COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Hodges 

Argued at Salem, Virginia 

WYTHEVILLE (TOWN OF) LAW ENFORCEMENT AND 

 VIRGINIA MUNICIPAL GROUP 

 SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION* BY 

v. Record No. 2689-02-3 JUDGE WILLIAM H. HODGES 

 APRIL 8, 2003 

JERRY EDWARD WHEELER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Ralph L. Whitt, Jr. (Michael P. Del Bueno; 

Whitt & Associates, on briefs), for 

appellants. 

 Ginger J. Largen (Morefield & Largen, P.L.C., 

on brief), for appellee. 

 Wytheville (Town of) Law Enforcement and its insurer 

(hereinafter referred to as "employer") appeal a decision of the 

Workers' Compensation Commission awarding temporary total 

disability benefits and medical benefits to Jerry Edward Wheeler 

(claimant) for an occupational disease, heart disease. Employer 

contends the commission erred in (1) finding that employer 

failed to rebut the statutory presumption set forth in Code 

§ 65.2-402; (2) finding that employer failed to prove a specific 

non-work-related cause resulted in claimant's heart disease; 

 

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

designated for publication. 
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(3) applying an incorrect legal standard by holding that 

employer did not prove by a preponderance of the evidence "that 

a specific, non-work related cause resulted in the claimant's 

heart disease"; (4) finding that employer failed to prove that 

claimant's employment was not a cause of his heart disease; (5) 

applying an incorrect legal standard in concluding that employer 

failed to prove that claimant's employment was not a cause of 

his heart disease; (6) finding that the medical evidence from 

Dr. Holly L. Smith, claimant's family physician, preponderated 

in establishing that claimant's employment was a cause of his 

heart disease; and (7) finding that the medical evidence from 

Dr. Bruce L. Fariss, claimant's endocrinologist, preponderated 

in establishing that the claimant's employment was a cause of 

his heart disease. For the following reasons, we affirm the 

commission's decision. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

The factual findings of the commission are 

conclusive and binding on appeal if 

supported by credible evidence in the 

record. "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." "This rule applies 

when an expert's opinion contains internal 

conflict." "Likewise, the [c]ommission's 

conclusions upon conflicting inferences, 

legitimately drawn from proven facts, are 

equally binding on appeal." "In determining 

whether credible evidence exists, the 
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appellate court does not retry the facts, 

reweigh the preponderance of the evidence, 

or make its own determination of the 

credibility of the witnesses." 

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552 

S.E.2d 372, 375 (2001) (citations omitted). 

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

Hypertension or heart disease causing . . . 

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. 

 To rebut this 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." Bass v. City of 

Richmond Police Dep't, 258 Va. 103, 112, 515 S.E.2d 557, 561-62 

(1999). 

 In providing that the statutory presumption may be overcome 

by a preponderance of the evidence to the contrary, Code 

§ 65.2-402(B) implicitly directs the commission as finder of 

fact to consider all evidence on the issue of causation 

presented by the claimant, as well as by the employer. When the 

commission determines that the employer has failed to overcome 

the statutory presumption, the claimant is entitled to an award 

of benefits under the Act. See Code §§ 65.2-400 to -407. On 
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appeal from this determination, the reviewing court must assess 

whether there is credible evidence to support the commission's 

award. Bass, 258 Va. at 114, 515 S.E.2d at 563. 

 Although employer raised numerous "Questions Presented" in 

its opening brief, the dispositive issue is whether employer 

rebutted the first prong of the Bass test, that is, whether the 

evidence preponderated in showing that claimant's work was not a 

contributing cause of his heart disease. 

 In ruling that the evidence did not preponderate to prove 

that claimant's work was not a cause of the development of his 

heart disease, the commission found as follows: 

Dr. Smith directly attributed the claimant's 

cardiac condition to his occupation. She 

advised on October 18, 2001, that the 

claimant's work schedule "significantly 

contributed to his cardiac disease, 

worsening of diabetic control, and blood 

pressure control, therefore increasing and 

accelerating his heart disease." 

Subsequently, Dr. Smith concluded that the 

claimant should not return to work to avoid 

accelerating his cardiac condition. 

Similarly, Dr. Fariss agreed that the 

claimant's swing-shift schedule hindered his 

ability to control his diabetes. 

 Dr. Greenfield considered 

non-work-related risk factors to be the 

likely causes of the claimant's heart 

disease. However, he did not rule out the 

claimant's employment as a cause of his 

heart condition. Instead, Dr. Greenfield 

testified that he had no opinion on 

causation . . . . 

 The opinions of Drs. Smith and Fariss, along with 

Dr. Greenfield's refusal to render any definitive opinion as to 
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whether claimant's employment was a cause of his heart disease, 

constitute credible evidence to support the commission's finding 

that employer failed to show by a preponderance of the evidence 

that claimant's work was not a cause of his heart disease. 

Thus, because employer did not meet its burden under the first 

prong of the Bass test, it failed to rebut the statutory 

presumption contained in Code § 65.2-402(B). 

 Employer argues that the commission took portions of 

Dr. Greenfield's deposition testimony out of context and ignored 

the balance of his testimony. To the contrary, the commission 

weighed Dr. Greenfield's testimony and concluded that he could 

not rule out claimant's employment as a cause of his heart 

disease. "Although some of [the physician's] . . . statements 

. . . may arguably conflict with each other, the commission, as 

fact finder, was entitled to determine the weight, meaning, and 

credibility to give his respective responses and statements and 

to reconcile any possible conflicts therein." Etter, 36 

Va. App. at 445, 552 S.E.2d at 375. In light of 

Dr. Greenfield's arguably conflicting statements, the 

commission, as fact finder, was entitled to conclude that he did 

not render any opinion as to whether claimant's employment was a 

contributing cause of his heart disease. Thus, credible 

evidence supports the commission's conclusion that 

Dr. Greenfield's testimony was not sufficient to prove by a 
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preponderance of the evidence that claimant's employment was not 

a cause of his heart disease. 

 Employer also argues that the commission gave undue weight 

to the opinions of Drs. Smith and Fariss in finding that 

employer failed to establish by a preponderance of the evidence 

that claimant's employment was not a contributing factor in the 

development of his heart disease. As fact finder, the 

commission was entitled to weigh the medical evidence, and 

determine what weight, if any, to assign to the physicians' 

opinions. The commission weighed the medical evidence, and 

concluded that Dr. Smith directly attributed claimant's heart 

condition to his employment and that Dr. Fariss agreed that 

claimant's shift-work hindered his ability to control his 

diabetes. Credible evidence, including Dr. Smith's October 18, 

2001 letter to claimant's counsel and Dr. Fariss's March 14, 

2001 office notes, supports those commission findings, and they 

will not be disturbed on appeal. 

 Because we find that credible evidence supports the 

commission's finding that employer failed to prove by a 

preponderance of the evidence that claimant's employment was not 

a contributing cause of his heart disease, we need not consider 

whether the evidence was sufficient to prove the second prong of 

the Bass test in order to conclude that employer has failed to 

rebut Code § 65.2-402's presumption that claimant's heart 

disease is occupational. We find no merit in employer's 
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argument that the commission applied an incorrect legal standard 

in rendering its decision. 

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

Affirmed.