COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARK S. ALLEN 

 MEMORANDUM OPINION*

v. Record No. 0897-97-1 PER CURIAM 

 AUGUST 26, 1997 

CITY OF NORFOLK POLICE DEPARTMENT AND 

 CITY OF NORFOLK, TRIGON 

 ADMINISTRATORS, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Karen M. Rye, on brief), for appellant. 

 (Philip R. Trapani, City Attorney; André A. 

Foreman, Deputy City Attorney, on brief), for 

appellees. 

 Mark S. Allen (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that he was 

not entitled to the benefit of 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. 

 Code § 65.2-402(B) provides that "hypertension or heart 

disease . . . resulting in total or partial disability of [a city 

police officer] . . . 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." This presumption applies 

 

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

designated for publication. 
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only if 

 persons entitled to invoke [it] have . . . 

undergone preemployment physical examinations 

that (i) were conducted prior to the making 

of any claims under this title that rely on 

[this] presumption[ ], (ii) were performed by 

physicians whose qualifications are as 

prescribed by the [employer], (iii) included 

such appropriate laboratory and other 

diagnostic studies as the [employer] may have 

prescribed, and (iv) found such persons free 

of . . . hypertension . . . or heart disease 

at the time of such examinations. 

Code § 65.2-402(D). 

 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). 

 So viewed, the evidence established that in 1978, claimant 

underwent a preemployment physical examination before beginning 

employment with the City of Norfolk Police Department ("the 

police department"). Dr. T. E. Smith of the Norfolk Public 

Health Department performed the examination. On November 28 and 

30, and December 1, 1978, claimant's blood pressure was measured 

in sitting, standing, and lying positions. On December 15, 1978, 

Dr. H. S. Wise noted that in all positions claimant's blood 

pressure was "persistently hypertensive." Dr. Wise referred 

claimant to a cardiologist. Dr. Wise concluded that based upon 

the preemployment examination, claimant had "evidence of 

persistent diastolic hypertension, ranging from moderate to 

slight, and occasionally [had] systolic hypertension of a mild to 

moderate degree . . . ." 
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 On February 12, 1996, claimant suffered a silent inferior 

myocardial infarction and a left ventricle aneurysm. Following 

claimant's heart attack, Dr. Thomas Klevan, claimant's 

cardiologist, reported that claimant had a history of 

hypertension. In responding to an August 26, 1996 letter from 

claimant's counsel, Dr. Klevan opined that claimant had 

substantial exposure outside of his employment to risk factors, 

including hypertension, elevated cholesterol, and a family 

history of heart disease. These factors contributed to the 

development of claimant's heart disease. Dr. Klevan could not 

eliminate any of these risk factors from being a primary cause of 

claimant's heart attack. 

 In denying claimant's application, the commission found that 

the presumption did not apply because the medical records 

revealed that claimant suffered from hypertension prior to his 

employment by the police department and that claimant's 

hypertension contributed to the development of his heart disease, 

which ultimately resulted in his heart attack on February 12, 

1996. Unless we can say as a matter of law that claimant's 

evidence proved that he was free of hypertension prior to his 

employment by the police department, 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). 

 The results of the preemployment examination performed by 

Dr. Smith, a qualified physician, and the conclusions drawn from 
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that examination by Dr. Wise, support the commission's finding 

that claimant was not free of hypertension prior to his 

employment by the police department. In addition, Dr. Klevan's 

opinion established that claimant's hypertension contributed to 

the development of his heart disease. Accordingly, we cannot say 

as a matter of law that claimant met his burden of proving he was 

entitled to the benefit of the presumption contained in Code 

§ 65.2-402(B). 

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

 Affirmed.