COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Alexandria, Virginia 

FINCH WESTON DUFFY 

v. Record No. 0945-95-4 

COMMONWEALTH OF VIRGINIA/ 

 DEPARTMENT OF STATE POLICE 

THOMAS MORTIMER GALLOWAY 

 OPINION BY 

v. Record No. 0978-95-4 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 9, 1996 

COMMONWEALTH OF VIRGINIA/ 

 DEPARTMENT OF STATE POLICE 

WESLEY JAMES HUDSON 

v. Record No. 0938-95-4 

 

COMMONWEALTH OF VIRGINIA/ 

 DEPARTMENT OF STATE POLICE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael A. Kernbach (Jack T. Burgess; Jack T. 

Burgess & Associates, P.C., on briefs), for 

appellants. 

 Peter R. Messitt, Senior Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Catherine S. Hammond, Deputy 

Attorney General; Gregory E. Lucyk, Senior 

Assistant Attorney General; James P. Wheeler, 

Assistant Attorney General, on briefs), for 

appellee. 

 Amicus Curiae: Fraternal Order of Police, 

Virginia State Lodge (Malcolm Parks, III; 

Susan Elaine Sieger; Maloney, Barr & 

Huennekens, on briefs), for appellants. 

 The deputy commissioner awarded wage and medical benefits to 

Finch Weston Duffy, Thomas Mortimer Galloway, and Wesley James 
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Hudson (collectively "claimants"), concluding that employer, 

Commonwealth of Virginia/Department of State Police ("employer"), 

failed to rebut the presumption provided claimants by Code 

§ 65.2-402. The full commission reversed, concluding that 

employer was not required to exclude work-related stress as a 

contributing factor to the development of claimants' heart 

diseases. We disagree and reverse. 

BACKGROUND

 The evidence in each case was substantially the same and 

established the following common facts. In each case, employer 

did not dispute that the claimant, having satisfied the necessary 

predicates, was entitled to the presumption provided by Code 

§ 65.2-402(B).1 Each claimant testified regarding the stress 

associated with his work as a state trooper. Prior to their 

heart attacks, all three claimants had been smokers, and each had 

a medical history that included one or more of the following 

conditions: (1) hypertension; (2) high cholesterol; (3) family 

history of heart disease; (4) diabetes; and (5) obesity. 

 

 1 Code § 65.2-402(B) provides, in part, that 

 [h]ypertension or heart disease causing . . . 

any health condition or impairment resulting 

in total or partial disability of . . . (ii) 

members of the State Police Officers' 

Retirement System, . . . 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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 Dr. Richard A. Schwartz testified by deposition for each 

claimant. According to Dr. Schwartz, who first addressed the 

issues generally, the most relevant inquiry with regard to heart 

disease is identification of the factors that accelerate the 

process. Dr. Schwartz stated that multiple factors correlate to 

the development of coronary artery disease and that there is no 

single etiologic cause. He described the following, generally 

accepted, correlative factors: (1) cholesterol; (2) smoking; (3) 

stress; (4) blood pressure; (5) inactivity; and (6) intercurrent 

diseases such as diabetes. Dr. Schwartz assigned equal 

contributive weight to each of the factors but noted that the 

presence of any, or all, of the factors would not necessarily 

produce heart disease. For this reason, Dr. Schwartz testified 

that the factors can only be considered correlative, not causal. 

 Moreover, when a patient exhibits more than one factor, it is 

impossible to isolate any single factor and apportion it greater 

contributive weight. Dr. Schwartz further testified that smoking 

does not cause heart disease. Rather, according to Dr. Schwartz, 

the generally accepted opinion is that smoking only correlates 

with heart disease. 

 Dr. Schwartz's testimony with respect to each claimant was 

based on his review of the medical records and his examination of 

the claimant. Dr. Schwartz identified a combination of risk 

factors contributing to each claimant's condition. In each case, 

job stress was identified as one contributing risk factor, 
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together with at least one of the following factors: (1) 

hypertension; (2) smoking; and (3) diabetes. Dr. Schwartz 

testified that job stress correlates with the disease process as 

do the other factors, and he could not isolate the effect of a 

claimant's job stress relative to any of the other factors. 

While Dr. Schwartz identified the specific risk factors which, in 

his opinion, contributed to the heart disease in each claimant's 

case, he was unable to say what actually caused it. 

 At employer's request, Dr. Robert M. Bennett reviewed 

claimants' medical records. However, Dr. Bennett did not conduct 

a physical examination of claimants. Dr. Bennett testified 

generally that the following are the major risk factors 

associated with the development of coronary atherosclerosis: (1) 

family history; (2) hypertension; (3) diabetes; (4) smoking; and 

(5) cholesterol. Dr. Bennett testified that job stress is also a 

risk factor but not a major one. Dr. Bennett identified a 

combination of factors specifically contributing to each 

claimant's heart disease, including in each case at least three 

of the following: (1) high cholesterol; (2) smoking; (3) 

hypertension; (4) family history; and (5) diabetes. 

 In Duffy's case, Dr. Bennett testified that smoking and 

cholesterol caused Duffy's heart disease. However, Dr. Bennett 

continually referred to these risk factors as contributing or 

correlating to the development of Duffy's heart disease. In 

Galloway's case, Dr. Bennett testified that Galloway's heart 
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disease was caused by smoking, cholesterol, and family history. 

However, he later admitted that he could not determine which 

factor actually caused Galloway's condition and that the factors 

could only be considered correlative. In Hudson's case, Dr. 

Bennett did not testify that the risk factors Hudson exhibited 

caused his heart disease. Rather, he referred to the risk 

factors as contributors and described a person who exhibited such 

risk factors as more likely to develop heart disease. Although 

Dr. Bennett maintained that smoking causes heart disease, he 

admitted that not all smokers develop heart disease. 

 Dr. Bennett testified that each claimant would have 

developed heart disease even had he not been a police officer. 

However, he had not reviewed their job descriptions. For that 

reason, he could not address the extent to which job stress 

contributed to the development of claimants' heart diseases. 

Furthermore, Dr. Bennett could not exclude job stress as a factor 

contributing to the development of each claimant's heart disease. 

 In each case, both the deputy commissioner and the full 

commission found that employer's evidence failed to exclude 

work-related stress as a contributing factor to the development 

of claimants' heart diseases. The parties do not dispute that 

finding. The full commission reversed the deputy commissioner's 

awards, concluding that employer was not required to exclude 

work-related stress to rebut the presumption. The commission's 

determination of this question is one of law and not binding on 
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appeal. See, e.g., City of Waynesboro v. Harter, 1 Va. App. 265, 

269, 337 S.E.2d 901, 903 (1985). 

ANALYSIS

 The purpose of the presumption provided by Code 

§ 65.2-401(B) is to establish a causal connection between, inter 

alia, disability from heart disease and the occupation of a 

state trooper. Page v. City of Richmond, 218 Va. 844, 847, 241 

S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App. 

424, 426, 424 S.E.2d 243, 244-45 (1992). The presumption of 

causation provided by Code § 65.2-402(B) is "overcome by a 

preponderance of evidence to the contrary," and, "[i]n the 

absence of competent evidence to the contrary, the statutory 

presumption controls and the claimant prevails." Lillard, 15 Va. 

App. at 426, 424 S.E.2d at 245. The law is well settled that 

 [i]n order to rebut the presumption, it is 

not sufficient that the employer merely 

adduce evidence that the heart disease was 

not caused by the employment; the employer 

must establish by competent medical evidence 

a non-work-related cause to rebut or overcome 

the statutory presumption that causation 

exists. 

Fairfax Co. Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033, 

1036-37, 421 S.E.2d 668, 670-71 (1992) (citing Virginia Dep't of 

State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 

308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777. 

The issue here is whether the employer must establish a 

non-work-related cause to the exclusion of work-related factors. 

 In Mitchell, this Court held that where the employer's 
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"rebuttal evidence fail[s] to exclude a work-related factor as a 

cause of the heart disease, the finding of the commission that 

the employer failed to rebut the presumption in claimant's favor 

is conclusive and binding on appeal." Mitchell, 14 Va. App. at 

1034, 421 S.E.2d at 669; see also Talbert, 1 Va. App. at 253, 337 

S.E.2d at 308; County of Amherst v. Brockman, 224 Va. 391, 399, 

297 S.E.2d 805, 809-10 (1982) (commission's award affirmed if 

rebuttal evidence does not exclude stress as possible 

"contributing cause"). Here, employer presented significant 

evidence of non-work-related factors which may have contributed 

to the claimants' conditions, but it did not exclude the 

claimants' work as a contributing factor. 

 Employer argues, and the commission concluded, that Mitchell

does not require the employer to exclude work-related factors to 

rebut the presumption. Rather, employer contends Mitchell

establishes a rule of appellate review; viz, that the Court of 

Appeals cannot reverse an award where the employer fails to 

exclude work as a contributing factor to the claimant's 

condition. 

 However, the rule the commission applied in this case and 

which employer urges we should affirm, ignores and conflicts with 

other well established principles governing the proof of 

causation in workers' compensation cases. We can identify no 

decision or policy which would warrant excluding the application 

of these principles here. 
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 In proving causation in a workers' compensation case where 

the evidence demonstrates two or more potential causative 

factors, one of two conclusions follows. Either, a combination 

of factors contributed to cause the disability; or, one of the 

factors caused the disability to the exclusion of the others. 

 The "two causes rule" addresses those cases "where a 

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)); see also Shelton v. 

Ennis Business Forms, 1 Va. App. 53, 55, 334 S.E.2d 297, 299 

(1985). Under the two causes rule, "full benefits [are] allowed 

when it is shown that `the employment is a contributing factor.'" 

Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergman, 222 

Va. at 32, 278 S.E.2d at 803); see also Shelton, 1 Va. App. at 

55, 334 S.E.2d at 299. The "more probable than not rule," 

addresses those cases where only one of a number of possible 

factors caused the disability. See id. Under the more probable 

than not rule, for the disability to be compensable, it must be 

more probable than not that it was caused by the work-related 

factor. Id. That is, a preponderance of evidence must show that 

work was the cause of the disability. Id.

 As in Smith and Bergmann, the evidence in this case proved 

that a number of factors contributed to the development of 

claimants' conditions. Under the "two causes" rule, causation, 
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and therefore compensability, is established when it is shown 

that work contributed to the disability. For this reason, we 

hold that in a case where the evidence demonstrates that multiple 

factors, including job stress, contributed to the development of 

a police officer's heart disease, the employer must exclude 

work-related stress as a contributing factor to rebut the 

presumption of causation. 

 Here, both the deputy commissioner and the full commission 

found that employer's evidence failed to exclude job stress as a 

contributing factor. Cf. Doss v. Fairfax County Fire Dept., 229 

Va. 440, 441-42, 331 S.E.2d 795, 795-96 (1985) (employer's 

evidence established a non-work-related cause to the exclusion of 

work-related factors); Cook v. City of Waynesboro, 225 Va. 23, 

28-30, 300 S.E.2d 746, 748-49 (1983) (same). 

 Accordingly, the commission's decisions are reversed, and 

the cases are remanded to the commission for entry of awards 

consistent with this decision. 

Reversed and remanded.