoranda of

the parties, and determined that “the Comptroller has

misinterpreted the plain language of [Code § 65.2-402].”

Assuming, but not determining, that [Decedent] was
found to be suffering from hypertension at the time
of his physical, Barker is still entitled to the
presumption. At the time of his physical he was free
from respiratory diseases, cancer and heart disease.
He did not die of hypertension. He died of
atherosclerotic heart disease. Since [Decedent] died
from [h]eart disease, not hypertension, Barker is
entitled to the presumption afforded by [Code § 65.2-
402(B)].

The circuit court concluded by stating that “Barker is entitled

to the benefits resulting from the death of [the Decedent]

while in the line of duty.” The circuit court then entered a

final order on January 11, 2007, which incorporated the letter

opinion and gave judgment in favor of Barker for $75,000 under

Code § 9.1-402(A). The judgment also directed the Comptroller

to reimburse Barker for “all of her paid health insurance

4
premiums since the death of her husband” and “to secure and

provide health insurance benefits available to . . . a spouse

of a deceased employee covered by the Line of Duty Benefits

Plan of the Commonwealth of Virginia.” We awarded the

Comptroller this appeal.

II. STANDARD OF REVIEW

This appeal presents a matter of statutory interpretation

and is subject to de novo review by this Court. Wright v.

Commonwealth, 275 Va. 77, 80-81, 655 S.E.2d 7, 9 (2008).

When interpreting statutes, courts “ascertain and
give effect to the intention of the legislature.”
That intent is usually self-evident from the words
used in the statute. Consequently, courts apply the
plain language of a statute unless the terms are
ambiguous, or applying the plain language would lead
to an absurd result.

Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925

(2006) (citations omitted).

III. ANALYSIS

On appeal, the Comptroller makes four assignments of

error. First, the Comptroller contends that the circuit court

erred when it awarded $75,000 to Barker pursuant to Code § 9.1-

402(A). Second, the Comptroller argues the circuit court erred

by granting Barker “the presumption offered by Code § 65.2-402

. . . because [Decedent] was diagnosed with hypertension at his

pre[-]employment physical examination.” Additionally, the

Comptroller contends the circuit court “erred in failing to

5
afford the proper weight to the interpretation of [Code]

§§ 65.2-402 and 9.1-402(A) and (B).” Finally, the Comptroller

posits that the circuit court erred by awarding Barker health

insurance benefits under Code § 9.1-401.

We first address the Comptroller’s assignment of error

regarding the circuit court’s “fail[ure] to afford the proper

weight to the interpretation of [§§] 65.2-402 and 9.1-402(A)

and (B) by the . . . Comptroller.” Although “the practical

construction given to a statute by public officials charged

with its enforcement is entitled to great weight by the courts

and in doubtful cases will be regarded as decisive,” Southern

Spring Bed Co. v. State Corp. Comm’n, 205 Va. 272, 275, 136

S.E.2d 900, 902 (1964), “when an issue involves a pure question

of statutory interpretation, that issue does not invoke the

agency’s specialized competence but is a question of law to be

decided by the courts.” Alliance to Save the Mattaponi v.

Commonwealth, 270 Va. 423, 442, 621 S.E.2d 78, 88 (2005). The

circuit court’s review of the Comptroller’s decision solely

involved matters of statutory interpretation and did not rely

on the Comptroller’s “specialized competence.” Id. Thus, the

circuit court was not required to give any weight to the

Comptroller’s interpretation of the statute, and the assignment

of error on this issue is without merit.

6
 A. Application of Code § 9.1-402(A)

The Comptroller contends that Barker was not entitled to

receive an award under Code § 9.1-402(A), and the circuit

court’s judgment making that award is reversible error. The

Comptroller argues that the evidence failed to establish a

direct or proximate causal connection between Decedent’s death

and any employment-related work performed by Decedent which

caused his death. In the absence of that evidence, the

Comptroller contends Barker failed to prove a claim under Code

§ 9.1-402(A) as a matter of law because Decedent’s “death

merely occurred while he was working, but was not the immediate

result of the work he was performing.”

Barker responds that “[t]he evidence establishes and the

[t]rial [c]ourt found that [Decedent’s] death was the direct

and proximate result of the performance of his duty.” Barker

insists that the presumption of Code § 65.2-402(B) applies to

the court’s analysis of benefits payable under Code § 9.1-

402(A), and that Barker was therefore entitled to receive the

$75,000 award. 2 We agree with the Comptroller and hold that the

circuit court erred in making an award to Barker pursuant to

Code § 9.1-402(A).

2
The 2006 amendment to Code § 9.01-402 inserted a new
subsection (B), which entitles a claimant to receive an award
of $100,000 if the deceased’s “death occurred on or after
January 1, 2006.”

7
 Code § 9.1-402(A) provides, in pertinent part, that “[t]he

beneficiary of a deceased person whose death occurred . . .

while in the line of duty as the direct or proximate result of

the performance of his duty shall be entitled to receive the

sum of $75,000.” Code § 65.2-402(B) provides, in pertinent

part,

Hypertension or heart disease causing the death of
. . . 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.

Subsection (D) of that statute provides, in pertinent part:

The presumptions described in subsection . . . B
. . . of this section shall only apply if persons
entitled to invoke them have, if requested[,] . . .
undergone preemployment physical examinations that
. . . found such persons free of respiratory
diseases, hypertension, cancer or heart disease at
the time of such examinations.

The circuit court made the Code § 9.01-402(A) award based

on its conclusion that the Comptroller “misinterpreted the

plain language of § 65.2-402.” The circuit court did not,

however, explain its rationale for determining why or how the

court applied the presumption of Code § 65.2-402 to effect an

award of benefits to Barker under Code § 9.1-402(A).

Code § 9.1-402(A) permits an award only when a qualifying

deceased person died “while in the line of duty as the direct

or proximate result of the performance of his duty.” The plain

8
language of the statute thus requires proof of two distinct

conditions precedent for a Code § 9.1-402(A) award: the death

must have occurred (1) “while in the line of duty” and (2) “as

the direct or proximate result of the performance of his duty.”

Evidence presented by Barker confirmed that the Decedent died

in the “line of duty,” and the Comptroller concedes that is

correct. Thus, we need consider only whether the second

condition precedent was met.

To make a Code § 9.1-402(A) claim, the claimant must

adduce proof of “the direct or proximate result of the

performance” of duty as the cause of death, and the presumption

under Code § 65.2-402 is of no aid in that regard. There is

simply no nexus between the presumption of a statutory medical

condition under Code § 65.2-402 as a cause of death and whether

the death was “the direct or proximate result of the

performance” of a duty. Even if the presumption applies, it

would only prove that the Decedent died from one of the

statutory medical conditions while in the line of duty. That

presumed fact proves nothing in relation to the required Code

§ 9.1-402(A) condition precedent of death “as the direct or

proximate result of the performance” of the deceased person’s

law enforcement duty. Thus, to the extent the circuit court

made the Code § 9.1-402(A) award based on the presumption under

Code § 65.2-402, it was erroneous. Accordingly, Barker cannot

9
benefit from the presumption afforded by Code § 65.2-402 in her

claim under Code § 9.1-402(A).

Barker contends, in the alternative, that the Code § 9.1-

402(A) award by the circuit court was not erroneous because the

circuit court “found as a matter of fact that [Decedent] died

from cardiac arrest while in the line of duty” and “[t]he

immediate temporal proximity between [Decedent’s] labor while

in the performance of his duty and his heart attack[,] is

sufficient evidence of the causal connection between

[Decedent’s] death and the performance of his duty.” Barker’s

contention fails, however, because the circuit court did not

hold the Decedent’s death was “the direct or proximate result

of the performance of his duty,” and the evidence in this

record would not have supported such a determination.

Proximate cause “is that act or omission which, in natural

and continuous sequence, unbroken by an efficient intervening

cause, produces the event, and without which that event would

not have occurred.” Doherty v. Aleck, 273 Va. 421, 428, 641

S.E.2d 93, 97 (2007) (citations omitted). Black’s Law

Dictionary defines “direct cause” or “proximate cause” as “[a]

cause that is legally sufficient to result in liability” and

“[a] cause that directly produces an event and without which

the event would not have occurred.” Black’s Law Dictionary 234

(8th ed. 2004).

10
 Barker’s contention that the circuit court found the

direct and proximate cause of Decedent’s death to be the

performance of his law enforcement work is inaccurate. The

circuit court’s only finding was that Decedent “died on the job

from a cardiac arrest,” and that finding made no connection to

proximate cause. Barker points to no other place in the record

to support a finding by the circuit court of direct and

proximate causation.

Barker further argues, though, that the evidence in the

record supports a holding that Decedent’s law enforcement

duties on the day of his death were the direct and proximate

cause of his death. Barker argues that Decedent’s death while

on duty and which occurred at some point after he carried a

fifty-pound battery and leapt across a ditch, is evidence of

the causal connection required by the statute. We disagree.

While “[t]here may be more than one proximate cause of an

event,” Doherty, 273 Va. at 428, 641 S.E.2d at 97, the

condition precedent of Code § 9.1-402(A) requires proof that

the causal event was the proximate cause of death. The

evidence in this record fails to prove any law enforcement duty

activity of Decedent was a proximate cause of his death, much

less the proximate cause. The record contains no medical

evidence establishing any causal connection between Decedent’s

cause of death and his law enforcement activity. Neither is

11
there any nonmedical evidence which establishes the law

enforcement duties as the proximate cause of death. At best,

Barker’s evidence is that at some point before he died,

Decedent crossed a ditch carrying a heavy weight. This

anecdotal event can only be connected to Decedent’s later death

by mere speculation, which fails to prove any direct and

proximate cause relationship. See Cohn v. Knowledge

Connections, Inc., 266 Va. 362, 369, 585 S.E.2d 578, 582 (2003)

(citation omitted) (“evidence proving a causal connection must

be ‘sufficient to take the question out of the realm of mere

conjecture, or speculation, and into the realm of legitimate

inference’ ”).

Barker’s evidence thus failed to prove the required Code

§ 9.1-402(A) condition precedent that Decedent’s performance of

his law enforcement duty was the direct or proximate cause of

his death. This failure of proof is conclusive as to Barker’s

claim for benefits pursuant to Code § 9.1-402(A). Accordingly,

the circuit court erred in awarding Barker $75,000 pursuant to

Code § 9.1-402(A).

B. Code § 65.2-402

Although Barker was not entitled to receive a $75,000

award under Code § 9.1-402(A), we must determine whether she is

nonetheless entitled to a $25,000 award under Code § 9.1-

12
402(B). 3 Under subsection (B), a claimant is entitled to an

award when the deceased person’s death “arose out of and in the

course of his employment” and is “[s]ubject to the provisions

of . . . § 65.2-402.” The Comptroller concedes Decedent’s

death arose out of and in the course of his employment as a

deputy sheriff. The issue is whether the Code § 65.2-402

presumption applies.

The Comptroller assigns error to the circuit court’s

judgment that Barker is entitled to the presumption set forth

in Code § 65.2-402(B). Even though the circuit court

erroneously interpreted the presumption as applicable to a Code

§ 9.1-402(A) award, the holding that the presumption is in

effect as to the Decedent would apply to substantiate a Code

§ 9.1-401(B) award. The Comptroller contends on appeal, as he

did in the circuit court, that “[m]ere presence of a listed

condition precludes application of the presumption afforded by

Code § 65.2-402(B).” The Comptroller argues the Code § 65.2-

402(B) presumption is limited by subsection (D) of that statute

which requires that a decedent have been found in his pre-

employment physical to be “free of respiratory diseases,

hypertension, cancer or heart disease at the time of such

examinations.”

3
The circuit court did not address an award under Code
§ 9.1-402(B) since it made an award under subsection (A).

13
 The Comptroller contends that because the statutory

conditions (respiratory diseases, hypertension, cancer or heart

disease) are listed in the disjunctive, the presence of any of

those conditions in the pre-employment physical examination

negates the application of the subsection (B) presumption.

“[A] diagnosis of hypertension in a preemployment physical

. . . precludes application of the presumption provided by Code

§ 65.2-402(B)” regardless of the medical condition that

actually caused Decedent’s death, according to the Comptroller.

Thus, even though Decedent’s death “arose out of and in the

course of his employment,” Barker cannot prevail in a Code

§ 9.1-401(B) claim because Code § 65.2-402 does not apply, in

the Comptroller’s viewpoint.

Barker responds that the “use of the disjunctive ‘or’ in

[Code § 65.2-402(D)(iv)] strongly suggests that an employee’s

pre-employment physical need not find the employee free of all

the listed conditions . . . to recover compensation for a

condition with which the employee was not diagnosed in the pre-

employment physical.” Barker contends that this Court’s

decision in Berry v. County of Henrico, 219 Va. 259, 247 S.E.2d

389 (1978) confirms that a claimant is entitled to the benefit

of the presumption when the pre-employment examination “fails

to make a positive finding of the disease which subsequently

brings about the disability or death” of the employee.

14
(Emphasis in original.) Barker also cites cases from the

Virginia Worker’s Compensation Commission and other

jurisdictions which hold that the statutory presumption applies

when the pre-employment physical examination reveals no

evidence of the later fatal condition. 4 Barker contends “[n]o

legal basis exists for permitting the [Comptroller] to reject

the Line of Duty benefit for Barker based upon an equivocal

diagnosis of hypertension on June 12, 1996, when her husband

died of a massive heart attack in 2004.” We agree with Barker.

The circuit court held in its final order that because

Barker died from heart disease and not hypertension, he was

entitled to the presumption provided in Code § 65.2-402(B).

[Decedent] underwent the requisite pre-
employment examinations, was employed by the
Pittsylvania County Sheriff’s Department, and served
from 1996 until his death on December 8, 2004, while
on duty. Assuming, but not determining, that
[Decedent] was found to be suffering from
hypertension at the time of his physical, Barker is
still entitled to the presumption. At the time of
his physical he was free from respiratory diseases,
cancer, and heart disease. He did not die of
hypertension. He died of atherosclerotic heart

4
Two cases cited by Barker include Arnold v. City of
Norfolk Sheriff’s Office, VWC File No. 197-62-80, 2002 WL
31941591 (Workers’ Comp. Cmm’n 2002) (ruling that Berry
requires application of the presumption when the pre-employment
physical examination fails to make a positive finding of the
disease which subsequently brings about the death or disability
of the employee); and Florida v. Reese, 911 So.2d 1291, 1291-92
(Fla. Dist. Ct. App. 2005) (interpreting similar statute and
concluding presumption applied when the pre-employment physical
examination revealed “no evidence of the later disabling or
fatal condition”).

15
 disease. Since [Decedent] died from [h]eart disease,
not hypertension, Barker is entitled to the
presumption afforded by [Code § 65.2-402(B)].

The principle we explained in Berry is applicable to the

case at bar and supports the judgment of the circuit court. In

that case, Ray C. Berry, a firefighter, suffered an acute

myocardial infarction while off duty. Id. at 261, 247 S.E.2d

at 390. Prior to his employment, Berry submitted to a physical

examination which revealed “no evidence of hypertension or

arteriosclerotic cardiovascular disease.” Id. After Berry

suffered his heart attack, his employer’s doctor provided

expert testimony that his heart attack was “not an occupational

disease arising from his employment as a fireman.” Id. at 262,

247 S.E.2d at 391. The expert also testified that Berry’s pre-

employment physical examination revealed several risk factors,

including Berry’s family history of heart trouble, smoking and

weight problems, and concluded that Berry was not free from

heart disease at the time of his pre-employment physical

examination. Id. at 263, 247 S.E.2d at 391.

Based on this evidence, the Industrial Commission denied

the statutory presumption because the “evidence fail[ed] to

prove that the claimant was free of the condition prior to

16
making his claim.” 5 Id. at 264, 247 S.E.2d at 391. This Court

disagreed and held: “we think it clear that the General

Assembly intended the presumption to apply in those instances

where an examination conducted under the direction and control

of the employer fails to make a positive finding of the disease

which subsequently brings about the disability or death.” Id.

at 264-65, 247 S.E.2d at 392 (emphasis added).

We reiterated this holding in Garrison v. Prince William

County, 220 Va. 913, 265 S.E.2d 687 (1980). In Garrison,

George Garrison was employed as a deputy sheriff and underwent

a pre-employment physical examination which showed he was in

good health, but Garrison’s testimony revealed he knew before

taking the job that he suffered from high blood pressure. Id.

at 916, 265 S.E.2d at 688-89. Over the course of several

5
Berry sought the presumption of former Code § 65.1-47.1,
worded similarly to the presumption Barker seeks under Code
§ 65.2-402, which stated in pertinent part:

The death of, or any condition or impairment of health of,
salaried or volunteer fire fighters caused by respiratory
diseases, and the death of, or any condition or impairment
of health of, salaried or volunteer fire fighters . . .
caused by hypertension or heart disease, resulting in
total or partial disability shall be presumed to be an
occupational disease suffered in the line of duty that is
covered by this Act unless the contrary be shown by
competent evidence; provided that prior to making any
claim based upon such presumption, such salaried or
volunteer fire fighter shall have been found free from
respiratory diseases, hypertension or heart disease, as
the case may be . . . by a physical examination.

17
years, Garrison sought and received medical treatment for

hypertension, and eventually his doctor “advised him to curtail

his work activity.” Id. at 916, 265 S.E.2d at 689. Garrison

then sought recovery for lost wages due to hypertension, and

the Industrial Commission refused his claim and ruled that the

statutory presumption did not apply based upon Garrison’s pre-

employment knowledge that he had high blood pressure. Id. at

916-17, 265 S.E.2d at 689. We reversed and applied our

reasoning in Berry “that ‘the General Assembly intended the

presumption . . . to apply in those instances where an

examination conducted under the direction and control of the

employer fails to make a positive finding of the disease which

subsequently brings about the disability or death’ of a

claimant.” Id. at 919, 265 S.E.2d at 691.

Code § 65.2-402 has been revised since our decisions in

Berry and Garrison to remove the language “as the case may be,”

included in former Code § 65.1-47.1. The Comptroller cites the

General Assembly’s removal of the phrase “as the case may be”

when it amended and renumbered Code § 65.1-47.1 to become Code

§ 65.2-402, as well as other statutes which use that phrase,

for the proposition that any listed disease discovered in the

pre-employment physical examination would preclude the

presumption, regardless of the disease or condition which later

causes the death. The Comptroller asserts “[i]f the General

18
Assembly had intended for the . . . presumption to be

inapplicable only when the employee dies from the exact same

disease as was diagnosed at the preemployment examination, then

it would have used the phrase ‘as the case may be’ or a similar

phrase.”

We find no significance in the use or deletion of the

phrase “as the case may be” in the applicable statute. It

appears to carry no substantive meaning, contrary to what the

Comptroller asserts. The plain language of Code § 65.2-402(D)

is in the disjunctive, not the conjunctive, and indicates the

listed medical conditions are to be considered separately.

Moreover, the Comptroller’s proposed interpretation of the

statute does not further the purposes behind the statute, nor

does the phrase “as the case may be” change the analysis of our

holdings in Berry and Garrison.

The Comptroller’s interpretation of the statute would

prohibit an applicant who, for example, is diagnosed at a pre-

employment physical examination with a disease such as an

operable form of melanoma, from receiving the benefit of the

presumption when that same employee later suffers an unrelated

heart attack. Clearly the two diseases are unconnected, and we

have previously and consistently interpreted the statute in

such a way as to allow the presumption when the pre-employment

19
physical examination fails to reveal the disease which later

brings about the disability or death.

Reading the statutory language “free of respiratory

diseases, hypertension, cancer or heart disease” in the

disjunctive provides for an interpretation that comports to the

General Assembly’s intent in enacting the presumption. See

Dinwiddie County Sch. Bd. v. Cole, 258 Va. 430, 436, 520 S.E.2d

650, 653 (1999) (“[S]hould doubt remain, [the claimant] is

entitled to the benefit of the doubt [because t]he provisions

of the Workers’ Compensation Act ‘should be liberally construed

to carry out [its] humane and beneficial purposes.’ ”)

(citation omitted). 6 Thus, the Decedent’s diagnosis of

hypertension in his pre-employment physical examination is not

a bar to the application of the statutory presumption because

6
The Comptroller’s only caselaw support for his position
are two unpublished opinions of the Court of Appeals, Allen v.
City of Norfolk Police Dep’t, Record No. 0897-97-1 (Aug. 26,
1997) and Brown v. Loudoun County, Record No. 2138-96-4 (April
1, 1997). Neither helps the Comptroller. In Allen, the record
showed a direct causal link existed between the claimant’s pre-
employment physical examination and the disease he later
suffered. Record No. 0897-97-1, slip op. at 4. In Brown, the
pre-employment physical examination revealed “probable”
hypertension, and the claimant was denied the benefit of the
presumption for his claim of work-related hypertension. Record
No. 2138-96-4, slip op. at 2-3. In both Allen and Brown, the
disease diagnosed in the pre-employment physical examination
was the same disease suffered by the claimant who sought the
presumption. Allen and Brown are thus consistent with our
holdings in Berry and Garrison.

20
his death by heart disease was a separate and different medical

condition.

We hold that the presumption set forth in Code § 65.2-

402(B) applies. Accordingly, Decedent’s death “shall be

presumed to be [an] occupational disease[], suffered in the

line of duty, that [is] covered . . . unless such presumption

is overcome by a preponderance of competent evidence to the

contrary.” Based on the record before us, the Comptroller

failed to overcome this presumption. Consequently, Barker is

entitled to recover $25,000 pursuant to Code § 9.1-402(B).

Indeed, the Comptroller concedes that if Barker has a valid

claim under the Act and the presumption applies, then Barker

“is entitled to a payment of $25,000.”

C. Health Insurance Benefits

The Comptroller also assigned error to the judgment of the

circuit court awarding health insurance benefits to Barker

under Code § 9.1-401. However, the Comptroller conceded on

oral argument that if Barker is entitled to an award under Code

§ 9.1-402(B), then she is also entitled to the award of health

insurance benefits. As we have determined Barker is entitled

to the Code § 9.1-402(B) award, the circuit court did not err

in awarding her health insurance benefits under Code § 9.1-401.

IV. CONCLUSION

21
 We will therefore reverse the circuit court’s judgment

which awarded Barker $75,000, but will enter judgment for

Barker in the amount of $25,000 under Code § 9.1-401(B). We

will also affirm the circuit court’s judgment awarding health

insurance benefits to Barker under Code § 9.1-401.

Affirmed in part,
reversed in part,
and final judgment.

22