COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judges Elder and Annunziata 

Argued at Richmond, Virginia 

CITY OF RICHMOND POLICE 

 DEPARTMENT 

 OPINION BY 

v. Record No. 0657-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 9, 1997 

CLAUDE ASHLEY BASS, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Scott C. Ford (Charles F. Midkiff; Midkiff & 

Hiner, on brief), for appellant. 

 Malcolm Parks (Maloney, Barr & Huennekens, on 

brief), for appellee. 

 The City of Richmond Police Department ("employer") appeals 

the Workers' Compensation Commission's decision awarding benefits 

to Claude A. Bass, Jr. ("claimant"). Employer argues that the 

commission erroneously: (1) excluded claimant's testimony 

regarding the relationship between work stress and his 

hypertension; (2) found that his claim was not time-barred; (3) 

found that claimant established the presence of coronary artery 

disease and met his burden of proving a compensable occupational 

disease; and (4) found that employer's evidence was insufficient 

to rebut the statutory presumption of Code § 65.2-402. For the 

reasons that follow, we reverse. 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

I. BACKGROUND

 Claimant is a police captain who has been a member of the 

Richmond Police Department since 1964. During his tenure with 

the department, claimant worked in the organized crime unit, the 

detective division, and the narcotics squad. His duties were 

often dangerous, and he received numerous promotions and 

decorations. 

 In October 1994, while at home preparing supper, claimant 

experienced "a strange sensation, and . . . in a gradual manner, 

almost like a cloud drifting over, [he] lost sight in [his] eye." 

 The vision loss occurred in claimant's left eye and lasted for 

approximately thirty minutes. 

 Claimant went to see Dr. Mullen, his ophthalmologist, on 

October 24, 1994. After examining claimant, Dr. Mullen referred 

him to Dr. Tulou, claimant's primary care physician. On October 

26, 1994, Dr. Tulou referred claimant to Retreat Hospital for 

testing and to Dr. Davis, a vascular surgeon, for treatment. The 

doctors diagnosed an atherosclerotic blockage in claimant's 

carotid artery which had reduced blood flow in his brain and 

caused his episode of vision loss. On November 10, 1994, 

claimant was admitted to Retreat Hospital for surgery to correct 

the blockage. While he was hospitalized, claimant also had 

surgery on a similar blockage in his iliac artery. Claimant was 

incapacitated until December 5, 1994, when he resumed his full 

duties as a police officer. 
 3 

 On April 15, 1996, claimant filed a claim for benefits for 

this injury. On May 6, 1996, claimant's counsel filed an amended 

application for a hearing, requesting compensation for lost wages 

and payment of lifetime medical costs. 

 It is undisputed that claimant has suffered from 

hypertension, or high blood pressure, since the 1970s. Claimant 

stated that he had never missed any time from work due to his 

hypertension prior to October 1994. It is also uncontroverted 

that claimant was a smoker who had been counseled over the years 

about controlling his cholesterol and his weight. Claimant 

testified that, until October 1994, he had never been told that 

he had heart disease, vascular disease, or atherosclerosis. He 

admitted that he had been told that he had high blood pressure; 

however, he stated that the various doctors with whom he 

discussed his high blood pressure did not indicate that his 

condition was related to his work as a police officer. 

 Dr. Tulou described claimant's condition as "atherosclerosis 

with cholesterol deposits compromising [blood] flow." Though "it 

is certainly not exclusively a heart disease," there is "evidence 

on the basis of a thallium scan of the heart that the tip thereof 

is not receiving adequate blood." Dr. Tulou gave conflicting 

statements on the relationship between claimant's work and his 

condition. In a letter to claimant's attorney, Dr. Tulou had 

"absolutely no reservation in stating that [claimant's] work as a 

police officer in large measure contributed to his hypertension," 
 4 

and claimant's "hypertension is clearly a risk factor for any 

atherosclerotic process." Therefore, Dr. Tulou felt that 

claimant's "disability . . . was related to his work-related 

hypertension." 

 However, in a later deposition, Dr. Tulou stated that 

whether claimant's hypertension and atherosclerosis were caused 

by his work in any way was "a philosophical question. Speaking 

from a strictly scientific basis, no, not really. . . . I think 

it remains speculative as to whether the job itself did it." 

When questioned whether claimant's condition was caused by 

stress, Dr. Tulou responded: "I just can't make a definitive 

statement one way or the other how that contributed. . . . In 

this particular case, I don't feel strongly one way or the other 

that it did or did not create his condition or contribute to his 

condition." Finally, when claimant's attorney queried whether, 

in Dr. Tulou's opinion to a reasonable degree of medical 

probability, claimant's work played a role in his hypertension, 

Dr. Tulou answered: "Plausibly a role, yes." 

 Dr. Davis saw claimant on November 7, 1994, upon referral 

from Dr. Tulou. He diagnosed claimant with "atherosclerosis 

which had become symptomatic in his left carotid and right 

iliac." He explained that "[a]therosclerosis . . . is a disease 

of the arteries. It can involve the arteries of the heart and 

create heart attacks; although, [claimant] showed none of these 

symptoms at the time of his care." Regarding the relationship 
 5 

between claimant's condition, atherosclerosis, and his work, Dr. 

Davis indicated that "[t]he probable cause of his condition is 

genetic and environmental, and I cannot rule out work stress as a 

contributor to his diagnosis." He declined to comment on whether 

claimant suffered from heart disease or whether claimant's work 

as a police officer contributed to any such heart disease. 

 Dr. Hess reviewed claimant's medical history and answered 

employer's questions. Dr. Hess offered a diagnosis of 

"accelerated atherosclerotic cardiovascular disease" as a result 

of "the hypertensive syndrome with a combination of hypertension, 

cigarette smoking, and hypercholesterolemia." Regarding the 

source of claimant's disease, Dr. Hess stated that "there is no 

identifiable organic cause for his hypertension, and this more 

than likely represents a genetic predisposition in combination 

with his risk factors." As to the role of work stress in 

claimant's condition, Dr. Hess indicated that "there is very 

little objective proof that stress plays a major contributory 

role." Consequently, "from a medical viewpoint, it is extremely 

difficult to incriminate the stress of command on a police 

officer in giving him his present problems." 

 Lastly, the record contains correspondence from Dr. Melhorn, 

the doctor who diagnosed claimant's hypertension in the 1970s. 

On July 15, 1996, Dr. Melhorn answered certain general questions 

posed by employer. He stated that he recalled treating claimant 

in the 1970s; that it was his "normal practice to discuss any 
 6 

conditions which would require medication with a patient when 

such a condition is discovered"; that he would typically discuss 

with a patient the probable causes or contributing factors for 

such a condition in order to help him avoid or reduce future 

problems; that work-related stress "could be" a causal factor in 

claimant's hypertension because "stress does play a part in 

hypertension"; and that it was his normal practice to discuss the 

stress factor with a patient. Dr. Melhorn responded, "Yes - 

probably" to the inquiry: "Given that you knew he was a police 

officer, that he had hypertension and needed medication for it, 

do you believe that you most probably told the patient that work 

related stress was a factor in his diagnosis of hypertension in 

the 1970s?" 

 However, on July 16, 1996, Dr. Melhorn wrote a letter to 

claimant's counsel addressing his specific concerns regarding his 

treatment of claimant and his earlier statements: 

 I wish to state that I do not have the chart 

or records of my treatment of [claimant], and 

I do not have any independent recollection of 

having discussed with [claimant] the question 

of whether the hypertension with which I 

diagnosed in him [sic] years ago was related 

to his work. 

 When questioned about his past treatment with Dr. Melhorn, 

claimant testified as follows: 

 I wouldn't stretch anybody's imagination to 

think that I could recall a conversation in 

the '70's, other than he stressed to me the 

seriousness of taking the [blood pressure] 

medicine and of going back to Dr. Gill to 

have him monitor and be sure in fact that it 

was a problem. As far as work, I can only 
 7 

say that I have no recollection of him saying 

that it was work related, and if he had, I 

feel confident I would have followed up on 

that. 

 The deputy commissioner awarded claimant compensation for 

temporary total disability for the period November 10 through 

December 4, 1995, together with related medical expenses. 

 The commission affirmed the decision of the deputy 

commissioner. In doing so, it rejected "employer's argument that 

the Deputy Commissioner erred in not permitting the claimant to 

testify to his own opinion, as to whether stress was a factor in 

causing his hypertension. Inasmuch as this is strictly a medical 

issue, his testimony as to stress being a cause of high blood 

pressure would have no probative value." 

 Next, the commission found that "there was insufficient 

evidence of a communication or awareness of an occupational 

disease more than two years before the filing of the Claim for 

Benefits on April 15, 1996." Thus, the commission rejected 

employer's statute of limitations defense. 

 The commission also determined that: "the medical records 

sufficiently establish the presence of coronary artery disease. 

. . . There is no medical evidence to the contrary, and this 

element of the claimant's case is clearly established." 

Additionally, noting the statutory presumption, the commission 

found "no evidence that the Deputy Commissioner failed to 

consider [employer's] rebuttal medical evidence." Rather, the 

commission stated that "the rebuttal evidence was not persuasive 
 8 

and . . . claimant's evidence was sufficient to bring him within 

the purview of the presumption." 

 Finally, the commission found "no evidence that the Deputy 

Commissioner failed to consider medical evidence from physicians 

other than Dr. Tulou, regarding the treatment of the claimant's 

hypertension." Accordingly, the commission considered any 

factual conflicts in the evidence and concluded that "all the 

medical evidence was weighed, and a finding was made on this 

issue based upon the entire record and its conflicts so far as 

they existed." The commission concluded that employer's evidence 

was insufficient to overcome the statutory presumption that 

claimant's work stress was causally related to his disability. 

II. EXCLUDED TESTIMONY

 Proffer facilitates appellate review of an exclusion of 

testimony. "[W]hen testimony is rejected before it is delivered, 

an appellate court has no basis for adjudication unless the 

record reflects a proper proffer." Whittaker v. Commonwealth, 

217 Va. 966, 968, 234 S.E.2d 79, 81 (1977) (citation omitted). 

"[I]t is incumbent upon the proponent of the evidence to make a 

proffer of the expected answer." Speller v. Commonwealth, 2 Va. 

App. 437, 440, 345 S.E.2d 542, 545 (1986). Without a proffer, 

"we are precluded from a consideration of this issue on appeal." 

Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519, 

521 (1992). 
 9 

 The rule is the same for administrative proceedings.1

 "When 

a deputy commissioner refuses to admit evidence . . . 'the party 

must proffer or avouch the evidence for the record.'" Daniel 

Constr. Co. v. Tolley, 24 Va. App. 70, 79, 480 S.E.2d 145, 149 

(1997) (quoting Smith v. Hylton, 14 Va. App. 354, 357, 416 S.E.2d 

712, 715 (1992)). "[O]therwise, the appellate court has no basis 

to decide whether the party was prejudiced by the deputy 

commissioner's error." Daniel Constr. Co., 24 Va. App. at 79, 

480 S.E.2d at 149 (citation omitted). 

 In the instant case, employer asked claimant whether, before 

his loss of vision episode, he ever thought work stress was a 

factor in his high blood pressure, a question clearly relevant to 

his awareness of the possibility of an occupational disease.2 

 

 1In the administrative context, parties must proffer 

excluded evidence to complete the record for review within the 

agency as well as in the appellate court. The Workers' 

Compensation Commission regularly relies on proffered evidence 

and rejects claims for review in the absence of proffer. See, 

e.g., Harrison v. Mary Washington Hosp., Claim No. 1755140 

(Workers' Comp. Comm'n Jan. 23, 1997) (deputy commissioner 

initially accepted report only as a proffer and later admitted it 

as evidence); Roman v. Holland, Claim No. 1679334 (Workers' Comp. 

Comm'n June 11, 1996) (commission could not review exclusion of 

testimony in absence of proffer); Miller v. James City County, 

Claim No. 1722233 (Workers' Comp. Comm'n Oct. 17, 1995) 

(commission cannot determine whether error was harmful without 

proffer); Jackson v. Castle Bros. Track & Roller, Claim No. 

1629399 (Workers' Comp. Comm'n Aug. 24, 1994) (proffer 

demonstrated error in exclusion of testimony; decided on other 

grounds); Williams v. Nielson Constr. Co., Claim No. 1515279 

(Workers' Comp. Comm'n Sept. 14, 1993) (review of proffer of 

excluded testimony reveals exclusion was harmless error). 

 2Though the question did not specify "work" stress, the 

context shows that the parties were discussing the stress 

associated with being a police officer. 
 10 

The deputy commissioner ruled that claimant's reply would not be 

material. Claimant did not answer the question, and employer did 

not proffer any expected testimony. The content and timing of 

claimant's knowledge of the relationship between his work and his 

disease were clearly relevant to the statute of limitations 

issue. However, we have "no basis to decide whether [employer] 

was prejudiced by the deputy commissioner's error," because 

employer failed to proffer the expected answer. Id. 

Consequently, we cannot consider the exclusion of this evidence 

on appeal. 

III. STATUTE OF LIMITATIONS

 The Workers' Compensation Act provides that claimants must 

file for compensation for occupational diseases within "two years 

after a diagnosis . . . is first communicated to the employee." 

Code § 65.2-406(A)(5). The statute "does not require that an 

employee receive from a physician a communication that his 

disease is work related." City of Alexandria v. Cronin, 20 Va. 

App. 503, 508, 458 S.E.2d 314, 317 (1995), aff'd, 252 Va. 1, 471 

S.E.2d 184 (1996). It requires only that he "learn that the 

condition is an occupational disease for which compensation may 

be awarded." Id. at 509, 458 S.E.2d at 317. 

 "Whether a diagnosis of an occupational disease was 

communicated and when the communication occurred are factual 

determinations." Uninsured Employer's Fund v. Mounts, 24 Va. 

App. 550, 558, 484 S.E.2d 140, 144 (1997) (citing Roller v. Basic 
 11 

Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989)). On 

appeal, we will uphold the commission's findings of fact when 

they are supported by credible evidence. See Mounts, 24 Va. App. 

at 558, 484 S.E.2d at 144 (citing James v. Capitol Steel Constr. 

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)). 

 Viewed in the light most favorable to claimant, who 

prevailed before the commission, see Fairfax County v. Espinola, 

11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990), the record 

establishes that claimant had no knowledge of his heart disease 

until after the October 1994 loss of vision episode. 

Additionally, although claimant was aware that he had 

hypertension in the 1970s, Dr. Melhorn's letter and claimant's 

testimony about his treatment provide credible evidence that 

claimant did not learn of any work connection to the condition or 

that he had a compensable occupational disease before October 

1994. Thus, based upon this record, we cannot hold as a matter 

of law that the commission erred in finding that claimant's 

application was not barred by the statute of limitations. 

IV. COMPENSABLE OCCUPATIONAL DISEASE

 To recover compensation for an ordinary disease of life as 

an occupational disease, a claimant must establish "by clear and 

convincing evidence, to a reasonable medical certainty, that [his 

illness] arose out of and in the course of his employment." Code 

§ 65.2-401.3

 However, the legislature "has accorded policemen 

 

 3In 1997 Code § 65.2-401 was amended to delete "to a 

reasonable medical certainty," and to add "(not a mere 
 12 

who suffer from heart disease or hypertension preferential 

status." Department of State Police v. Talbert, 1 Va. App. 250, 

253, 337 S.E.2d 307, 308 (1985). Code § 65.2-402 creates a 

rebuttable presumption that a causal connection exists between an 

individual's employment as a police officer and certain diseases. 

 "A presumption is a rule of law that compels the fact finder 

to draw a certain conclusion . . . from a given set of facts." 

Martin v. Phillips, 235 Va. 523, 526, 369 S.E.2d 397, 399 (1988) 

(citing Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320, 

329 (1934)). "The primary significance of a presumption is that 

it operates to shift to the opposing party the burden of 

producing evidence tending to rebut the presumption." Martin, 

235 Va. at 526, 369 S.E.2d at 399. Here, "[t]he effect of the 

presumption is to eliminate the need for a claimant to prove a 

causal connection between his disease and his employment." City 

of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243, 

244-45 (1992). "In the absence of competent evidence to the 

contrary, the statutory presumption controls, and the claimant 

prevails." Fairfax County Fire & Rescue Dep't v. Mitchell, 14 

Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992). 

 To trigger the presumption, claimant need only prove his 

occupation and his disability from heart disease or hypertension, 

the diseases identified in Code § 65.2-402. Once claimant has 

established his prima facie case, "[t]he presumption shifts the 

 

probability)." 
 13 

burden of going forward with the evidence from the claimant to 

his employer." Id.

 Proof of claimant's disability from heart disease or 

hypertension depends upon medical evidence. "A question raised 

by conflicting medical opinion is a question of fact." 

Department of Corrections v. Powell, 2 Va. App. 712, 714, 347 

S.E.2d 532, 533 (1986). "Decisions of the commission as to 

questions of fact, if supported by credible evidence, are 

conclusive and binding on this Court." Manassas Ice & Fuel Co. 

v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). 

 In the instant case, the commission found that "the medical 

records sufficiently establish the presence of coronary artery 

disease," under Code § 65.2-402. Dr. Tulou testified that a 

thallium scan showed inadequate blood flow through the coronary 

arteries. This testimony provides credible evidence in support 

of the commission's finding. "The fact that there is contrary 

evidence in the record is of no consequence if there is credible 

evidence to support the commission's finding." Wagner Enters., 

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) 

(citation omitted). Consequently, we cannot hold that the 

commission erred in finding that the claimant established a 

compensable occupational disease, utilizing the presumption 

contained in Code § 65.2-402. 

V. SUFFICIENCY OF EMPLOYER'S REBUTTAL EVIDENCE

 In a recent decision, the Supreme Court reaffirmed the 
 14 

standard for an employer seeking to rebut a law enforcement 

officer's use of the causation presumption. "[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.'" Augusta County Sheriff's Dep't v. 

Overbey, No. 962561 (Oct. 31, 1997), ___ Va. ___, ___ S.E.2d ___ 

(1997) (citing Doss v. Fairfax County Fire & Rescue Dep't, 229 

Va. 440, 442, 331 S.E.2d 795, 796 (1985)). The Court announced 

that 

 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. 

Overbey, ___ Va. at ___, ___ S.E.2d at ___. 

 In the instant case, Dr. Davis indicated that the "probable 

cause of [claimant's] condition is genetic and environmental," 

and Dr. Hess attributed claimant's cardiovascular disease to "a 

genetic predisposition in combination with his risk factors." 

Under the standard set forth in Overbey, this evidence of a 

genetic cause sufficiently rebutted the statutory presumption 

that claimant's heart disease is work-related. 

 Without the benefit of the statutory presumption to 

establish a causal relationship between his job as a police 

officer and his heart disease, claimant "had the burden of 

'establishing by clear and convincing evidence, to a reasonable 

degree of medical certainty,' that his [condition] arose out of 
 15 

and in the course of his employment." Overbey, ___ Va. at ___, 

___ S.E.2d at ___. Although claimant's job was undeniably 

stressful, claimant failed to meet this burden. None of the 

doctors opined to a reasonable degree of medical certainty that 

job stress was a causative factor in the disease claimant 

suffered. Cf. Duffy v. Commonwealth, 22 Va. App. 245, 251, 468 

S.E.2d 702, 705 (1996) (employer's evidence failed to rebut 

presumption by a preponderance of the evidence and the statutory 

presumption thus controls). Thus, the evidence was insufficient 

to establish "to a medical certainty" that his heart disease 

arose out of his employment. Therefore, we are required to 

reverse the commission's award and dismiss claimant's application 

for benefits. 

 Reversed.