Present: Carrico, C.J., Compton, Lacy, Hassell, and Kinser, JJ.,
and Stephenson and Whiting, Senior Justices
AUGUSTA COUNTY SHERIFF'S DEPARTMENT, ET AL.
OPINION BY
v. Record No. 962561 SENIOR JUSTICE HENRY H. WHITING
October 31, 1997
PATRICK L. OVERBEY
FROM THE COURT OF APPEALS OF VIRGINIA
In an employer's appeal of a workers' compensation claim, we
consider a provision in Code § 65.2-402(B) which creates a
presumption that a deputy sheriff's heart disease was an
occupational disease suffered in the line of duty "unless such
presumption is overcome by a preponderance of competent evidence
1
to the contrary."
While on duty and talking to another deputy sheriff, Deputy
Sheriff Patrick Lindy Overbey sustained sharp chest pains for a
period of 9 or 10 minutes on the morning of January 31, 1995.
Later that day, acting as a deputy sheriff-security guard at a
local high school basketball game, Overbey again suffered chest
pains which his attending physician, Dr. David B. Chernoff,
diagnosed as a myocardial infarction or "heart attack."
Following a period of hospitalization and recovery, Overbey
filed a claim for workers' compensation against his employer, the
1
Code § 65.2-402(B) provides in pertinent part:
Hypertension or heart disease causing . . . any health
condition or impairment resulting in total or partial
disability of . . . [certain law enforcement officers
including] 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.
Augusta County Sheriff's Department, and its insurer, the
Virginia Municipal Group Self-Insurance Association
(collectively, the employer). Asserting that Overbey's
disability was not the result of an occupational disease suffered
in the line of his duties as a deputy sheriff, the employer
denied liability.
After a hearing, a deputy commissioner of the Workers'
Compensation Commission dismissed the claim on the ground that
the evidence was sufficient to overcome the Code § 65.2-402(B)
presumption that Overbey's heart disease was a result of work-
related causes. On Overbey's appeal, the Workers' Compensation
Commission disagreed with the deputy commissioner and awarded
benefits. On the employer's appeal, the Court of Appeals
affirmed the Commission's decision. Concluding that this case
involves matters of significant precedential value, we awarded an
appeal to the employer. Code § 17-116.07(B).
Prior to the hearing before the deputy commissioner, the
employer took the deposition of Dr. Chernoff. According to Dr.
Chernoff, although there was no "single etiologic cause" for
Overbey's heart attack, there were several "risk factors" which
he thought caused the attack. Dr. Chernoff listed the following
risk factors: (1) a history of heavy smoking (according to
Overbey, he had smoked from two to two-and-a-half packs of
cigarettes each day from age 19 until he had his heart attack at
the age of 41); (2) elevated cholesterol; (3) a family history of
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heart trouble (Overbey's father had a heart attack while "in his
50's"); and (4) non-insulin-dependent diabetes mellitus coupled
with a strong family history of diabetes.
Although Dr. Chernoff did not ask Overbey about his specific
job duties, Dr. Chernoff had previously treated "a few" law
enforcement officers in the Staunton area and "a number of
Security Police" while he was a physician in the United States
Air Force. Dr. Chernoff testified that, in his opinion,
Overbey's employment was not a risk factor or a cause of his
heart disease. However, on cross-examination, Dr. Chernoff
indicated that it was "possible" that "stress" may have
contributed to cause Overbey's heart attack.
Overbey testified about the stressful incidents in his job.
In his regular duties as a civil process server, he had many
papers to serve in a limited time, occasionally upon people who
were uncooperative. Overbey also testified that while serving
papers, he encountered dogs "two or three times a week." He
responded to domestic violence calls "[a]bout once a week," house
or bank burglar alarms on an "average of two or three a week,"
and "on occasions," he "worked accidents." When he could "feel"
his heart racing while driving a car at work, he would "just pull
off the side of the road and just wind down."
Approximately three weeks before Overbey's heart attack, his
wife was suspended from her job, and a few days later she was
charged with embezzlement and forgery. About a week before his
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heart attack, Overbey and his wife separated. Overbey testified
that his state of mind was "easier" after the separation.
However, when Dr. Chernoff was treating Overbey's heart disease,
Overbey's description of his wife's legal problems caused Dr.
Chernoff to describe them as the "main stressor." No physician
contradicted Dr. Chernoff's testimony listing the non-job-related
risk factors which he thought contributed to cause Overbey's
heart disease.
To recover compensation for heart disease, a workers'
compensation claimant must ordinarily establish, among other
things, that the illness is an "occupational disease . . . by
clear and convincing evidence, to a reasonable medical certainty,
[and] that it arose out of and in the course of employment."
Code § 65.2-401. 2 However, in the case of certain law
enforcement officials, including deputy sheriffs, Code § 65.2-
402(B) creates a presumption that their heart diseases are
occupationally related, "unless such presumption is overcome by a
preponderance of competent evidence to the contrary."
The employer concedes that the presumption in Code § 65.2-
402(B) requires it to establish a non-work-related cause for
Overbey's heart condition and that job stress was not the cause.
2
In 1997, Code § 65.2-401 was amended to delete "to a
reasonable medical certainty," and to add "(not a mere
probability)."
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Overbey contends that this presumption also imposes the burden
upon the employer of producing a preponderance of evidence
excluding the possibility that his heart disease was work
related. The employer responds that Overbey's contention adds an
additional burden upon it that is neither stated nor implied in
the statute.
We agree with the employer. In Page v. City of Richmond,
218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978), this Court noted
that in rebutting the presumption that heart disease is work
related, the employer must adduce competent medical evidence of a
non-work-related cause.
Overbey suggests that in County of Amherst v. Brockman, 224
Va. 391, 399, 297 S.E.2d 805, 810 (1982), we established an
obligation that the employer "exclude" the "possibility" of job-
related causes. We disagree. In Brockman, our statement about
the employer's failure to "exclude stress as a possible
'contributing cause'" was made in the context of our affirmance
of the Commission's award of compensation based upon conflicting
medical evidence. In Brockman, not only had the employer failed
to exclude job-related stress as a cause, but its medical
evidence of a non-job-related cause of heart attacks was
contradicted by other medical evidence "adopted" by the deputy
commissioner and the full Workers' Compensation Commission on
review. Id., 297 S.E.2d at 809. Here, there was no medical
evidence other than that presented by the employer.
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Our decisions subsequent to Brockman have applied the basic
standard noted in Page with no suggestion that the employer's
proof must exclude the possibility of all job-related causation
hypotheses. Thus, in Doss v. Fairfax County Fire & Rescue
Department, 229 Va. 440, 442, 331 S.E.2d 795, 796 (1985), the
Court simply applied the conclusion stated in Page that in order
to overcome the statutory presumption, the employer merely "must
adduce competent medical evidence of a non-work-related cause of
the disabling disease." That burden has been met upon submission
of competent medical evidence that the claimant's condition was
more than likely a hereditary phenomenon, id., or a showing that
the claimant's heart condition was "generally thought to be
congenital" or was "probably" congenital. Cook v. City of
Waynesboro Police Department, 225 Va. 23, 28-30, 300 S.E.2d 746,
748-49 (1983). Thus, nothing in the statute or the several
decisions of this Court dealing with rebuttal of this presumption
suggests that the employer has the burden of excluding the
"possibility" that job stress may have been a contributing factor
to heart disease.
Because we conclude that the employer introduced sufficient
evidence to rebut the presumption, Overbey had the burden of
"establishing by clear and convincing evidence, to a reasonable
medical certainty," that his heart disease arose out of and in
the course of his employment. See Code § 65.2-401. As noted, no
medical expert contradicted Dr. Chernoff's opinion. Hence,
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Overbey's description of his work stresses was, as a matter of
law, insufficient to establish "to a reasonable medical
certainty" that his heart disease arose out of his employment.
For these reasons, we reject Overbey's contention that his claim
for compensation was properly awarded under the "two causes
rule." That rule applies when the evidence shows that an
employee's "'disability has two causes: one related to the
employment and one unrelated.'" Smith v. Fieldcrest Mills, Inc.,
224 Va. 24, 28, 294 S.E.2d 805, 808 (1982) (quoting Bergmann v. L
& W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 803 (1981)). Here,
as we have said, the employer has met the burden of overcoming
the statutory presumption and Overbey has not shown that his
heart disease arose out of his employment. Thus, he has not
shown that there was a cause "related to the employment," an
essential component of the "two causes rule."
Accordingly, we will reverse the judgment of the Court of
Appeals and dismiss the claimant's application for benefits.
Reversed and dismissed.
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