Heart Lung Presumption

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HEART-LUNG PRESUMPTION

Without a statutory exception, in heart attack cases, the claimant must show an injury by accident and an identifiable incident at a reasonably definite time. The claimant must prove that particular work activity caused or contributed to cause the heart attack. If the heart attack was a natural coincidence of preexisting heart disease or physical and emotional stress over a period of weeks, the heart attack is not compensable. D.W. Mallory & Co. v. Phillips, 219 Va. 845, 252 S.E.2d 319 (1979); Woody v. Mark Winkler Mgt., Inc., 1 Va. App. 147, 336 S.E.2d 518 (1985).

Statutory Provision. §65.2-402. Presumption as to death or disability from respiratory disease, hypertension or heart disease.

A. Respiratory diseases that cause (i) the death of volunteer or salaried firefighters or Department of Emergency Services hazardous materials officers, or (ii) any health condition or impairment of such firefighters or Department of Emergency Services hazardous materials officers resulting in total or partial disability 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. For purposes of this section, the term "firefighter" shall include persons who are employed by or contract with private employers primarily to perform firefighting services.

B. Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of (i) salaried or volunteer firefighters, (ii) members of the State Police Officers' Retirement System, (iii) members of county, city or town police departments, (iv) sheriffs and deputy sheriffs, (v) Department of Emergency Services hazardous materials officers, (vi) city sergeants or deputy city sergeants of the City of Richmond, and (vii) game wardens who are full-time sworn members of the enforcement division of the Department of Game and Inland Fisheries 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.

C. Leukemia or pancreatic, prostate, rectal, or throat cancer that is caused by a documented contact with a toxic substance that a volunteer or salaried firefighter or Department of Emergency Services hazardous materials officer having completed twelve years of continuous service has encountered in the line of duty and that causes (i) the death of such person or (ii) any health condition or impairment of such person resulting in total or partial disability shall be presumed to be an occupational disease, suffered in the line of duty, that is covered by this title, unless such presumption is overcome by a preponderance of competent evidence to the contrary. For the purposes of this section, a "toxic substance" is one which is a known or suspected carcinogen, as defined by the International Agency for Research on Cancer, and which causes, or is suspected to cause, leukemia or pancreatic, prostate, rectal or throat cancer.

D. The presumptions described in subsections A, B, and C of this section shall only apply if persons entitled to invoke them have, if requested by the private employer, appointing authority or governing body employing them, undergone preemployment physical examinations that (i) were conducted prior to the making of any claims under this title that rely on such presumptions, (ii) were performed by physicians whose qualifications are as prescribed by the private employer, appointing authority or governing body employing such persons, (iii) included such appropriate laboratory and other diagnostic studies as the private employer, appointing authorities or governing bodies may have prescribed, and (iv) found such persons free of respiratory diseases, hypertension, cancer or heart disease at the time of such examinations.

E. Persons making claims under this title who rely on such presumptions shall, upon the request of private employers, appointing authorities or governing bodies employing such persons, submit to physical examinations (i) conducted by physicians selected by such employers, authorities, bodies or their representatives and (ii) consisting of such tests and studies as may reasonably be required by such physicians. However, a qualified physician, selected and compensated by the claimant, may, at the election of such claimant, be present at such examination.

F. Whenever a claim for death benefits is made under this title and the presumptions of this section are invoked, any person entitled to make such claim shall, upon the request of the appropriate private employer, appointing authority or governing body that had employed the deceased, submit the body of the deceased to a postmortem examination as may be directed by the Commission. A qualified physician, selected and compensated by the person entitled to make the claim, may, at the election of such claimant, be present at such postmortem examination.

G. Volunteer lifesaving and rescue squad members, volunteer law-enforcement chaplains, auxiliary and reserve deputy sheriffs, and auxiliary and reserve police are not included within the coverage of this section.

Nature of the Heart-Lung Presumption--Burden of Proof is Shifted to Employer.

In Claude A. Bass, Jr. v. City of Richmond Police Department, Record No. 980612; John B. Patton, Jr. v. Loudoun County Board of Supervisors, Record No. 980861; City of Hopewell, et al. v. Michael W. Tirpak, Record No. 982126 (June 11, 1999), WP Version, Bass v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557 (1999), the Supreme Court clarified what is needed to overcome the statutory presumption. Under the statutory language, the employer may overcome the presumption by producing "a preponderance of competent evidence to the contrary." Code Sec. 65.2-402(B). 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. See Fairfax County Fire & Rescue Servs. v. Newman, 222 Va. 535, 539, 281 S.E.2d 897, 899-900 (1981); Page v. City of Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978). 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. Id. In Code Sec. 65.2-402(B), the legislature included "[h]ypertension or heart disease" among those diseases that "shall be presumed to be occupational diseases . . . unless such presumption is overcome by a preponderance of competent evidence to the contrary." In Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978), the Supreme Court explained that the purpose of the statutory presumption is to establish by law, in the absence of evidence, a causal connection between certain occupations and death or disability resulting from specified diseases. The Court held that a claimant firefighter was entitled to compensation benefits because his employer had failed to overcome the statutory presumption by showing 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. Id. at 847- 48, 241 S.E.2d at 777. The Supreme Court again applied this two-part test in Fairfax County Fire & Rescue Servs. v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981). There, a firefighter who developed sarcoidosis, a disease affecting the lungs, relied on the statutory presumption of occupational disease provided by former Code Sec. 65.1-47.1. The employer produced medical testimony that the firefighter's employment did not cause his disease, but the employer failed to present any medical evidence of a non-work-related cause of the disabling disease. Since the employer failed to prove one of the two elements required to overcome the statutory presumption, the Court upheld the Commission's award of benefits. Id. at 539, 281 S.E.2d at 900; see also Berry v. County of Henrico, 219 Va. 259, 265, 247 S.E.2d 389, 392 (1978). In Doss v. Fairfax County Fire & Rescue Dep't., 229 Va. 440, 331 S.E.2d 795 (1985), the Supreme Court applied the two-part test to a firefighter's claim for benefits for a respiratory disease. The claimant relied on the statutory presumption and presented no evidence to counter the employer's medical evidence that 1) the claimant's job did not cause his respiratory disability, and 2) the claimant's condition was "more than likely a hereditary phenomenon." Id. at 441-42, 331 S.E.2d at 795-96. The Court held that the Commission did not err in ruling that the employer presented sufficient evidence to overcome the statutory presumption, and that the evidence concerning a "hereditary" cause was sufficient to meet the Page requirement that the employer produce evidence of a non-work-related cause of the disease. Id. at 442-43, 331 S.E.2d at 796-97. In Augusta County Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), the employer acknowledged the applicability of the two-part test by conceding that, to overcome the statutory presumption of Code Sec. 65.2-402(B), the employer was required "to establish a non-work-related cause for [the claimant's] heart condition and that job stress was not the cause." 254 Va. at 526, 492 S.E.2d at 633. The claimant contended, however, that the presumption also imposed on the employer the burden of "producing a preponderance of evidence excluding the possibility that his heart disease was work related." Id. In rejecting the claimant's contention, the Supreme Court quoted from Doss, stating that, to overcome the statutory presumption, the employer merely "must adduce competent medical evidence of a non-work-related cause of the disabling disease." Overbey, 254 Va. at 527, 492 S.E.2d at 634 (quoting Doss, 229 Va. at 442, 331 S.E.2d at 796). This quotation was made in the context of the Court's holding that, to overcome the statutory presumption of Code Sec. 65.2-402(B), 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. Id. at 527, 492 S.E.2d at 634.

To rebut the statutory 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, 515 S.E.2d 557 (1999) (citing Fairfax County Fire & Rescue Servs. v. Newman, 222 Va. 535, 539, 281 S.E.2d 897, 899-900 (1981); Page v. City of Richmond, 218 Va. 844, 847-48, 241 S.E.2d 775, 777 (1978)). 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. Id. (implicitly holding such evidence sufficient by remanding case with those facts to commission for application of the proper legal standard); Augusta County Sheriff's Dep't. v. Overbey, 254 Va. 522, 527, 492 S.E.2d 631, 634 (1997) (noting that a claimant is entitled to benefits under Code Sec. 65.2-402(B) when the evidence shows that at least one cause of the claimant's heart disease was "related to the employment"). Claimant's treating physician opined that job stress contributed to claimant's coronary artery disease. Accordingly, the commission did not err in holding that employer failed to rebut the presumption of Code Sec. 65.2-402 that claimant's heart disease was an occupational disease. Tazewell County Sheriff's Office v. Owens, Record No. 0005-99-3 (June 29,1999). WP Version.

After working as a firefighter for about eight years, claimant was diagnosed with asymptomatic complete heart block. The doctors who examined him believed the cause of his condition was unknown or unclear. The Supreme Court recently held that "[t]o overcome the presumption [contained in Code Sec. 65.2-402(B)], the employer must show, by a preponderance of the evidence, both that (1) the [employee's] disease was not caused by his [or her] employment, and (2) there was a non-work-related cause of the disease." Bass v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557 (1999). WP Version. Thus, it follows that "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." Id. In this case there was no evidence of a non-work-related cause. The commission did not err in ruling that the record failed to establish by a preponderance of credible evidence a non-work-related cause of claimant's disease. City of Richmond Fire Department v. George J. Dean, Record No. 1731-98-2 (July 27, 1999) WP Version.

The commission did not err in finding that cardiac arrhythmia constituted a compensable occupational disease. Determining whether a condition constitutes an occupational disease is a mixed question of law and fact and is subject to judicial review. See A New Leaf, Inc. v. Webb, 257 Va. 190, 196, 511 S.E.2d 102, 104 (1999) (citations omitted). WP Version. In its decision, the commission was required to resolve conflicting medical opinions. The medical opinions differed on whether claimant's cardiac arrhythmia constituted an occupational disease. The record supports its finding that claimant's cardiac arrhythmia was a compensable disease. Code Sec. 65.2-402(B) provides: Hypertension or heart disease causing . . . any health condition or impairment resulting in total or partial disability of . . . deputy sheriffs . . . 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. In Bass v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557 ( 1999). WP Version, the Supreme Court held: "[t]o overcome the presumption, the employer must show, by a preponderance of the evidence, both that (1) the disease was not caused by his employment, and (2) there was a non-work-related cause of the disease." Id. at 114, 515 S.E.2d at 562-63 (citation omitted). In this case, the commission considered both parts of that two-part test. It noted that prior to Augusta County Sheriff's Dep't. v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), "the employer had to pass a two-pronged test to rebut the presumption. First, the evidence had to establish a probable non-work-related cause of the disease. . . . Secondly, the evidence had to exclude work-related factors as a possible contributing cause of the disease." The commission found that employer satisfied one prong of the test because it presented evidence that there were non-work-related causes of the disease, primarily claimant's consumption of nicotine, alcohol, and caffeine. However, to satisfy the second prong of the test, employer had to exclude claimant's work as a factor in his condition. This it failed to do. To the contrary, the commission found "the evidence is sufficient to prove [claimant's] work was a proximate cause of his cardiac arrhythmia.” The record supports the commission's finding. Claimant's use of nicotine, caffeine and alcohol contributed to the origination and continuation of his cardiac arrhythmia. When medical opinions conflict, the general rule is that when an attending physician is positive in his diagnosis of a disease, great weight will be given by the courts to this opinion. See McPeek v. P.W. & W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969). Based on the entire record, the commission properly concluded that claimant's cardiac arrhythmia was caused, at least in part, by the significant stress he experienced in the line of duty. Employer failed to rebut the statutory presumption by excluding work stress as a contributing factor. Henrico County Sheriff's Office v. Paul T. McQuay, Record No. 2241-98-2 (August 17, 1999). WP Version.

The commission, in its role as fact finder, found that employer's evidence failed to establish by a preponderance of the evidence a non-work-related cause of claimant's heart disease and that employer consequently failed to rebut the statutory presumption. We cannot conclude as a matter of law that the commission erred in its ruling. To rebut the presumption of Code Sec. 65.2-402(B), employer was required to produce affirmative evidence of a non-work-related cause of claimant's orthostatic hypotension. See Bass v. City of Richmond Police Dep't, 258 Va. 103, 115, 515 S.E.2d 557, 563 ( 1999). WP Version. Because employer's evidence did not prove by a preponderance of the evidence that claimant's family history or history of smoking caused him to develop orthostatic hypotension, the commission did not err by finding that employer failed to rebut the statutory presumption that claimant's condition is a compensable occupational disease. See City of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243, 245 (1992) ("In the absence of competent evidence to the contrary, the statutory presumption controls and the claimant prevails.").The Workers' Compensation Act provides for coverage of occupational diseases arising out of and in the course of employment. See Code Sec. 65.2-101; A New Leaf, Inc. v. Webb, 26 Va. App. 460, 465, 495 S.E.2d 510, 513 (1998), aff'd, 257 Va. 190, 511 S.E.2d 102 (1999). WP Version. Under Code Sec. 65.2-402(B), a heart disease incurred by a deputy sheriff is "presumed to be [an] occupational disease[], suffered in the line of duty, that [is] covered by [the Act] unless such presumption is overcome by a preponderance of competent evidence to the contrary." The Supreme Court of Virginia recently re-affirmed the principle that an employer may rebut the presumption of Code Sec. 65.2-402(B) by proving by a preponderance of the evidence that: 1) the claimant's disease was not caused by his or her employment, and 2) there was a non-work-related cause of the disease. See Bass v. City of Richmond Police Dep't., 258 Va. 103, 115, 515 S.E.2d 557, 563 (1999). WP Version. When the commission determines that an employer has failed to overcome the statutory presumption, the claimant is entitled to an award of benefits. See Code Secs. 65.2-400 to 407. Even had the medical records established a family history of heart disease, employer failed to prove by a preponderance of the evidence that this risk factor actually caused claimant's orthostatic hypotension. "[T]he showing of 'risk factors' alone does not rebut the statutory presumption and does not establish competent medical evidence of a non-work-related cause of the disabling disease." City of Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246 (1992).references do not constitute evidence that claimant's orthostatic hypotension was, in fact, of genetic or inherited origin, in whole or in part. See id. Cf. Augusta County Sheriff's Dep't v. Overbey, 254 Va. 522, 525, 527, 492 S.E.2d 631, 633, 634 (1997) (finding that employer established a non-work-related cause of claimant's heart disease based in part on the uncontradicted deposition testimony of the attending physician that several non-work-related risk factors "caused" the claimant's heart disease). Claimant also had a history of smoking as a risk factor. No evidence was admitted, however, concerning the actual effect of claimant's smoking on his cardiovascular health. No physician opined that smoking caused claimant's orthostatic hypotension. Although employer may have established that claimant's history of smoking was a risk factor for heart disease, employer failed to present sufficient medical evidence that claimant's smoking habits actually caused orthostatic hypotension. See Lillard, 15 Va. App. at 429, 424 S.E.2d at 246. City of Portsmouth Sheriff's Dept. v. Stephen Clark, Record No. 2667-98-1 (September 7, 1999). WP Version.

The Supreme Court reaffirmed the standard for an employer seeking to rebut a law enforcement officer's use of the causation presumption. "[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.'" Augusta County Sheriff's Dep't. v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997), (citing Doss v. Fairfax County Fire & Rescue Dep't, 229 Va. 440, 442, 331 S.E.2d 795, 796 (1985)). The Court announced that nothing in the statute or the several decisions of this Court dealing with rebuttal of this presumption suggests that the employer has the burden of excluding the "possibility" that job stress may have been a contributing factor to heart disease. Augusta County Sheriff's Dep't v. Overbey, 254 Va. 522, 492 S.E.2d 631 (1997) The purpose of the presumption provided by Code Sec. 65.2-401(B) is to establish a causal connection between, inter alia, disability from heart disease and the occupation of a state trooper. Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243, 244-45 (1992). The presumption of causation provided by Code Sec. 65.2-402(B) is "overcome by a preponderance of evidence to the contrary," and, "[i]n the absence of competent evidence to the contrary, the statutory presumption controls and the claimant prevails." Lillard, 15 Va. App. at 426, 424 S.E.2d at 245. The law is well settled that [i]n order to rebut the presumption, it is not sufficient that the employer merely adduce evidence that the heart disease was not caused by the employment; the employer must establish by competent medical evidence a non-work-related cause to rebut or overcome the statutory presumption that causation exists. Fairfax Co. Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033, 1036-37, 421 S.E.2d 668, 670-71 (1992) (citing Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777.

Code Sec. 65.2-402 provides that "heart disease . . . resulting in total or partial disability of [a police officer] . . . shall be presumed to be [an] occupational disease, suffered in the line of duty, . . . unless such presumption is overcome by a preponderance of competent evidence to the contrary." Thus, to rebut the presumption, an employer must establish by competent medical evidence a non-work-related cause of the employee's heart disease. City of Norfolk v. Lillard, 15 Va. App. 424, 430, 424 S.E.2d 243, 246-47 (1992). "[T]he showing of 'risk factors' alone does not rebut the statutory presumption and does not establish competent medical evidence of a non-work-related cause of the disabling disease." Lillard, 15 Va. App. at 429, 424 S.E.2d at 246. No medical evidence proved either that a non-work-related factor caused Coleman's heart attack or that work-related stress was not a contributing cause of his disability.

To recover compensation for an ordinary disease of life as an occupational disease, a claimant must establish "by clear and convincing evidence, to a reasonable medical certainty, that [his illness] arose out of and in the course of his employment." Code Sec. 65.2-401. However, the legislature "has accorded policemen who suffer from heart disease or hypertension preferential status." Department of State Police v. Talbert, 1 Va. App. 250,253, 337 S.E.2d 307, 308 (1985). Code Sec. 65.2-402 creates a rebuttable presumption that a causal connection exists between an individual's employment as a police officer and certain diseases. "A presumption is a rule of law that compels the fact finder to draw a certain conclusion . . . from a given set of facts." Martin v. Phillips, 235 Va. 523, 526, 369 S.E.2d 397, 399 (1988) (citing Simpson v. Simpson, 162 Va. 621, 641-42, 175 S.E. 320,329 (1934)). "The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption." Martin, 235 Va. at 526, 369 S.E.2d at 399. "[T]he effect of the presumption is to eliminate the need for a claimant to prove a causal connection between his disease and his employment." City of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243,244-45 (1992). "In the absence of competent evidence to the contrary, the statutory presumption controls, and the claimant prevails." Fairfax County Fire & Rescue Dep't v. Mitchell, 14 Va. App. 1033, 1035, 421 S.E.2d 668, 670 (1992). To trigger the presumption, claimant need only prove his occupation and his disability from heart disease or hypertension, the diseases identified in Code Sec. 65.2-402. Once claimant has established his prima facie case, "[t]he presumption shifts the burden of going forward with the evidence from the claimant to his employer." Id. Proof of claimant's disability from heart disease or hypertension depends upon medical evidence.

Fairfax County Fire and Rescue Services v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981), held that the causation presumptions now codified at Code Sec. 65.2-402 cast "the ultimate risk of nonpersuasion" upon the employer, 222 Va. at 541, 281 S.E.2d at 901. It is fundamental and well settled that the "risk of nonpersuasion" is a direct reference to the burden of persuasion. See Darden v. Murphy, 176 Va. 511, 518, 11 S.E.2d 579, 580 (1940) (stating that "the burden of proof in the sense of the risk of nonpersuasion" is distinguishable from "the burden of going forward with the evidence").

(See Supreme Court case above: City of Hopewell, et al. v. Michael W. Tirpak, Record No. 982126 ( June 11, 1999), WP Version, placing the burden on the employer to prove by a preponderance of the evidence that the claimant's disease was not caused by his employment, and there was a non-work-related cause of the disease.) The Court of Appeals had held that whether an employer has rebutted the causation presumption is determined by the commission in its role as fact finder after weighing the evidence offered by both parties on the issue of causation. because the causation presumption shifts both the burdens of production and persuasion to the employer, whether proof of a non-work-related cause is sufficient to rebut the presumption depends upon how the commission weighs the evidence presented by the parties. If the preponderance of the evidence produced by the parties indicates to the commission, the trier of fact, that the heart disease was caused by non-work-related factors and that there was no proximate causal connection between the disease and the employment, then the causation presumption is rebutted. A claimant who proves that the causation presumption applies to his or her claim is entitled to full benefits if there is affirmative evidence deemed persuasive by the commission that the employment was a contributing cause of the claimant's heart disease. Thus, if the preponderance of the evidence indicates to the commission that the claimant's heart disease had multiple causes, at least one of which is related to the employment, then the presumption that the heart disease was "suffered in the line of duty" is not rebutted. City of Hopewell v. Michael W. Tirpak, Record No. 1369-97-2 (July 28, 1998).

The purpose of the presumption provided by Code Sec. 65.2-401(B) is to establish a causal connection between, inter alia, disability from heart disease and the occupation of a state trooper. Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978); City of Norfolk v. Lillard, 15 Va. App. 424, 426, 424 S.E.2d 243, 244-45 (1992). The presumption of causation provided by Code Sec. 65.2-402(B) is "overcome by a preponderance of evidence to the contrary," and, "[i]n the absence of competent evidence to the contrary, the statutory presumption controls and the claimant prevails." Lillard, 15 Va. App. at 426, 424 S.E.2d at 245. The law is well settled that [i]n order to rebut the presumption, it is not sufficient that the employer merely adduce evidence that the heart disease was not caused by the employment; the employer must establish by competent medical evidence a non-work-related cause to rebut or overcome the statutory presumption that causation exists. Fairfax Co. Fire and Rescue Dep't v. Mitchell, 14 Va. App. 1033,1036-37, 421 S.E.2d 668, 670-71 (1992) (citing Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985)); see also Page, 218 Va. at 848, 241 S.E.2d at 777. The issue here is whether the employer must establish a non-work-related cause to the exclusion of work-related factors. In Mitchell, the Court of Appeals held that where the employer's "rebuttal evidence fail[s] to exclude a work-related factor as a cause of the heart disease, the finding of the commission that the employer failed to rebut the presumption in claimant's favor is conclusive and binding on appeal." Mitchell, 14 Va. App. at 1034, 421 S.E.2d at 669; see also Talbert, 1 Va. App. at 253, 337 S.E.2d at 308; County of Amherst v. Brockman, 224 Va. 391, 399,297 S.E.2d 805, 809-10 (1982) (commission's award affirmed if rebuttal evidence does not exclude stress as possible "contributing cause"). Here, employer presented significant evidence of non-work-related factors which may have contributed to the claimants' conditions, but it did not exclude the claimants' work as a contributing factor. In proving causation in a workers' compensation case where the evidence demonstrates two or more potential causative factors, one of two conclusions follows. Either, a combination of factors contributed to cause the disability; or, one of the factors caused the disability to the exclusion of the others. The "two causes rule" addresses those cases "where a disability has two causes: one related to the employment and one unrelated." Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28, 294 S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 803 (1981)); see also Shelton v. Ennis Business Forms, 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985). Under the two causes rule, "full benefits [are] allowed when it is shown that `the employment is a contributing factor.'" Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergman, 222 Va. at 32, 278 S.E.2d at 803); see also Shelton, 1 Va. App. at 55, 334 S.E.2d at 299. The "more probable than not rule," addresses those cases where only one of a number of possible factors caused the disability. See id. Under the more probable than not rule, for the disability to be compensable, it must be more probable than not that it was caused by the work-related factor. Id. That is, a preponderance of evidence must show that work was the cause of the disability. Id. As in Smith and Bergmann, the evidence in this case proved that a number of factors contributed to the development of claimants' conditions. Under the "two causes" rule, causation, and therefore compensability, is established when it is shown that work contributed to the disability. For this reason, in a case where the evidence demonstrates that multiple factors, including job stress, contributed to the development of a police officer's heart disease, the employer must exclude work-related stress as a contributing factor to rebut the presumption of causation. Here, both the deputy commissioner and the full commission found that employer's evidence failed to exclude job stress as a contributing factor. Cf. Doss v. Fairfax County Fire Dept., 229 Va. 440, 441-42, 331 S.E.2d 795, 795-96 (1985) (employer's evidence established a non-work-related cause to the exclusion of work-related factors); Cook v. City of Waynesboro, 225 Va. 23, 28-30, 300 S.E.2d 746, 748-49 (1983) (same). Finch Weston Duffy, et al. v. Commonwealth of Virginia/Department of State Police, Record No. 0945-95-4 (April 9, 1996).

Sec. 65.2-402(C) presumption requires proof of cause. After 30 years with the fire department, Claimant was diagnosed with prostate cancer, an ordinary disease of life of unknown etiology. Claimant's evidence, however, documented an exposure to cadmium, a substance identified as carcinogenic by the International Agency for Research on Cancer (IARC), as a suspected cause of prostate cancer. Code Sec. 65.2-402(C), provides, in pertinent part, that “prostate cancer, caused by a documented contact with a toxic substance that a . . . fire fighter . . . has encountered in the line of duty and that causes . . . any health condition or impairment[,] . . . shall be presumed to be an occupational disease, suffered in the line of duty, that is covered by this title, unless such presumption is overcome by a preponderance of competent evidence to the contrary. For the purposes of this section, a ‘toxic substance’ is one which is a known or suspected carcinogen, as defined by the International Agency for Research on Cancer [IARC], and which causes, or is suspected to cause, . . . prostate . . . cancer.” Code Sec. 65.2-402 (C) explicitly provides that the presumption of occupational disease applies to prostate cancer "that is caused by a documented contact with a toxic substance." Claimant was not entitled to the statutory presumption of occupational disease because he did not prove that exposure to the toxic substance cadmium "caused or contributed to cause, his prostate cancer." Newell E. Whitehead, Jr. v. City of Portsmouth FD, Record No. 2975-98-1 (July 27, 1999). WP Version.

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