Present: Carrico, C.J., Compton, Lacy, Hassell, and Kinser, JJ., 

and Stephenson and Whiting, Senior Justices 

AUGUSTA COUNTY SHERIFF'S DEPARTMENT, ET AL. 

 OPINION BY 

v. Record No. 962561 SENIOR JUSTICE HENRY H. WHITING 

 October 31, 1997 

PATRICK L. OVERBEY 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In an employer's appeal of a workers' compensation claim, we 

consider a provision in Code § 65.2-402(B) which creates a 

presumption that a deputy sheriff's heart disease was an 

occupational disease suffered in the line of duty "unless such 

presumption is overcome by a preponderance of competent evidence 

to the contrary."1

 While on duty and talking to another deputy sheriff, Deputy 

Sheriff Patrick Lindy Overbey sustained sharp chest pains for a 

period of 9 or 10 minutes on the morning of January 31, 1995. 

Later that day, acting as a deputy sheriff-security guard at a 

local high school basketball game, Overbey again suffered chest 

pains which his attending physician, Dr. David B. Chernoff, 

diagnosed as a myocardial infarction or "heart attack." 

 Following a period of hospitalization and recovery, Overbey 

filed a claim for workers' compensation against his employer, the 

 

 1Code § 65.2-402(B) provides in pertinent part: 

 Hypertension or heart disease causing . . . any health 

condition or impairment resulting in total or partial 

disability of . . . [certain law enforcement officers 

including] 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. 
 -2- 

Augusta County Sheriff's Department, and its insurer, the 

Virginia Municipal Group Self-Insurance Association 

(collectively, the employer). Asserting that Overbey's 

disability was not the result of an occupational disease suffered 

in the line of his duties as a deputy sheriff, the employer 

denied liability. 

 After a hearing, a deputy commissioner of the Workers' 

Compensation Commission dismissed the claim on the ground that 

the evidence was sufficient to overcome the Code § 65.2-402(B) 

presumption that Overbey's heart disease was a result of workrelated causes. On Overbey's appeal, the Workers' Compensation 

Commission disagreed with the deputy commissioner and awarded 

benefits. On the employer's appeal, the Court of Appeals 

affirmed the Commission's decision. Concluding that this case 

involves matters of significant precedential value, we awarded an 

appeal to the employer. Code § 17-116.07(B). 

 Prior to the hearing before the deputy commissioner, the 

employer took the deposition of Dr. Chernoff. According to Dr. 

Chernoff, although there was no "single etiologic cause" for 

Overbey's heart attack, there were several "risk factors" which 

he thought caused the attack. Dr. Chernoff listed the following 

risk factors: (1) a history of heavy smoking (according to 

Overbey, he had smoked from two to two-and-a-half packs of 

cigarettes each day from age 19 until he had his heart attack at 

the age of 41); (2) elevated cholesterol; (3) a family history of 
 -3- 

heart trouble (Overbey's father had a heart attack while "in his 

50's"); and (4) non-insulin-dependent diabetes mellitus coupled 

with a strong family history of diabetes. 

 Although Dr. Chernoff did not ask Overbey about his specific 

job duties, Dr. Chernoff had previously treated "a few" law 

enforcement officers in the Staunton area and "a number of 

Security Police" while he was a physician in the United States 

Air Force. Dr. Chernoff testified that, in his opinion, 

Overbey's employment was not a risk factor or a cause of his 

heart disease. However, on cross-examination, Dr. Chernoff 

indicated that it was "possible" that "stress" may have 

contributed to cause Overbey's heart attack. 

 Overbey testified about the stressful incidents in his job. 

 In his regular duties as a civil process server, he had many 

papers to serve in a limited time, occasionally upon people who 

were uncooperative. Overbey also testified that while serving 

papers, he encountered dogs "two or three times a week." He 

responded to domestic violence calls "[a]bout once a week," house 

or bank burglar alarms on an "average of two or three a week," 

and "on occasions," he "worked accidents." When he could "feel" 

his heart racing while driving a car at work, he would "just pull 

off the side of the road and just wind down." 

 Approximately three weeks before Overbey's heart attack, his 

wife was suspended from her job, and a few days later she was 

charged with embezzlement and forgery. About a week before his 
 -4- 

 

heart attack, Overbey and his wife separated. Overbey testified 

that his state of mind was "easier" after the separation. 

However, when Dr. Chernoff was treating Overbey's heart disease, 

Overbey's description of his wife's legal problems caused Dr. 

Chernoff to describe them as the "main stressor." No physician 

contradicted Dr. Chernoff's testimony listing the non-job-related 

risk factors which he thought contributed to cause Overbey's 

heart disease. 

 To recover compensation for heart disease, a workers' 

compensation claimant must ordinarily establish, among other 

things, that the illness is an "occupational disease . . . by 

clear and convincing evidence, to a reasonable medical certainty, 

[and] that it arose out of and in the course of employment." 

Code § 65.2-401.2

 However, in the case of certain law 

enforcement officials, including deputy sheriffs, Code § 65.2-

402(B) creates a presumption that their heart diseases are 

occupationally related, "unless such presumption is overcome by a 

preponderance of competent evidence to the contrary." 

 The employer concedes that the presumption in Code § 65.2-

402(B) requires it to establish a non-work-related cause for 

Overbey's heart condition and that job stress was not the cause. 

 2In 1997, Code § 65.2-401 was amended to delete "to a 

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

probability)." 
 -5- 

 Overbey contends that this presumption also imposes the burden 

upon the employer of producing a preponderance of evidence 

excluding the possibility that his heart disease was work 

related. The employer responds that Overbey's contention adds an 

additional burden upon it that is neither stated nor implied in 

the statute. 

 We agree with the employer. In Page v. City of Richmond, 

218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978), this Court noted 

that in rebutting the presumption that heart disease is work 

related, the employer must adduce competent medical evidence of a 

non-work-related cause. 

 Overbey suggests that in County of Amherst v. Brockman, 224 

Va. 391, 399, 297 S.E.2d 805, 810 (1982), we established an 

obligation that the employer "exclude" the "possibility" of jobrelated causes. We disagree. In Brockman, our statement about 

the employer's failure to "exclude stress as a possible 

'contributing cause'" was made in the context of our affirmance 

of the Commission's award of compensation based upon conflicting 

medical evidence. In Brockman, not only had the employer failed 

to exclude job-related stress as a cause, but its medical 

evidence of a non-job-related cause of heart attacks was 

contradicted by other medical evidence "adopted" by the deputy 

commissioner and the full Workers' Compensation Commission on 

review. Id., 297 S.E.2d at 809. Here, there was no medical 

evidence other than that presented by the employer. 
 -6- 

 Our decisions subsequent to Brockman have applied the basic 

standard noted in Page with no suggestion that the employer's 

proof must exclude the possibility of all job-related causation 

hypotheses. Thus, in Doss v. Fairfax County Fire & Rescue 

Department, 229 Va. 440, 442, 331 S.E.2d 795, 796 (1985), the 

Court simply applied the conclusion stated in Page that in order 

to overcome the statutory presumption, the employer merely "must 

adduce competent medical evidence of a non-work-related cause of 

the disabling disease." That burden has been met upon submission 

of competent medical evidence that the claimant's condition was 

more than likely a hereditary phenomenon, id., or a showing that 

the claimant's heart condition was "generally thought to be 

congenital" or was "probably" congenital. Cook v. City of 

Waynesboro Police Department, 225 Va. 23, 28-30, 300 S.E.2d 746, 

748-49 (1983). Thus, 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. 

 Because we conclude that the employer introduced sufficient 

evidence to rebut the presumption, Overbey 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. See Code § 65.2-401. As noted, no 

medical expert contradicted Dr. Chernoff's opinion. Hence, 
 -7- 

Overbey's description of his work stresses was, as a matter of 

law, insufficient to establish "to a reasonable medical 

certainty" that his heart disease arose out of his employment. 

For these reasons, we reject Overbey's contention that his claim 

for compensation was properly awarded under the "two causes 

rule." That rule applies when the evidence shows that an 

employee's "'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)). Here, 

as we have said, the employer has met the burden of overcoming 

the statutory presumption and Overbey has not shown that his 

heart disease arose out of his employment. Thus, he has not 

shown that there was a cause "related to the employment," an 

essential component of the "two causes rule." 

 Accordingly, we will reverse the judgment of the Court of 

Appeals and dismiss the claimant's application for benefits. 

Reversed and dismissed.