COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

COUNTY OF YORK FIRE & RESCUE and 

 VIRGINIA MUNICIPAL GROUP 

 SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 0879-97-4 SEPTEMBER 9, 1997 

 

DONALD M. DINSE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Daniel G. Bloor; Midkiff & Hiner, on brief), 

for appellantS. 

 (Michael A. Kernbach; Jack A. Burgess & 

Associates, on brief), for appellee. 

 County of York Fire & Rescue (hereinafter referred to as 

"employer") contends that the Workers' Compensation Commission 

erred in finding that (1) Donald M. Dinse, a firefighter, proved 

he sustained disability causally related to his hypertension, 

entitling him to the presumption contained in Code § 65.2-402(B); 

(2) Dinse's hypertension did not pre-exist his employment with 

employer; and (3) the employer's evidence failed to rebut the 

presumption contained in 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. Rule 5A:27. 

 

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

designated for publication. 
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 I. 

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

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

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

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

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

 In holding that Dinse proved he sustained disability 

causally related to his hypertension, the commission found as 

follows: 

 The medical records indicate that 

[Dinse] was admitted to the 

Williamsburg Community Hospital on 

August 31, 1994, complaining of 

chest pain. Dr. Steven Cummings 

diagnosed esophageal spasm, 

hypertension, and hyperventilation. 

 Dr. Cummings prescribed 

medication, and sent [Dinse] "home 

to bed." Dr. Cummings signed a 

Quick-Fax Report dated August 31, 

1994, indicating a diagnosis of 

hypertension and chest pain. He 

recommended modified duty until 

September 7, 1994. Approximately, 

six months later, on March 14, 

1995, Dr. Cummings, in answering a 

question posed by the employer, 

indicated that [Dinse] had not 

suffered any disability from work 

as a result of his hypertension. 

We find [Dinse's] testimony and the 

contemporaneous medical records 

more persuasive, and find that 

[Dinse] did, in fact, suffer 

disability caused by his 

hypertension, as indicated in the 

Quick-Fax Report. 

 "Medical evidence is not necessarily conclusive, but is 
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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). Furthermore, "[i]n determining whether 

credible evidence exists, the appellate court does not retry the 

facts, reweigh the preponderance of the evidence, or make its own 

determination of the credibility of the witnesses." Wagner 

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

(1991). 

 The commission was entitled to accept Dr. Cummings' opinions 

contained in the Quick-Fax Report and to give little probative 

weight to his opinion rendered six months later. The Quick-Fax 

Report, coupled with Dinse's testimony, constitutes credible 

evidence to support the commission's finding that Dinse proved he 

suffered disability due to his hypertension. "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." 

Id.

 II. 

 Dinse denied ever receiving a diagnosis of hypertension 

before he began working for the employer. Dinse's Navy discharge 

examination did not contain a diagnosis of hypertension. In 

addition, Dinse received a pre-employment physical, which did not 

indicate a diagnosis of hypertension. This credible evidence 

supports the commission's finding that Dinse was not suffering 

from hypertension when he began working for the employer. 
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Therefore, Dinse was entitled to the presumption contained in 

Code § 65.2-402(B). 

 In its role as fact finder, the commission was entitled to 

give little probative weight to various medical records generated 

after Dinse's date of hire. Some of these records contained 

indications of a history of hypertension pre-dating Dinse's 

employment. However, the employer failed to produce any medical 

records to substantiate a diagnosis of hypertension prior to the 

date the employer hired Dinse. 

 III. 

 Under the circumstances of this case, "the employer must 

exclude work-related stress as a contributing factor to rebut the 

presumption [provided in Code § 65.2-402(B)]." Duffy v. 

Commonwealth of Virginia/Dept. of State Police, 22 Va. App. 245, 

251, 468 S.E.2d 702, 705 (1996). Unless we can say as a matter 

of law that the employer's evidence met its burden of proof, the 

commission's findings are binding and conclusive upon us. See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 

833, 835 (1970). 

 On October 27, 1994, Dr. Cummings opined that "[Dinse's] job 

is definitely stressful, however, and that probably is a factor 

in the degree of difficulty that has been experienced in 

controlling his blood pressure in the past." The employer 

presented no evidence excluding Dinse's work as a contributing 

cause of his hypertension. Thus, we cannot say as a matter of 
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law that the employer's evidence rebutted the statutory 

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

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

 Affirmed.