COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

NEWPORT NEWS SHIPBUILDING 

 AND DRY DOCK COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0497-98-1 PER CURIAM 

 JULY 28, 1998 

DENNIS D. EMERSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Jonathan H. Walker; Mason & Mason, on 

brief), for appellant. 

 (Richard B. Donaldson, Jr.; Kevin W. 

Grierson; Jones, Blechman, Woltz & Kelly, on 

brief), for appellee. 

 Newport News Shipbuilding and Dry Dock Company (hereinafter 

referred to as "employer") contends that the Workers' 

Compensation Commission erred in finding that employer's evidence 

failed to rebut the statutory presumption available to Dennis D. 

Emerson under Code § 65.2-402(B). Upon reviewing the record and 

the briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the commission's 

decision. See Rule 5A:27. 

 "Code § 65.2-402(B) creates a presumption that 

[firefighters'] heart diseases are occupationally related, 

'unless such presumption is overcome by a preponderance of 

competent evidence to the contrary.'" Augusta County Sheriff's 

Dept. v. Overbey, 254 Va. 522, 526, 492 S.E.2d 631, 633 (1997). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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"[T]he term 'firefighter' shall include persons who are employed 

by . . . private employers primarily to perform firefighting 

services." Code § 65.2-402(A). 

 "Code § 65.2-402(B) requires [employer] to establish a 

non-work-related cause for [Emerson's] heart condition and that 

job stress was not the cause." Overbey, 254 Va. at 526, 492 

S.E.2d at 633. "[I]n order to overcome the statutory 

presumption, the employer merely 'must adduce competent medical 

evidence of a non-work-related cause of the disabling disease.'" 

Id. at 527, 492 S.E.2d at 634 (quoting Doss v. Fairfax County 

Fire & Rescue Dept., 229 Va. 440, 442, 331 S.E.2d 795, 796 

(1985)). 

 In ruling that employer's evidence was insufficient to rebut 

the statutory presumption, the commission found as follows: 

 [T]wo of three physicians, both treating 

physicians, Dr. [Peter J.] Zullo and Dr. 

[Paul] Micale, implicate [Emerson's] 

work-related exposure to smoke and fumes as a 

causative factor. Only Dr. [Warren] Israel, 

who did not examine [Emerson], maintains that 

[Emerson's] heart disease is explained by 

other risk factors. Dr. Israel, while 

articulating a thorough foundation for his 

opinion that stress was not a factor, failed 

to so thoroughly explain why [Emerson's] 

occupational exposure to smoke and fumes did 

not, in his opinion, contribute to 

[Emerson's] disease. We therefore do not 

find Dr. Israel's conclusory dismissal of 

occupational exposure to smoke and fumes 

persuasive. Based on that finding, and the 

conflicting medical evidence, we conclude the 

employer failed to establish, by a 

preponderance of competent evidence, a 

non-work-related cause of [Emerson's] 

coronary artery disease. 
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 "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). As fact finder, the commission was 

entitled to give greater weight to the opinions of the treating 

physicians, Drs. Zullo and Micale, and to reject Dr. Israel's 

opinion. Based upon its weighing of the medical evidence, the 

commission was entitled to conclude that Dr. Israel's opinion did 

not constitute competent evidence to rebut the statutory 

presumption. "Questions raised by conflicting medical opinions 

must be decided by the commission." Penley v. Island Creek Coal 

Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). 

 In light of the opinions of Drs. Zullo and Micale, we cannot 

say as a matter of law that employer's evidence rebutted the 

statutory presumption provided under Code § 65.2-402(B). 

 For these reasons, we affirm the commission's decision. 

 Affirmed.