Newport News Shipbuilding and Dry Dock v Emerson

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY MEMORANDUM OPINION*
v. 	Record No. 0497-98-1 	PER CURIAM
JULY 28, 1998
DENNIS D. EMERSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jonathan H. Walker; Mason & Mason, on
brief), for appellant.
(Richard B. Donaldson, Jr.; Kevin W.
Grierson; Jones, Blechman, Woltz & Kelly, on
brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (hereinafter
referred to as "employer") contends that the Workers'
Compensation Commission erred in finding that employer's evidence
failed to rebut the statutory presumption available to Dennis D.
Emerson under 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. 	See Rule 5A:27.
"Code § 65.2-402(B) creates a presumption that
[firefighters'] heart diseases are occupationally related,
'unless such presumption is overcome by a preponderance of
competent evidence to the contrary.'" 	Augusta County Sheriff's
Dept. v. Overbey, 254 Va. 522, 526, 492 S.E.2d 631, 633 (1997).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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"[T]he term 'firefighter' shall include persons who are employed
by . . . private employers primarily to perform firefighting
services." 	Code § 65.2-402(A).
"Code § 65.2-402(B) requires [employer] to establish a
non-work-related cause for [Emerson's] heart condition and that
job stress was not the cause." 	Overbey, 254 Va. at 526, 492
S.E.2d at 633. 	"[I]n order to overcome the statutory
presumption, the employer merely 'must adduce competent medical
evidence of a non-work-related cause of the disabling disease.'"
Id. at 527, 492 S.E.2d at 634 (quoting Doss v. Fairfax County
Fire & Rescue Dept., 229 Va. 440, 442, 331 S.E.2d 795, 796
(1985)).
In ruling that employer's evidence was insufficient to rebut
the statutory presumption, the commission found as follows:
[T]wo of three physicians, both treating
physicians, Dr. [Peter J.] Zullo and Dr.
[Paul] Micale, implicate [Emerson's]
work-related exposure to smoke and fumes as a
causative factor. 	Only Dr. [Warren] Israel,
who did not examine [Emerson], maintains that
[Emerson's] heart disease is explained by
other risk factors. 	Dr. Israel, while
articulating a thorough foundation for his
opinion that stress was not a factor, failed
to so thoroughly explain why [Emerson's]
occupational exposure to smoke and fumes did
not, in his opinion, contribute to
[Emerson's] disease. 	We therefore do not
find Dr. Israel's conclusory dismissal of
occupational exposure to smoke and fumes
persuasive. 	Based on that finding, and the
conflicting medical evidence, we conclude the
employer failed to establish, by a
preponderance of competent evidence, a
non-work-related cause of [Emerson's]
coronary artery disease.

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"Medical evidence is not necessarily conclusive, but is
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). 	As fact finder, the commission was
entitled to give greater weight to the opinions of the treating
physicians, Drs. Zullo and Micale, and to reject Dr. Israel's
opinion. 	Based upon its weighing of the medical evidence, the
commission was entitled to conclude that Dr. Israel's opinion did
not constitute competent evidence to rebut the statutory
presumption. 	"Questions raised by conflicting medical opinions
must be decided by the commission." 	Penley v. Island Creek Coal
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
In light of the opinions of Drs. Zullo and Micale, we cannot
say as a matter of law that employer's evidence rebutted the
statutory presumption provided under Code § 65.2-402(B).
For these reasons, we affirm the commission's decision.
Affirmed.