COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Clements 

Argued at Alexandria, Virginia 

JOHN B. PATTON, JR. 

 OPINION BY 

v. Record No. 1055-00-4 JUDGE JEAN HARRISON CLEMENTS 

 AUGUST 28, 2001 

LOUDOUN COUNTY BOARD OF SUPERVISORS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael A. Kernbach (Jack T. Burgess & 

Associates, P.C., on brief), for appellant. 

 Susan A. Evans (Jimese Pendergraft Sherrill; 

Siciliano, Ellis, Dyer & Boccarosse, on 

brief), for appellee. 

 John B. Patton, Jr., contends the Workers' Compensation 

Commission erred in ruling that his employer, the Loudoun County 

Board of Supervisors, presented sufficient competent evidence to 

rebut the presumption under Code § 65.2-402(B) that his heart 

disease was an occupational disease suffered in the line of 

duty. We agree and reverse and remand this case. 

 As a preliminary matter, Patton contends the commission 

exceeded the scope of the Supreme Court's remand order1 and 

violated the law of the case by reaching a different conclusion 

on remand. We disagree. The Supreme Court specifically ordered 

 1

 Technically, the remand order was ours. The Supreme 

Court, after reversing our earlier judgment in this matter, 

remanded the case to us for remand to the commission. 
that the case be remanded to the commission "to reconsider the 

evidence presented in accordance with the principles expressed 

in" the Supreme Court's opinion in Bass v. City of Richmond 

Police Department, 258 Va. 103, 515 S.E.2d 557 (1999). The 

commission did exactly that. It reevaluated the evidence, 

applying the correct legal standards expressly set forth in 

Bass, and reached a decision contrary to its earlier decision. 

We conclude, upon our review of the record, that the commission, 

in reassessing the evidence and making appropriate findings of 

fact in accordance with the directive of the Supreme Court, did 

not exceed the Supreme Court's mandate or violate the law of the 

case. 

 Patton further contends the commission improperly concluded 

that his employer presented sufficient evidence to overcome the 

occupational disease presumption established in Code 

§ 65.2-402(B) of the Workers' Compensation Act. 

 Code § 65.2-402(B) provides, in relevant part: 

 Hypertension or heart disease causing 

the death of, or any health condition or 

impairment resulting in total or partial 

disability of . . . salaried or volunteer 

firefighters [and] . . . 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. 

 In order to rebut the presumption established by Code 

§ 65.2-402(B), "the employer must show, by a preponderance of 

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the evidence, both that (1) the claimant's disease was not 

caused by his employment, and (2) there was a non-work-related 

cause of the disease." Bass, 258 Va. at 114, 515 S.E.2d at 

562-63. Hence, "if the employer does not prove by a 

preponderance of the evidence both parts of this two-part test, 

the employer has failed to overcome the statutory presumption." 

Id. at 114, 515 S.E.2d at 562. 

 Here, the evidence established that Patton worked 

continuously for Loudoun County since the age of eighteen, the 

first five years as a firefighter and then as a deputy sheriff. 

In 1994, at the age of thirty-eight, he suffered an inferior 

myocardial infarction while investigating a criminal matter. 

 According to Dr. Carey M. Marder, Patton's treating 

cardiologist, the cause of the heart attack "was a thrombus in 

the right coronary artery." He added: 

How much of this is related to the stress of 

a 2nd Lieutenant's job is difficult to say 

. . . . Stress as an independent risk 

factor is very difficult to quantitate. 

Certainly, however, I would consider John to 

have been in a considerably higher risk due 

to his other cardiac risk factors. 

 Dr. Stuart F. Seides, a cardiologist who, at the request of 

Patton's employer, examined Patton and reviewed some of his 

medical records, noted that Patton was found shortly after the 

heart attack to have "multi-vessel coronary atherosclerosis with 

critical obstruction of the 'culprit' right coronary artery." 

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Dr. Seides further noted that Patton's "symptom onset did occur 

in the setting of his patrol duties," but added that 

it is highly likely that the myocardial 

infarction would have occurred in or around 

the same time frame regardless of his 

activities. Although "stress" is often 

considered to be an important trigger for 

myocardial infarction, most infarcts occur 

in the absence of an identifiable 

environmental event and in those cases where 

there is an apparent association, it may be 

simple coincidence. What is most important 

is the presence of the underlying 

substraight of atherosclerosis which is a 

multifactorial process developing over a 

period of many years in the setting of the 

risk factors outlined in this case. The 

relationship of occupation to the 

development of atherosclerosis is virtually 

nil. 

 Dr. Richard A. Schwartz, who, at Patton's request, examined 

Patton, obtained a history from him and reviewed some of his 

medical records, noted, in addressing Patton's coronary artery 

disease, that, "[i]n this patient, occupational stress, 

hypertension, and possibly diabetes are identifiable factors." 

He continued: 

 Occupational stress is one of the risk 

factors. It cannot be excluded with respect 

to this patient. There are no congenital or 

genetic causes that can be identified 

either. 

 In summary, then Mr. Patton has 

coronary artery disease that developed in 

the course of his employment. This is a 

multifactorial process and multiple factors 

were present in this patient. None can be 

specifically implicated or excluded. 

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 Upon reviewing the evidence on remand, the commission ruled 

as follows: 

 In the present matter, we conclude that 

the employer has rebutted the Code 

§ 65.2-402 presumption. Admittedly, the 

claimant's job was undeniably stressful. 

The medical evidence, however, establishes 

non-work related causes of the claimant's 

heart disease, and establishes that the 

claimant's disease was not caused by his 

employment. Specifically, Dr. Seides opined 

that the claimant's "relatively advanced 

coronary atherosclerosis [was] caused by the 

multiple aforementioned factors" including 

diabetes mellitus, hypercholesterolemia, a 

family history of premature coronary 

disease, and a history of cigarette smoking. 

Dr. Seides also opined that the 

"relationship of occupation to the 

development of atherosclerosis is virtually 

nil." 

* * * * * * * 

 We have carefully considered the fact 

that Dr. Seides is not a treating physician, 

and that he was not aware of the details of 

the claimant's stressful job environment. 

Nevertheless, his is the only physician to 

have expressed a definite opinion of the 

cause of the claimant's heart disease. His 

opinion is logical in light of the numerous 

non-work related factors acknowledged by the 

other physicians. Accordingly, we conclude 

that the employer has established by a 

preponderance of the evidence non-work 

related causes of the disease, and that work 

was not a cause of the disease. 

 However, subsequent to the commission's reconsideration of 

the evidence in this case on remand, we held as follows: 

 Code § 65.2-402 "has long been 

recognized as a remedial statute, enacted by 

the legislature to overcome the difficulty 

that a [police officer] would otherwise have 

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in proving causation." In enacting the 

statute, "[t]he legislature knew that the 

causes of . . . cardiac diseases are unknown 

and that the medical community is split 

regarding the impact of stress and work 

environment on these diseases." By enacting 

the statutory presumption, the General 

Assembly resolved the split in medical 

opinions in favor of the employee and 

adopted the presumption that the stress of 

working as a law enforcement officer causes 

or contributes to the development of heart 

disease. Testimony which merely refutes the 

premise of such a legislatively enacted 

presumption does not constitute proper 

evidence in rebuttal. Where the General 

Assembly has concluded that there is a 

causal link between stress and heart 

disease, it is not for the commission or the 

courts to reconsider the issue, for to do so 

would defeat the intentions of the 

legislature. It thus follows that, "[i]t is 

impermissible for the [commission] to accept 

the opinion of a physician so disposed as 

the basis for disallowing a claim." . . . 

We, accordingly, hold that evidence that 

merely rebuts generally the underlying 

premise of the statute, which establishes a 

causal link between stress and heart 

disease, is not probative evidence for 

purposes of overcoming the presumption. 

Medlin v. County of Henrico Police, 34 Va. App. 396, 406-07, 542 

S.E.2d 32, 38-39 (2001) (alterations in original) (citations 

omitted). 

 We recently applied our holding in Medlin to Dr. Seides' 

medical opinion in Bristol City Fire Dep't and Virginia Mun. 

Group Self-Ins. Ass'n v. Maine, 35 Va. App. 109, 542 S.E.2d 822 

(2001). In that case, Dr. Seides opined regarding the claimant 

firefighter's heart disease as follows: 

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 Mr. Maine has coronary atherosclerosis 

with obstructive coronary artery disease and 

a documented myocardial infarction. The 

cause of the condition is a progressive 

build-up of cholesterol-containing 

atherosclerotic plaque in the coronary 

arteries which surround the heart and 

provide the heart muscle with blood. 

Coronary atherosclerosis is a multifactorial 

disease, in which a number of risk factors 

may play a role in accelerating the 

deposition of plaque material in 

constitutionally susceptible individuals. 

. . . His employment as a firefighter had 

nothing whatsoever to do with the genesis of 

either his underlying coronary 

atherosclerosis or his myocardial 

infarction. Any attempt to associate his 

occupation and his disease is without 

scientific merit. 

Id. at 115, 542 S.E.2d at 825. We concluded that, under Medlin, 

Dr. Seides' opinion did not constitute probative evidence for 

purposes of rebutting the presumption of Code § 65.2-402 because 

it "simply attempt[ed] to discount the presumption of Code 

§ 65.2-402, rather than evaluat[e] whether work was a cause or 

risk factor of the heart disease." Id. at 117, 542 S.E.2d at 

826. 

 In this case, the commission relied wholly upon Dr. Seides' 

medical opinion that the "relationship of occupation to the 

development of atherosclerosis is virtually nil" to conclude 

that Patton's heart disease was not caused by his employment. 

That opinion, however, like Dr. Seides' opinion in Maine, merely 

rebuts generally the underlying premise of Code § 65.2-402(B), 

which establishes the presumptive causal link between 

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occupational stress and heart disease. Accordingly, Dr. Seides' 

opinion that the "relationship of occupation to the development 

of atherosclerosis is virtually nil" is not probative evidence 

for purposes of overcoming the presumption of Code § 65.2-402, 

and the commission erred in relying on it. 

 Disregarding that evidence, we cannot conclude that the 

employer has rebutted the presumption. Hence, we reverse the 

commission's decision and remand this case "to the commission to 

determine whether the employer has sufficiently rebutted the 

presumption in light of the remaining probative evidence." 

Medlin, 34 Va. App. at 408, 542 S.E.2d at 39. 

Reversed and remanded. 

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Willis, J., dissenting. 

 The commission's factual findings, if supported by credible 

evidence, are binding. Jules Hairstylists, Inc. v. Galanes, 1 Va. 

App. 64, 334 S.E.2d 592 (1985). 

 Dr. Stuart Seides, a cardiologist, after reviewing Patton's 

medical records and examining him, reported, in pertinent part: 

Mr. Patton has multiple risk factors for the 

development of coronary heart disease. He 

has documented hypertension, non-insulin 

dependent diabetes mellitus, 

hypercholesterolemia, a family history of 

premature coronary heart disease . . . , and 

previous tobacco abuse . . . . [H]e was 

found to have multi-vessel coronary 

atherosclerosis with critical obstruction of 

the "culprit" right coronary artery . . . , 

but also well developed atherosclerotic 

placquing in the left anterior descending 

and left circumflex systems. . . . Mr. 

Patton had relatively advanced coronary 

atherosclerosis caused by the multiple 

aforementioned factors. . . . [I]t is highly 

likely that the myocardial infarction would 

have occurred in or around the same time 

frame regardless of his activities. 

Although "stress" is often considered to be 

an important trigger for myocardial 

infarction, most infarcts occur in the 

absence of an identifiable environmental 

event and in those cases where there is an 

apparent association, it may be simple 

coincidence. What is most important is the 

presence of the underlying substraight [sic] 

of atherosclerosis which is a multifactorial 

process developing over a period of many 

years in the setting of the risk factors 

outlined in this case. The relationship of 

occupation to the development of 

atherosclerosis is virtually nil. 

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 The commission held: 

We have carefully considered the fact that 

Dr. Seides is not a treating physician, and 

that he was not aware of the details of 

[Patton's] stressful job environment. 

Nevertheless, he is the only physician to 

have expressed a definite opinion of the 

cause of [Patton's] heart disease. His 

opinion is logical in light of the numerous 

non-work related factors acknowledged by the 

other physicians. Accordingly, we conclude 

that the employer has established by a 

preponderance of the evidence non-work 

related causes of the disease, and that work 

was not a cause of the disease. 

This factual finding is supported by Dr. Seides' report. As it 

was entitled to do, the commission believed Dr. Seides and gave 

his findings and conclusions preponderating evidentiary weight. 

The issue on appeal is whether those findings and conclusions, 

so weighed, are sufficient to rebut the presumption set forth in 

Code § 65.2-402. 

 The majority relies on Medlin v. County of Henrico Police, 

34 Va. App. 396, 542 S.E.2d 32 (2001). In Medlin, we said: 

We, accordingly, hold that evidence that 

merely rebuts generally the underlying 

premise of the statute, which establishes a 

causal link between stress and heart 

disease, is not probative evidence for 

purposes of overcoming the presumption. 

Id. at 407, 542 S.E.2d at 39 (emphasis added). 

 Dr. Seides' salient findings and conclusions may be stated 

thus: 

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 (1) Patton's coronary disease was caused exclusively by his 

multi-vessel coronary atherosclerosis and did not derive from 

any other cause. 

 (2) Patton's atherosclerosis did not derive from his 

employment. 

 (3) Patton's atherosclerosis derived altogether from the 

non-employment-related factors described in Dr. Seides' report. 

 In my view, Dr. Seides' report was not merely a general 

rebuttal of the statutory presumption, but was, rather, a 

specific attribution of Patton's coronary disease exclusively to 

non-employment-related factors, satisfying the holding in Medlin

and sufficiently supporting the commission's decision. 

 I would affirm the judgment of the commission. 

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