COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Salem, Virginia 

SHERMAN ROY DELP 

 MEMORANDUM OPINION* BY 

v. Record No. 1393-00-3 JUDGE ROBERT J. HUMPHREYS 

 FEBRUARY 27, 2001 

GALAX (CITY OF) POLICE AND 

 VIRGINIA MUNICIPAL GROUP 

 SELF-INSURANCE ASSOCIATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Joseph J. Steffen, Jr., for appellant. 

 Ralph L. Whitt, Jr. (Williams, Lynch & Whitt, 

P.C., on brief), for appellees. 

 Sherman Roy Delp appeals a decision of the Workers' 

Compensation Commission denying his claim for medical and wage 

benefits incurred due to his myocardial infarction of November 

5, 1996.1 Delp contends that his employer, the City of Galax 

Police Department (employer), failed to establish by a 

preponderance of evidence that work-related factors did not have 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

1

 On June 30, 1999, a panel of this Court initially 

considered this appeal, styled as Record No. 2599-98-3. At that 

time, we ordered the matter reversed and remanded and directed 

the commission to enter findings of fact consistent with the 

requirements of Bass v. City of Richmond Police Dep't, 258 Va. 

103, 515 S.E.2d 557 (1999), a case decided by our Supreme Court 

during the pendency of the appeal. The present appeal stems 

from the commission's decision on remand. 
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a causative role in Delp's development of heart disease. 

Finding no error, we affirm the commission's decision. 

 Code § 65.2-402(B) provides the following in pertinent 

part: 

Hypertension or heart disease causing the 

death of, or any health condition or 

impairment resulting in total or partial 

disability of . . . members of county, city 

or town police departments . . . 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. 

The Supreme Court of Virginia has explained that:

Under the statutory language, the employer 

may overcome the presumption by producing "a 

preponderance of competent evidence to the 

contrary." To overcome the presumption the 

employer must show, by a preponderance of 

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. Thus, 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. 

The determination whether the employer has 

met this burden is made by the Commission 

after exercising its role as finder of fact. 

In this role, the Commission resolves all 

conflicts in the evidence and determines the 

weight to be accorded the various 

evidentiary submissions. "The award of the 

Commission . . . shall be conclusive and 

binding as to all questions of fact." 

Bass v. City of Richmond Police Dep't, 258 Va. 103, 114, 515 

S.E.2d 557, 562-63 (1999) (citations omitted). 
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 Here, the evidence established that Delp, age 55 at the 

time of the hearing, was employed as a police officer with 

employer for 25 years. His various positions required him to 

perform many stressful duties, such as traffic control, making 

arrests, intercession in domestic disputes, and maintaining 

order throughout the municipality. He often had to use physical 

force and draw his weapon, and testified that he was "always on 

the run," and "never" got "to relax." Delp also consistently 

smoked two to three packs of cigarettes per day for 

approximately 30 years. He exercised poor dietary habits and 

had a family history of heart disease. Prior to 1996, Delp had 

been diagnosed with high cholesterol, hypertension and 

non-insulin dependent diabetes. 

 On November 5, 1996, Delp experienced persistent shoulder 

pain which prompted him to seek treatment on November 7, 1996. 

Attending physicians diagnosed Delp with a myocardial infarction 

(heart attack). As a result, Delp underwent cardiac 

catheterization and five-vessel coronary by-pass surgery. He 

was discharged on November 16, 1996. 

 Dr. Rodney Savage, the physician who performed Delp's 

catheterization, opined on January 2, 1997, that Delp's cardiac 

risk factors were "age, male sex, smoking, hypercholesterolemia 

and aterial hypertension plus positive family history . . . ." 

Dr. Savage reported that Delp felt his employment had led "to 
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poor eating habits, stress on the job with associated 

hypertension, and continued smoking." In a report of March 20, 

1997, Dr. Savage noted that he suspected these factors "to some 

degree, add[ed] to his non-job related cardiac risk factors." 

 When deposed on June 10, 1997, Dr. Savage declined to 

assert that the job stress actually caused the heart attack, but 

he could not exclude work-related stress as a contributing 

factor to the heart attack or the underlying disease. He 

stated: 

I frankly feel that [Delp's] lifestyle 

habits were so profoundly irresponsible that 

-- for so many years that it is hard for me 

to be highly supportive of the thought that 

it was his job that did it to him. . . . 

* * * * * * * 

[H]is many non-job-related risk factors were 

adequate to explain his development of 

severe diffuse atherosclerosis. Whether or 

not job stress played some role in 

precipitating his heart attack, I can't 

answer . . . . [W]hether or not he spent 

years on a police force hot reacting, 

exacerbating his underlying risk factors, I 

can't tell you. I don't have objective data 

to support that. 

 On March 10, 1997, Dr. Stephen Irvin, Delp's family 

physician, wrote a letter to Delp's counsel stating that Delp's 

employment in a high stress job "could have lead [sic] to his 

recent heart attack." On March 11, 1997, Dr. Strain also wrote 

a letter to Delp's counsel and stated that there were many risk 

factors for coronary disease, such as "diabetes, hypertension, 
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smoking, family history, hyperlipidemia, and also high stress." 

He opined that it was "certainly possible" that Delp's "high 

stress, high exertion job played a role in his heart attack by 

possibly precipitating the heart attack due to stress." 

 Dr. Stuart F. Seides, cardiologist, reviewed Delp's medical 

records and opined on June 2, 1997 that his heart disease could 

not reasonably be attributed to his employment. Dr. Michael L. 

Hess, cardiologist, also read the medical records and concluded 

on June 5, 1997 that Delp's heart disease, and his myocardial 

infarction, resulted from multiple risk factors, not job-related 

stress. 

 The weight to be given the evidence, 

the credibility of witnesses, and the 

resolution of conflicting medical evidence 

are matters solely for the commission to 

decide. "[A] finding by the Commission upon 

conflicting facts . . . is conclusive and 

binding . . ., absent fraud, when such 

determination is supported by competent, 

credible evidence." "On review, we 

determine whether the evidence was 

sufficient to support the finding of fact 

reached by the Commission, not whether the 

evidence was sufficient to have supported a 

contrary finding." 

City of Portsmouth Sheriff's Dep't v. Clark, 30 Va. App. 545, 

553, 518 S.E.2d 342, 346 (1999) (citations omitted). 

 Delp argues that employer failed to show, by a 

preponderance of the evidence, that there was no work-related 
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cause of Delp's heart condition.2 In support of his argument, 

Delp relies on an unpublished decision of this Court in which we 

held evidence that job-related stress is one of several factors 

contributing to a claimant's heart disease, if found credible by 

the commission, is sufficient to prevent an employer from 

proving the first prong required to rebut the presumption. 

However, Delp fails to recognize that there is simply no 

authority requiring an employer to affirmatively exclude 

job-related factors as potentially contributing to or causing 

the disease. In fact, our Supreme Court reiterated its holding 

to this effect in Bass stating, "in the context of our holding 

[in Augusta County Sheriff's Dep't v Overbey, 254 Va. 522, 492 

S.E.2d 631 (1997),] . . . an employer is not required to exclude 

the possibility that job stress may have been a contributing 

factor in the development of a claimant's heart disease." Bass, 

258 Va. at 113, 515 S.E.2d at 562 (emphasis in original). 

 In this case, the commission found the following: 

Dr. Savage refused to link [Delp's] 

employment stress to his heart attack. 

While Dr. Savage could not exclude 

work-related stress as a contributing 

factor, he neither included it. . . . Dr. 

Irvin merely concluded that job stress could

have led to the heart attack. Dr. Strain 

also referred . . . to the mere possibility 

that stress played a role in the heart 

 2

 Delp concedes in his brief on appeal that employer 

established the second prong of the Bass test. Namely, that 

there was a "non-work-related cause of the disease." Therefore, 

we do not address this issue further. 
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attack. Neither Dr. Irvin or [sic] Dr. 

Strain implicated work-related stress as a 

probable contributing cause. 

On the other hand, Dr. Seides concluded that 

[Delp's] heart disease could not be 

reasonably attributed to his employment and 

Dr. Hess opined that the cardiac condition 

resulted from [Delp's] multiple risk 

factors, not job-related stress. We find 

the positive opinions of Drs. Seides and 

Hess to be persuasive. These opinions are 

essentially uncontradicted, as the other 

physicians merely raise the possibility that 

job stress is a contributing cause of 

[Delp's] disease. 

From this evidence, the employer has shown 

that work stress was not a probable cause of 

[Delp's] heart condition. Accordingly, we 

find that the employer has proven both parts 

of the Bass test and rebutted the 

presumption. 

 As the commission correctly noted, none of the medical 

evidence presented, even by Delp's own physicians, affirmatively 

related his employment as a contributing factor or cause of his 

heart condition. Instead, the evidence spoke only in terms of 

possibilities. Thus, viewing the evidence in the light we must, 

we cannot hold that the commission erred in finding that 

employer met the requisite burden of proof to establish that 

Delp's heart condition was not caused by his employment. 

Affirmed.