City of Hopewell v. Tirpak

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia

CITY OF HOPEWELL AND VIRGINIA MUNICIPAL
GROUP SELF-INSURANCE ASSOCIATION
OPINION BY
v. Record No. 1369-97-2 JUDGE LARRY G. ELDER
JULY 28, 1998
MICHAEL W. TIRPAK

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

S. Vernon Priddy, III (Sands, Anderson,
Marks & Miller, on briefs), for appellants.
B. Mayes Marks, Jr. (B. Mayes Marks, Jr.,
P.C., on brief), for appellee.

The City of Hopewell and Virginia Municipal Group

Self-Insurance Association (collectively "employer") appeal a

decision of the Workers' Compensation Commission ("commission")

awarding temporary total disability and medical benefits to

Michael W. Tirpak ("claimant"), who is a police officer.

Employer contends the commission erred when it (1) concluded it

had subject matter jurisdiction over claims involving gradually

incurred heart disease, (2) found that a diagnosis of claimant's

heart disease was communicated to him on February 17, 1995, and

(3) found that employer failed to rebut the statutory presumption

contained in Code § 65.2-402(B) that claimant's heart disease was

caused by his employment as a police officer. While this appeal

was pending, claimant petitioned this Court to have the case

remanded for new factual findings in light of Augusta County
Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997),
and City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 493

S.E.2d 661 (1997), both of which were decided after the

commission's decision in this case. For the reasons that follow,

we affirm in part, vacate in part, and remand.

I.

FACTS

Claimant has worked as a police officer for the City of

Hopewell since 1973. On February 17, 1995, he was diagnosed with

multi-vessel coronary artery disease by Dr. Ashok Kumar.

Claimant underwent triple bypass surgery on February 21 and

returned to work on May 22.
Claimant filed a claim with the commission seeking medical

and temporary total disability benefits stemming from his heart

disease. During a hearing on claimant's claim, both parties

presented evidence regarding the causation of claimant's heart

disease. Following the hearing, a deputy commissioner awarded

claimant temporary total disability benefits from February 8,

1995, through May 21, 1995, and medical benefits from January 24,

1995, and continuing. Employer appealed, and the commission

affirmed. The commission found that Dr. Kumar's diagnosis on

February 17, 1995 informed claimant that his heart disease was an

occupational disease. The commission also found that the

evidence presented by employer failed to rebut the statutory

presumption of Code § 65.2-402(B) that claimant's heart disease

was suffered in the line of duty. In its statement of the

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applicable law, the commission stated that "[t]he employer fails

to rebut the presumption [of Code § 65.2-402(B)] where a work

related factor such as occupational stress is not excluded." The

commission also concluded that claimant's claim was not barred by

Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996),

and its progeny.

II.

COMMISSION'S SUBJECT MATTER JURISDICTION
OVER CLAIM REGARDING GRADUALLY INCURRED HEART DISEASE

Employer contends the commission lacked subject matter

jurisdiction over claimant's claim. It argues that, in light of

Jemmott and Allied Fibers v. Rhodes, 23 Va. App. 101, 474 S.E.2d

829 (1996), heart disease resulting from "cumulative exposure to

causative factors" is no longer covered by the Workers'

Compensation Act ("Act"). As such, employer asserts the

commission is without jurisdiction under Code § 65.2-402(B) to

hear claims stemming from gradually incurred heart disease. We

disagree.

We hold that neither Jemmott nor Rhodes has stripped the
commission of subject matter jurisdiction under Code

§ 65.2-402(B) to hear claims for the compensation of heart

disease. Employer correctly contends that, unless deemed

compensable by the General Assembly, "cumulative trauma

conditions, regardless of whether they are caused by repetitive

motion, are not compensable under the Act." Rhodes, 23 Va. App.

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at 104, 474 S.E.2d at 830 (citing Jemmott, 251 Va. at 199, 467

S.E.2d at 802). However, the General Assembly has expressly

empowered the commission with jurisdiction to determine "[a]ll

questions arising under [the Act], if not settled by agreements

of the parties interested therein with the approval of the

Commission . . . ." Code § 65.2-700. Whether a particular

ailment is caused by cumulative trauma and whether it is a

compensable disease are questions that arise under the Act. See
A New Leaf, Inc. v. Webb, 26 Va. App. 460, 466, 467-68, 495

S.E.2d 510, 513, 514 (1998). Thus, even assuming claimant's

heart disease was not compensable because it was gradually caused

by the process of trauma, the commission had statutory authority

to receive evidence and make this determination. In addition,

notwithstanding case law construing the meaning of "disease"

under the Act, 1 the General Assembly, by enacting Code

§ 65.2-402, expressly indicated its intent that occupational

"heart disease" will be included as a compensable "disease."

Even if all heart disease is caused gradually by the process of

trauma, the General Assembly has expressly removed this ailment

from those cumulative trauma conditions that are otherwise not

compensable as a "disease" when it is incurred by the public

servants enumerated in the statute.
1
See Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795
(1996); Merillat Indus., Inc. v. Parks, 246 Va. 429, 436 S.E.2d
600 (1993); Holly Farms/Federal Co. v. Yancey, 228 Va. 337, 340,
321 S.E.2d 298, 299 (1984); A New Leaf, Inc. v. Webb, 26 Va. App.
460, 495 S.E.2d 510 (1998); Allied Fibers v. Rhodes, 23 Va. App.
101, 474 S.E.2d 829 (1996).

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 III.

COMMUNICATION DATE OF DIAGNOSIS

Employer contends the commission erred when it found that

claimant received a diagnosis of an occupational disease on

February 17, 1995. Because credible evidence in the record

supports the commission's finding, we disagree with employer's

contention.

An occupational disease is not compensable under the Act

until a diagnosis of the occupational disease has been

communicated to the employee. See Island Creek Coal Co. v.

Breeding, 6 Va. App. 1, 9, 365 S.E.2d 782, 787 (1988); Code

§ 65.2-403. "The diagnosis need not contain precise medical

terminology as long as the diagnosis is definite and informs the

claimant in clear and understandable language that he or she is

suffering from a disease that arises out of and in the course of

employment." Via v. Citicorp Mortgage, Inc., 10 Va. App. 572,

576, 394 S.E.2d 505, 507 (1990) (citation omitted). Claimant

testified that on February 17, 1995, the day of his

cardiocatheterization, Dr. Kumar told him and his wife that

"stress on the job" was among the contributing factors that

caused his heart disease. When Dr. Kumar was asked whether he

discussed the causation of claimant's heart disease with him on

February 17, the doctor responded that he "[did] not recall the

details" of the conversation. Because claimant's uncontradicted

account of his discussion with Dr. Kumar on February 17 indicates

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that he received a diagnosis of an occupational disease, we hold

that the commission's factual finding was not erroneous.

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 IV.
LEGAL STANDARD APPLIED BY THE COMMISSION REGARDING

THE REBUTTAL OF THE PRESUMPTION OF CODE § 65.2-402(B)

Both employer and claimant argue that Overbey and Bass

rendered incorrect the legal standard applied by the commission

and that this case should be remanded to the commission for

factual findings based upon the correct legal standard. We

agree.

The Act "currently provides coverage for impairments arising

out of and in the course of employment that fall into one of two

categories: (1) 'injuries by accident' and (2) 'occupational

disease.'" A New Leaf, Inc., 26 Va. App. at 465, 495 S.E.2d at

513 (quoting Code § 65.2-101). Under Code § 65.2-402(B), heart

disease incurred by a police officer employed by a city is

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

of duty, that [is] covered by [the Act] . . . ." 2 This

presumption ("causation presumption") does not automatically

entitle an employee covered by Code § 65.2-402(B) to benefits.

Instead, the causation presumption shifts the evidentiary burden

2
Code § 65.2-402(B) states in relevant part:

heart disease causing . . . any health
condition or impairment resulting in total or
partial disability of . . . (iii) members of
county, city or town police departments . . .
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.

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from the claimant to the employer to "overcome [the presumption]

by a preponderance of competent evidence to the contrary." Code

§ 65.2-402(B); see Commonwealth, Dep't of State Police v. Hines,

221 Va. 626, 629-30, 272 S.E.2d 210, 213 (1980) (citing Page v.

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

In Overbey, the Supreme Court held that, in order to rebut

the causation presumption, an employer is not required to offer

evidence that excludes "the possibility of all job-related

[hypotheses of] causation" when there is no medical evidence

establishing any causal relationship. Overbey, 254 Va. at 526,

492 S.E.2d at 634. Thus, in a case in which no evidence is

presented proving that occupational stress was a contributing

factor to the claimant's heart disease, "the employer [does not]

have the burden of excluding the 'possibility' that job stress

may have been a contributing factor . . . ." Id. at 527, 492

S.E.2d at 634.

In Bass, this Court applied the holding of Overbey to a case

in which one physician opined that the "probable cause" of the

claimant's heart disease was "genetic and environmental." Bass,

26 Va. App. at 134, 493 S.E.2d at 667. None of the doctors who

expressed an opinion in Bass "opined to a reasonable degree of

medical certainty that job stress was a causative factor in the

disease [the] claimant suffered." Id. at 135, 493 S.E.2d at 667.

Based on the Supreme Court's holding in Overbey that the

employer was not required to exclude the possibility that job

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stress may have contributed to the claimant's heart disease, we

held that the commission erred when it found the employer had

failed to rebut the causation presumption. Id. at 134, 493

S.E.2d at 667 (citing Overbey, 254 Va. at 527, 492 S.E.2d at

634).

In light of Bass and Overbey, we hold that the commission

applied an incorrect legal standard in this case when it found

that employer had failed to rebut the causation presumption. In

its opinion, the commission stated that "[t]he employer fails to

rebut the presumption [of Code § 65.2-402(B)] where a work

related factor such as occupational stress is not excluded." The

language used by the commission indicates that, as a prerequisite

for rebutting the causation presumption, it required employer to

exclude the possibility of work-related causes without regard to

whether evidence was presented that such a causal link existed.

However, as is made clear by Overbey and Bass, this standard is
not the law in Virginia. An employer is not required to prove

that specific "work-related factors" were not the cause of the

claimant's heart disease when no evidence in the record brings

such a causal connection out of the realm of speculation.

Because the record indicates the commission made its decision

regarding whether employer rebutted the causation presumption

based upon an incorrect legal standard, we remand for new

findings employing the correct legal standard.

V.

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 REBUTTING THE PRESUMPTION OF CODE § 65.2-402(B)

Employer makes additional legal arguments that are likely to

arise on remand. First, it contends Overbey stands for the

proposition that determining whether the causation presumption

has been rebutted is based solely upon the evidence presented

during the employer's rebuttal case. 3 Along these lines, the

concurring opinion contends the causation presumption shifts only

the burden of production on the issue of causation to the

employer and that the presumption disappears upon the

introduction of contrary evidence by the employer. Second,

employer argues that, under Overbey, all an employer must show to
rebut the causation presumption is that the claimant's heart

disease had at least one non-work-related cause. 4 We address

each issue in turn.

A.

EFFECT OF THE PRESUMPTION OF CODE § 65.2-402(B)

ON THE BURDENS OF PRODUCTION AND PERSUASION

First, we consider the effect of the causation presumption

when an employer offers evidence tending to show that a
3
In its brief, employer argues that it rebutted the
presumption when it "presented its prima facie medical case." It
contends that, after it burst the bubble of the causation
presumption, "[t]he burden then shifted back to [claimant] to
prove his case under Virginia Code § 65.2-401 as recognized
implicitly in Overbey."
4
Employer argues in its brief that it rebutted the
presumption because it "proved, by a preponderance of competent
medical evidence, non-work-related causes of [claimant's] heart
disease."

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

the Virginia Supreme Court stated in Fairfax County Fire and

Rescue Services v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981),

that the causation presumptions now codified at Code § 65.2-402

cast "the ultimate risk of nonpersuasion" upon the employer, 222

Va. at 541, 281 S.E.2d at 901, and this statement was not

expressly addressed by the Supreme Court in Overbey, we conclude

that the causation presumption continues to have the effect of

shifting to the employer both the burden of production and the

burden of persuasion on the issue of causation. As such, we hold

that whether an employer has rebutted the causation presumption

is determined by the commission in its role as fact finder after

weighing the evidence offered by both parties on the issue of

causation.
1.

Burden of Proof and Presumptions

In order to understand the Supreme Court's interpretation of

the causation presumption in Newman, the law regarding the burden
of proof and presumptions must be examined. In every judicial

proceeding, the procedural mechanism known as the "burden of

proof" is allocated. 5 The phrase "burden of proof" refers to two

5
See 1 Charles E. Friend, The Law of Evidence in Virginia
§ 9-3 (4th ed. 1993); 2 McCormick on Evidence §§ 336-37 (John W.
Strong ed., 4th ed., 1992); 9 Wigmore, Evidence §§ 2485-89
(Chadbourn rev. 1981); 1 Clifford S. Fishman, Jones on Evidence:
Civil and Criminal § 3:1 (7th ed. 1992) [hereinafter Jones on
Evidence].

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related but distinct concepts: (1) the "burden of production,"

which is the obligation to make a prima facie case, i.e., to

introduce evidence sufficient as a matter of law to enable a

rational fact finder to find that a particular proposition of

fact is true and (2) the "burden of persuasion," which is the

obligation to introduce evidence that actually persuades the fact

finder, to the requisite degree of belief, that a particular

proposition of fact is true. See Ohlen v. Shively, 16 Va. App.

419, 424, 430 S.E.2d 559, 561-62 (1993) (citing Westmoreland Coal
Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415

(1988)). 6 The placement of these two burdens is significant

because the party to whom they are assigned is liable to an

adverse decision if he or she fails to meet them. See Brothers

Constr. Co. v. Virginia Employment Comm'n, 26 Va. App. 286, 298,

494 S.E.2d 478, 484 (1998) (citing Virginia Employment Comm'n v.

Thomas Regional Directory, Inc., 13 Va. App. 610, 616, 414 S.E.2d

412, 416 (1992)). 7
It is well established that the burden of production can

shift from one party to the other during the course of a trial.

See Redford v. Booker, 166 Va. 561, 569, 185 S.E. 879, 883 (1936)

(citing Riggsby v. Tritton, 143 Va. 903, 918, 129 S.E. 493, 498

6
See 1 Friend, supra, §§ 9-1 to 9-2; 2 McCormick on Evidence,
supra, § 336; 9 Wigmore, Evidence, supra, §§ 2485-89; 1 Jones on
Evidence, supra, §§ 3:4 to 3:6.
7
See 1 Friend, supra, § 9-2(a) & (b); 2 McCormick on
Evidence, supra, § 336; 9 Wigmore, Evidence, supra, §§ 2485-89.

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(1925)). 8 Although the burden of persuasion "does not normally

shift" during a trial, the burden of persuasion on a particular

issue may be cast upon the defendant, particularly in cases

involving certain kinds of presumptions. 9 Although the burdens

of production and persuasion are generally allocated to either

the plaintiff, the party seeking to disturb the status quo, the

party having peculiar knowledge of the matter, or according to

the pleadings, there is no fixed rule for determining how these

burdens should be allocated in every instance. 10 The allocation

of the burdens of production and persuasion "depends ultimately

on policy considerations," 9 Wigmore, Evidence § 2486 (Chadbourn

rev. 1981), and when the law underlying a particular cause of

action is legislative in origin, the issue is resolved "by

deferring, when possible, to legislative intent." 1 Clifford S.

Fishman, Jones on Evidence: Civil and Criminal § 3:14 (7th ed.

1992); see also Newman, 222 Va. at 541, 281 S.E.2d at 901; 2

McCormick on Evidence § 337 (John W. Strong ed., 4th ed., 1992).

A presumption is a procedural rule of law "directing that if

a party proves certain facts (the 'basic facts') at a trial or

8
See 1 Friend, supra, § 9-4; 2 McCormick on Evidence, supra,
§ 337; 9 Wigmore, Evidence, supra, § 2489; 1 Jones on Evidence,
supra, § 3:29.
9
1 Friend, supra, § 9-4(c); see 1 Jones on Evidence, supra,
§ 3:29; 2 McCormick on Evidence, supra, § 337.
10
See 1 Friend, supra, § 9-3(a); 2 McCormick on Evidence,
supra, § 337; 9 Wigmore, Evidence, supra, § 2486; 1 Jones on
Evidence, supra, §§ 3:11 to 3:14.

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hearing, the factfinder must also accept an additional fact (the

'presumed fact') as proven unless sufficient evidence is

introduced tending to rebut the presumed fact." 1 Jones on

Evidence, supra, § 4:2 (emphasis in original); see also Martin v.

Phillips, 235 Va. 523, 530, 369 S.E.2d 397, 401 (1988). 11

Presumptions affect the evidentiary burdens of the parties with

regard to particular factual issues. 12 They are created for any

of several reasons, including procedural fairness, procedural

economy, the probability of the matter at issue, and the
13
implementation of social policy.
The actual effect of presumptions on the allocation of the

burdens of production and persuasion is a hotly contested legal

issue that "has literally plagued the courts and legal scholars"

for decades. 14 On one side of the issue is the "Thayer theory"

or "bursting bubble theory," which states that the only effect of

a presumption is to shift the burden of production with regard to

the presumed fact. 15 Under this theory, once the party against
11
See 1 Friend, supra, § 10-1(c); 2 McCormick on Evidence,
supra, § 342; 9 Wigmore, Evidence, supra, § 2491.
12
See 2 McCormick on Evidence, supra, § 343; 9 Wigmore,
Evidence, supra, § 2491; 1 Jones on Evidence, supra, §§ 4:4 to
4:8.
13
See 2 McCormick on Evidence, supra, § 343; 9 Wigmore,
Evidence, supra, § 2491; 1 Jones on Evidence, supra, §§ 4:4 to
4:8.
14
2 McCormick on Evidence, supra, § 344; see 1 Friend, supra,
§ 10-5; 9 Wigmore, Evidence, supra, § 2493a; 1 Jones on Evidence,
supra, § 4:9.
15
See 2 McCormick on Evidence, supra, § 344(A); 9 Wigmore,

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whom the presumption operates introduces evidence sufficient as a

matter of law to establish a prima facie case, the presumption is

"spent and disappears," and the party who initially benefited

from the presumption still has the burden of persuasion on the

factual issue in question. 16

The competing school of thought, which is known as the

"Morgan theory," criticizes the "bursting bubble theory" for

giving presumptions an effect that is too "slight and evanescent"

when viewed in light of the policy reasons that justified their
17
creation. Under the "Morgan theory," a presumption should have

the effect of shifting both the burden of production and the

Evidence, supra, § 2487(d); 1 Jones on Evidence, supra, § 4:10.
16
2 McCormick on Evidence, supra, § 344(A); see 9 Wigmore,
Evidence, supra, § 2487(d); 1 Jones on Evidence, supra, § 4:10.
The proponents of this theory contend it has the beneficial
effect of "requir[ing] the artificial force infused into
presumptions . . . to be treated as the equivalent of the natural
force of evidence which -- standing alone -- would entitle its
beneficiary to a directed verdict." 9 Wigmore, Evidence, supra,
§ 2493g.
17
2 McCormick on Evidence, supra, § 344(A); see 9 Wigmore,
Evidence, supra, § 2493c; 1 Jones on Evidence, supra, § 4:11.
Professor Morgan, the theory's proponent, observed that, under
the Thayer theory, a presumption can be destroyed by the mere
introduction of evidence "which comes from interested witnesses,
and which is of a sort that is usually disbelieved." 9 Wigmore,
Evidence, supra, § 2493c (quoting 18 A.L.I. Proceedings 221
(1941)). He argued:

I think that you ought to give greater effect
to a presumption than the mere burden of
putting in evidence which may be disbelieved
by the trier of fact.

Id.

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burden of persuasion on the factual issue in question to the

party against whom the presumption operates. 18 This effect

ensures that a presumption, particularly one created to further

social policy, has "enough vitality to survive the introduction

of opposing evidence which the trier of fact deems worthless or

of slight value." 9 Wigmore, Evidence, supra, § 2493g.

The law of presumptions in Virginia reflects both the Thayer

theory and the Morgan theory. In an apparent Thayerian

reference, the Virginia Supreme Court has stated that "[n]o

presumption . . . can operate to shift the ultimate burden of

persuasion from the party upon whom it was originally cast,"
Martin, 235 Va. at 526, 369 S.E.2d at 399, and there are numerous

presumptions of the "bursting bubble" variety whose effect is

merely to shift the burden of production on the factual issue in

question. 19 However, there are at least three "Morgan theory"

presumptions in Virginia law that have the effect of shifting

both the burdens of production and persuasion with regard to a

particular factual issue: the presumption against suicide that

arises in the context of claims under life insurance policies,

18
See 2 McCormick on Evidence, supra, § 344(A); 9 Wigmore,
Evidence, supra, § 2493c; 1 Jones on Evidence, supra, § 4:11.
19
See, e.g., Volvo White Truck Corp. v. Vineyard, 239 Va. 87,
91-92, 387 S.E.2d 763, 766 (1990) (holding that presumption that
bailee was negligent operates to shift only the burden of
production and not the burden of persuasion); Martin, 235 Va. at
530, 369 S.E.2d at 401 (holding that presumption of undue
influence in cases involving wills and deeds shifts only the
burden of production and not the burden of persuasion).

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the presumption of negligence arising in cases involving damaged

goods delivered by a common carrier, and the presumption of

legitimacy of a child born in wedlock.

The Supreme Court expressly considered the issue of the

effect of the presumption against suicide on the burden of proof

in Life & Cas. Ins. Co. of Tenn. v. Daniel, 209 Va. 332, 340-42,

163 S.E.2d 577, 583-86 (1968). Under this presumption, "when

death by external and violent means is proven, a presumption

arises in favor of the beneficiary that the death was accidental

. . . ." Id. at 335, 163 S.E.2d at 580. Addressing the effect

of this presumption on the burden of proof, the Virginia Supreme

Court held that, once the presumption arises, the burden of

persuasion on the issue of whether the insured's death was caused

by suicide shifts to the insurer and remains there throughout the

remainder of the trial:
Evidence to overcome [the presumption
against suicide] must be clear and
satisfactory and to the exclusion of any
reasonable hypothesis consistent with death
from natural or accidental causes. The
presumption remains throughout the trial
unless the evidence of suicide is so
conclusive that only one reasonable deduction
can be drawn therefrom, and it becomes a
question of law for the court to decide. The
jurors will weigh the evidence and test the
persuasiveness of the facts proved on the
issue of suicide, in the light of human
experience, and the truth gained from it,
that under most circumstances a human being
will not deliberately and intentionally
destroy himself.

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Id. at 341-42, 163 S.E.2d at 584-85 (emphasis added). 20

In concluding that the presumption against suicide shifted the

burden of persuasion on the issue to the insurer, the Supreme

Court relied on Morgan-like reasoning:
If the presumption disappeared once
evidence to the contrary appeared, there
would be nothing for that evidence to
controvert. The presumption should stand in
the face of such evidence and be given weight
in determining the fact question. When
positive evidence appears to indicate suicide
it stands on one side, and the evidence of
the plaintiff-beneficiary, together with the
presumption, on the other, and the trier of
fact must weigh them both in determining the
question.

Id. at 340, 163 S.E.2d at 583.

Regarding the presumption of negligence that arises in cases

where damaged goods are delivered by a common carrier, the

Supreme Court has held that "[w]hen the plaintiff proves that the

goods were received by the carrier in good order and delivered by

the delivering carrier in bad order," a presumption arises that

the goods were damaged due to the carrier's negligence.
Chesapeake and Ohio Ry. Co. v. Timberlake, Currie & Co., Inc.,

147 Va. 304, 309-13, 137 S.E. 507, 508-09 (1927). This

presumption shifts to the carrier both the burden of production

20
In his treatise on the law of evidence in Virginia,
Professor Friend states that the presumption against suicide
"shifts the burden of persuasion to the insurer to establish by
'clear and satisfactory evidence' that the death was due to
suicide." 1 Friend, supra § 10-22 n.4 (citing Atkinson v. Life
Ins. Co. of Va., 217 Va. 208, 210, 228 S.E.2d 117, 119 (1976))
(emphasis in original).

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and the burden of persuasion to either disprove the facts

established by the plaintiff or prove that the damage to the

goods was caused by one of five specific causes: the inherent

nature of the goods, interference by the owner, or acts of "God,"

of "the public enemy," or of "public authority." Id. at 309-10,

137 S.E. at 507. The Court expressly stated that "whether the

presumption of negligence arising from the damaged condition of

the [goods] had been rebutted, [was a question] for the jury."
Id. at 313, 137 S.E. at 509 (emphasis added). Applying a

Morgan-like approach, the Court reasoned that:
such severity as may inhere in the rule seems
necessary to the security of property, and
the protection of commerce; it is founded on
the great principle of public policy, has
been approved by many generations of wise
men; and if the courts were now at liberty to
make instead of declaring the law, it may
well be questioned whether they could devise
a system which on the whole would operate
more beneficially.

Id. (citation omitted) (emphasis added).

Turning to the presumption of legitimacy, the Supreme Court

indicated as early as 1888 that this presumption has the effect

of shifting the burden of persuasion on the issue of the child's
legitimacy to the party claiming illegitimacy. See Scott v.

Hillenberg, 85 Va. 245, 7 S.E. 377 (1888). In Scott, the Court

stated:
Throughout the investigation, the presumption
in favor of legitimacy is to have its weight
and influence; and the evidence against it
ought to be strong, distinct, satisfactory
and conclusive. . . . The duty of the jury
is to weigh the evidence against the

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 presumption (of legitimacy,) and to decide
according to the preponderance.

Id. at 247, 7 S.E. at 378 (parenthetical in original). The

Supreme Court has since reaffirmed the principle that the

presumption of legitimacy is not rebutted until the fact finder

weighs the persuasiveness of the evidence. See Cassady v.

Martin, 220 Va. 1093, 1098, 266 S.E.2d 104, 106 (1980) (citing

Scott and stating that "in our view, . . . it was for the jury to

say whether the presumption of legitimacy had been overcome"). 21
We conclude from the co-existence of "Thayer theory"

presumptions and "Morgan theory" presumptions in Virginia law

that, in practice, the Supreme Court follows the approach

advocated by commentators on the common law rules of evidence:

there is no single rule governing the effect of all presumptions;

instead, the effect of a particular presumption on the burdens of

production and persuasion depends upon the purposes underlying

the creation of the presumption. 22

2.
Newman and the Effect of the Presumptions of Code § 65.2-402

In Newman, the Supreme Court indicated that the presumptions

21
Regarding the presumption of legitimacy, Professor Friend
states that "it appears to shift the burden of persuasion to the
person claiming illegitimacy." See 1 Friend, supra, § 10-41 &
n.2 (citing Scott, 85 Va. 245, 7 S.E. 377).
22
See 2 McCormick on Evidence, supra, § 344(B); 1 Jones on
Evidence, supra, §§ 4:12 to 4:16; but see 9 Wigmore, Evidence,
supra, § 2493g (arguing that the Thayer theory should apply to
all presumptions).

-20-
included in Virginia's heart and lung statute, then codified at

Code § 65.1-47.1, are "Morgan theory" presumptions whose effect

is to shift to the employer both the burden of production and the

burden of persuasion on the issue of causation. The issue in

Newman was whether the causation presumption regarding

respiratory diseases, now codified at Code § 65.2-402(A), was

unconstitutionally irrebuttable. In its discussion of this

issue, the Supreme Court expressly addressed how the General

Assembly intended this presumption to be applied:
The legislature was making a public policy
judgment in its allocation of the burden of
proof the ultimate risk of nonpersuasion in
these cases. The fact that it chose to cast
that burden upon the employer infringes no
constitutional right.

Newman, 222 Va. at 541, 281 S.E.2d at 901. It is fundamental and

well settled that the "risk of nonpersuasion" is a direct

reference to the burden of persuasion. See Darden v. Murphy, 176

Va. 511, 518, 11 S.E.2d 579, 580 (1940) (stating that "the burden

of proof in the sense of the risk of nonpersuasion" is

distinguishable from "the burden of going forward with the
23
evidence").
The Supreme Court also indicated in Newman that the

causation presumption regarding respiratory diseases shifts both

the burdens of production and persuasion to the employer by
23
See 1 Friend, supra, § 9-2(b) (stating that the term "risk
of nonpersuasion" is a "particularly apt" reference to the burden
of persuasion); see also 2 McCormick on Evidence, supra, § 336; 9
Wigmore, Evidence, supra, §§ 2485-89.

-21-
comparing it to the presumption against suicide. Citing Daniel,

the Court stated that this causation presumption operates like

the presumption against suicide:
Such burden on the employer is similar, we
believe to the burden upon an insurance
carrier who relies upon suicide as a defense
to an accident policy where the insurer has
the burden of proving suicide . . . .

Newman, 222 Va. at 541, 281 S.E.2d at 901. Thus, according to

the Supreme Court's reasoning, the causation presumption "does

not just disappear when evidence is offered in opposition

thereto," Daniel, 209 Va. at 340, 163 S.E.2d at 583, and, like
the presumption against suicide, it has the effect of shifting

both the burden of production and the burden of persuasion on the

issue of causation to the employer.

Although, in Newman, the Supreme Court considered the

General Assembly's intended effect of the causation presumption

regarding respiratory diseases, we believe that its analysis

applies with equal force to the causation presumption regarding

heart disease of Code § 65.2-402(B). At the time Newman was
decided in 1981, both presumptions were codified at Code

§ 65.1-47.1 and shared the same operative clause. See Code

§ 65.1-47.1 (1980 Repl. Vol.) (stating that, in cases involving

their respective classes of covered employees, both respiratory

disease and heart disease "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 a preponderance of

-22-
the evidence"). Currently, except for the diseases and employees

covered by each, the two presumptions continue to share the

identical operative language. See Code § 65.2-402(A) & (B) (both

stating that their respective diseases "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

purpose of both presumptions is "to eliminate the necessity for

proof by the claimant of causal connection" by placing the burden

of proof on the employer. Page, 218 Va. at 847, 241 S.E.2d at

777; see Newman, 222 Va. at 541, 281 S.E.2d at 281. In light of

the identical language and purpose of these presumptions, it is

inconceivable to us that the causation presumption regarding

respiratory diseases would be interpreted as casting upon the

employer the ultimate risk of nonpersuasion on the issue of

causation but not doing so in cases involving heart disease. 24
24
In the same vein, we hold that Newman requires us to reject
employer's argument that the presumption of Code § 65.2-402(B) is
unconstitutionally irrebuttable. In Newman, the Court held that
the causation presumption regarding respiratory diseases was
neither irrebuttable nor violative of due process. See Newman,
222 Va. at 541, 281 S.E.2d at 901. In reaching its conclusion,
the Court reasoned:

It is of no constitutional significance that
the present state of medical science and the
healing arts places a greater burden on the
employer. . . . As long as an employer may
introduce evidence in rebuttal of the
presumption, the employer's constitutional
rights of due process have been protected.
The absence of evidence is a problem of proof
and does not automatically make the
presumption irrebuttable.

-23-
 Even if Newman is not controlling, the General Assembly's

policy reasons for creating the causation presumption support the

conclusion that, when applicable, the presumption shifts to the

employer the burden of persuasion on the issue of causation.

Because the presumption is legislative in origin, its effect on

the burden of production and the burden of persuasion is a matter

of legislative intent. See 1 Jones on Evidence, supra, § 3:14.

The General Assembly's purpose for enacting the causation

presumption was to protect the public servants enumerated in the

statute from the risk of nonpersuasion in claims involving heart

disease and hypertension. Newman, 222 Va. at 541, 281 S.E.2d at

901. When it enacted the presumptions contained in Code

§ 65.2-402, the General Assembly "knew that the causes of

pulmonary and cardiac diseases are unknown and that the medical

community is split regarding the impact of stress and work

environment on these diseases." Id. at 540, 281 S.E.2d at 900.

The General Assembly specifically recognized that "it is

difficult to conclusively link stress to heart disease in an

individual case" and that "[p]ossibly no employees are subjected

to more stress than fire fighters and law enforcement officers."
City of Waynesboro, Sheriff's Dep't v. Harter, 222 Va. 564, 567,

Id. Likewise, because neither the text of Code § 65.2-402(B) nor
the cases of this Court and the Supreme Court applying this
statute prohibits an employer from introducing evidence regarding
the non-work-related causes of a claimant's heart disease, the
causation presumption regarding heart disease remains both
rebuttable and constitutional.

-24-
281 S.E.2d 911, 913 (1981).

Concluding that the causation presumption is a "bursting

bubble" presumption would defeat the General Assembly's intent.

Given the division in the medical community regarding the

causative link between occupational stress and heart disease and

the abundance of "risk factors" for heart disease that occur in

everyday life, it is not difficult to imagine that, in cases

where the presumption arises, an employer will be able to

introduce evidence that a police officer's or firefighter's heart

disease was caused solely by non-work-related factors. In such

cases, under the "bursting bubble" theory, the causation

presumption would disappear the moment such evidence was

introduced and before the commission, in its role as fact finder,

had the opportunity to weigh its credibility and

persuasiveness. 25 Moreover, if the presumption does not operate

25
As with any determination of causation, whether an employer
has proven that a claimant's heart disease or hypertension was
produced by non-work-related causes is a question of fact. See
City of Norfolk v. Lillard, 15 Va. App. 424, 430, 424 S.E.2d 243,
246 (1992) (citing Ingersoll-Rand Co. v. Musick, 7 Va. App. 684,
688, 376 S.E.2d 814, 817 (1989)). When determining questions of
fact,

the weight to be given the evidence, the
credibility of witnesses, and the resolution
of conflicting opinions of expert medical
testimony are matters solely . . . decided by
the Commission.

Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 254,
337 S.E.2d 307, 309 (1985). The factual findings of the
commission are binding on appeal if they are supported by
credible evidence in the record. See Code § 65.2-706(A).

-25-
to shift the burden of persuasion to the employer, firemen and

police officers face an onerous burden once the presumption is

rebutted. Under the current statutory scheme for coverage of

ordinary diseases of life, claimants must prove by clear and

convincing evidence both that their ailment "arose out of and in

the course of employment" and that it "did not result from causes

outside of the employment." Ross Laboratories v. Barbour, 13 Va.

App. 373, 376-77, 412 S.E.2d 205, 207-08 (1991) (emphasis added);
see Code § 65.2-402. In light of the inherent difficulty of

establishing the etiology of heart disease and the General

Assembly's intent "to benefit and protect" the enumerated public

servants from the risk of nonpersuasion, the only conclusion that

avoids rendering the causation presumption too evanescent is that

it was intended to operate as a "Morgan theory" presumption. 26
26
We also believe the language chosen by the General Assembly
in Code § 65.2-402(B) indicates its intent to create a "Morgan
theory" presumption. Code § 65.2-402(B) expressly states that
the employer must rebut the causation presumption by "a
preponderance of competent evidence to the contrary." It is well
settled that the "preponderance of the evidence" standard sets
forth "how convincing the evidence in favor of a fact must be in
comparison with the evidence against it before that fact may be
found . . . ." Metropolitan Stevedore Co. v. Rambo, U.S. ,
n.9, 117 S. Ct. 1953, 1963 n.9, 138 L.Ed.2d 327 (1997)
(emphasis added). The Supreme Court has equated the
preponderance standard with the "greater weight of the evidence."
Bedget v. Lewin, 202 Va. 535, 540, 118 S.E.2d 650, 654-55
(1961). In addition, the Supreme Court has held that doctrine of
res ipsa loquitur does not shift the burden of persuasion because
the defendant "is not required to offset it by a preponderance of
the evidence." Riggsby, 143 Va. at 917, 129 S.E. at 498
(citation omitted) (emphasis added). Thus, the direct reference
to the "preponderance" standard in Code § 65.2-402(B) clearly
indicates the General Assembly intended for the causation
presumption to shift the burden of persuasion to the employer.

-26-
 This interpretation of Code § 65.2-402(B) is in accord with

the treatment in other jurisdictions of similar presumptions in

workers' compensation statutes benefiting public servants. See

Cunningham v. City of Manchester Fire Dep't, 525 A.2d 714, 717-18

(N.H. 1987) (considering the Thayer and Morgan theories and

concluding that the legislature intended the causation

presumption to shift both the burdens of production and

persuasion to the employer); Montgomery County Fire Bd. v.
Fisher, 468 A.2d 625, 630-31 (Md. 1983) (same); Wright v. State

Accident Ins. Fund, 613 P.2d 755, 759-61 (Or. 1980) (considering

the Thayer and Morgan theories and concluding that the causation

presumption does not disappear with the introduction of opposing

evidence by the employer).

We note that, in Overbey, the Supreme Court arguably

contradicted its earlier statements in Newman regarding the

shifting from the claimant to the employer of the burden of

persuasion on the issue of causation. The Court stated:
Because we conclude that the employer
introduced sufficient evidence to rebut the
presumption, [the claimant] 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.

Overbey, 254 Va. at 527, 492 S.E.2d at 634. However, the only

issue expressly addressed by the Court in Overbey was whether the

employer is required to exclude every hypothetical possibility

that the claimant's heart disease was work-related in order to

-27-
rebut the presumption. See id. at 526, 492 S.E.2d at 633.

Because the effect of the causation presumption on the burdens of

production and persuasion was not the issue before the Court in

Overbey, this statement was dictum. Significantly, the Supreme

Court made no direct reference to either Newman or its earlier

statement that the causation presumption casts "the ultimate risk

of nonpersuasion" upon the employer. As the Supreme Court has

oft repeated, "'[i]n Virginia, the doctrine of stare decisis is

more than a mere cliche.'" Nunnally v. Artis, 254 Va. 247,

252-53, 492 S.E.2d 126, 128-29 (1997) (quoting Selected Risks

Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987)).

Because the discussion in Newman regarding the General

Assembly's intended application of the causation presumptions of

Code § 65.2-402 is the most "full deliberation on the issue by

the [C]ourt" to date and because the Court made no express

reference to Newman in its opinion in Overbey, we do not believe

the Supreme Court intended Overbey to overrule Newman. See
Selected Risks Ins. Co., 233 Va. at 265, 355 S.E.2d at 381. As

such, we conclude that the Supreme Court's statement in Newman

regarding the effect of the causation presumption on the burdens

of production and persuasion is still the law in Virginia.

B.
EXTENT OF NON-WORK-RELATED CAUSATION

NECESSARY TO REBUT THE PRESUMPTION OF CODE § 65.2-402(B)

We next consider employer's contention that the causation

presumption is always rebutted when the employer offers evidence

-28-
that the claimant's heart disease had at least one

non-work-related cause. We hold that, because the causation

presumption shifts both the burdens of production and persuasion

to the employer, whether proof of a non-work-related cause is

sufficient to rebut the presumption depends upon how the

commission weighs the evidence presented by the parties.

As the Supreme Court held in Overbey, an employer is never

required to exclude the "possibility" that particular conditions

of a claimant's employment caused his or her heart disease. See

Overbey, 254 Va. at 526-27, 492 S.E.2d at 633-34. As such, if

the preponderance of the evidence produced by the parties

indicates to the commission, the trier of fact, that the heart

disease was caused by non-work-related factors and that there was

no proximate causal connection between the disease and the

employment, then the causation presumption is rebutted. 27

However, a claimant who proves that the causation

presumption applies to his or her claim is entitled to full

benefits if there is affirmative evidence deemed persuasive by

27
See Overbey, 254 Va. at 526-27, 492 S.E.2d at 634 (all of
the credible evidence in record indicated that the cause of the
claimant's ailment was non-work-related); Doss v. Fairfax County
Fire and Rescue Dep't, 229 Va. 440, 442-43, 331 S.E.2d 795,
796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't,
225 Va. 23, 30, 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.
App. at 134-35, 493 S.E.2d at 667 (same); Estate of Montgomery v.
City of Portsmouth Police Dep't, 4 Va. App. 525, 528-29, 358
S.E.2d 762, 764-65 (1987) (credible evidence in record indicated
that the cause of the claimant's ailment was non-work-related and
the commission declined to credit claimant's evidence regarding
work-related causes).

-29-
the commission that the employment was a contributing cause of

the claimant's heart disease. 28 Thus, if the preponderance of

the evidence indicates to the commission that the claimant's

heart disease had multiple causes, at least one of which is

related to the employment, then the presumption that the heart

disease was "suffered in the line of duty" is not rebutted. 29

This understanding of the causation presumption is not only

mandated by judicial precedent, it is dictated by the plain

meaning of Code § 65.2-402(B). In rebutting the presumption, the

statute calls for the employer to prove by a preponderance of the

evidence that the heart disease in question was not "an

occupational disease, suffered in the line of duty." This

language, which is clear and unambiguous, plainly means that, in

a case where, in the commission's opinion, the evidence

preponderates that the heart disease is causally related to the

employment, the employer has, in effect, failed to prove that the

heart disease was not "suffered in the line of duty," and,

28
See Overbey, 254 Va. at 527, 492 S.E.2d at 634 (indicating
that a claimant is entitled to benefits under Code § 65.2-402(B)
when the evidence shows that at least one cause of the claimant's
heart disease was "related to the employment"); Duffy v.
Commonwealth/Dep't of State Police, 22 Va. App. 245, 251, 468
S.E.2d 702, 705 (1996) (holding that "'full benefits [are]
allowed when it is shown that the employment is a contributing
factor'" (citations and internal quotation marks omitted)).
29
See Duffy, 22 Va. App. at 251, 468 S.E.2d at 705
(preponderance of the evidence demonstrated to commission that
multiple factors, including job stress, contributed to the
development of the police officer's disease); Talbert, 1 Va. App.
at 253-54, 337 S.E.2d at 309 (same).

-30-
consequently, not met the burden imposed upon it by the

presumption.

Even assuming that the language of Code § 65.2-402(B) is

ambiguous, this understanding is consistent with the intent of

the General Assembly. When a statute is ambiguous, we resort to

principles of statutory construction to resolve the ambiguity.

See Virginia Dep't of Labor and Indus. v. Westmoreland Coal Co.,

233 Va. 97, 101-02, 353 S.E.2d 758, 762 (1987). "The ultimate

purpose of these rules is to ascertain the intention of the

legislature, and '[e]very statute is to be read so as to promote

the ability of the enactment to remedy the mischief at which it

is directed.'" USAA Cas. Ins. Co. v. Alexander, 248 Va. 185,

194, 445 S.E.2d 145, 150 (1994) (citations omitted) (internal

quotation marks omitted). As part of the Workers' Compensation

Act, which is remedial in character, the language of Code

§ 65.2-402(B) was intended to be liberally construed, without

amending or extending its provisions, in order to attain the

result desired by the General Assembly. See Amherst County Bd.

of Supervisors v. Brockman, 224 Va. 391, 397, 297 S.E.2d 805, 808

(1982); Humphries v. Newport News Shipbuilding and Dry Dock Co.,

Inc., 183 Va. 466, 479, 32 S.E.2d 689, 695 (1945); Byrd v.

Stonega Coke & Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729

(1943).

As previously discussed, the General Assembly's purpose when

enacting Code § 65.2-402(B) was to protect the public servants

-31-
enumerated in the statute from the risk of nonpersuasion in

claims involving heart disease and hypertension. See Newman, 222

Va. at 541, 281 S.E.2d at 901; Harter, 222 Va. at 567, 281 S.E.2d

at 913. Construing Code § 65.2-402(B) so that the enumerated

public servants recover benefits when the preponderance of the

evidence persuades the commission that their employment was a

contributing cause of the heart disease reinforces the General

Assembly's desired purpose of protecting this class of claimants

from the risk of nonpersuasion by assuring that they are awarded

benefits when the evidence presented actually preponderates in

their favor.
Finally, we would be exceeding the scope of our judicial

function were we to alter the General Assembly's intended

application of Code § 65.2-402(B) and hold that the causation

presumption can be rebutted when the preponderance of the

evidence indicates to the commission that both employment-related

and non-work-related factors contributed to the causation of the

heart disease. The legislature was making a public policy

judgment when it allocated to employers the burden of proof and

the ultimate risk of nonpersuasion in these cases. See Newman,

222 Va. at 541, 281 S.E.2d at 901. As an appellate court, we are

precluded from judicially inventing a contrary rule, "the merits

of which involve public policy judgments which are properly the

province of the General Assembly." Bristol Redev. and Hous.
Auth. v. Farmbest, Inc., 215 Va. 106, 109, 205 S.E.2d 406, 408

-32-
(1974).

For the foregoing reasons, we affirm the commission's

conclusion that it had subject matter jurisdiction over

claimant's claim and its finding that the communication date of

claimant's diagnosis was February 17, 1995. We vacate the

commission's finding that employer failed to rebut the

presumption of Code § 65.2-402(B) and remand for further

proceedings consistent with this opinion.
Affirmed in part, vacated in part
and remanded.

-33-
Bumgardner, J., concurring.

I concur in the decision to remand the case for further

proceedings in light of Augusta County Sheriff's Dep't v.

Overbey, 254 Va. 522, 492 S.E.2d 631 (1997). I do not join the

balance of the opinion.

Code § 65.2-402(B) creates a true presumption. A

presumption allows the party with the burden of producing

evidence of fact A to meet the burden by producing evidence of

fact B. The presumption holds that when evidence proves fact B,

then fact A, the presumed fact, is established. The proponent of

fact A can rest, will survive a motion to strike, and will be

entitled to judgment as a matter of law if the opposing party

does not present evidence to rebut the presumed fact. The burden

of producing evidence shifts to the opponent. If evidence

showing the nonexistence of the presumed fact is produced, the

presumption is rebutted.
In this case, Michael Tirpak had the burden of producing

evidence that his heart disease was caused by his employment.

Code § 65.2-402(B) creates a presumption that employment was the

cause if the claimant produces evidence specified in Code

§ 65.2-402(D). Thus, when a claimant presents evidence that he

had a pre-employment physical examination and was found to be

free of heart disease, then the presumed fact, causation by

employment, is taken as proved. The claimant prevails unless the

employer presents evidence to refute the presumed fact. If the

-34-
employer presents evidence of the nonexistence of the presumed

fact, that the heart disease was not caused by employment, the

presumption is rebutted.

In Overbey, the employer presented evidence to rebut the

presumed fact, causation by employment. The claimant failed to

present evidence that established causation once the benefit of

the presumption disappeared. Overbey had no evidence on the

issue of causation, and the employer prevailed as a matter of law

because it rebutted the presumption.
In the instant case, the employer presented evidence to

rebut the presumed fact. Under Overbey the presumption was

rebutted. However, the claimant presented other evidence that

could establish causation. He did not rely solely on the

presumption as Overbey did. This case must be remanded for the

commission, acting as trier of fact, to evaluate whether the

claimant's evidence to prove causation prevails over the

employer's evidence to disprove it.

On remand the majority directs the commission to weigh the

evidence of both parties to see if the employer presented

sufficient evidence to rebut the presumed fact. I do not believe

that is the correct procedure, but in this case it is not

necessary to decide the correct practice for handling

presumptions. Overbey establishes that the employer in this case

has presented sufficient evidence to rebut the presumption.

Because Tirpak, unlike Overbey, has some evidence to prove

-35-
causation independent of the presumption, he may prevail if the

commission finds that he met 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." Overbey, 254 Va. at 527, 492 S.E.2d at 634

(quoting Code § 65.2-401).

I would remand to the commission for it to evaluate the

evidence from both sides to see if the claimant has met this

burden. The issue of whether the burden of persuasion shifts to

the employer should not be addressed at this time. It did not

arise as the case was presented to the commission. The issue was

never raised, briefed or argued.

-36-