VIRGINIA: 03/24/2003
IN THE WORKERS? COMPENSATION COMMISSION

Affirmed by the Court of Appeals at
Record No. 0905-03-4 (August 19, 2003) (unpublished)

JOHN L. BISPO, Claimant
Opinion by DIAMOND
Commissioner
v. VWC File No. 198>- 70>- 94

METROPOLITAN WASHINGTON AIRPORT AUTH., Employer
HARTFORD CASUALTY INS. CO., Insurer

Michael A. Kernbach, Esquire
10680 Main Street, Suite 140
Fairfax, Virginia 22030-3811
for the claimant.

Benjamin J. Trichilo, Esquire
P.O. Box 22
Fairfax, Virginia 22030-0022
for the defendants.

REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

The employer requests Review of the deputy commissioner?s June 11, 2002, Opinion. The claimant sought benefits for an alleged occupational disease. The deputy commissioner awarded benefits, and the employer appeals. We AFFIRM.
The deputy commissioner thoroughly summarized the relevant evidence and we will not restate it here. Briefly, the claimant began experiencing heart problems, which ultimately resulted in his undergoing coronary artery bypass surgery, in November 1999. He worked as a firefighter for the employer since 1987, and thus the deputy commissioner analyzed his Claim in light of the presumption set forth in Code § 65.2-402.
Several physicians offered opinions concerning the cause of the claimant?s condition. Dr. Melanie Mattson, a cardiologist, treated the claimant in November 1999 for chest pain and performed heart catheterization on him on November 2, 1999. Dr. Daley Goff performed coronary artery bypass surgery on the claimant on November 3, 1999. After his surgery, the claimant was followed by Dr. Mattson. He returned to work, and on April 14, 2000, the claimant had an episode of tachycardia and was treated at an emergency room. Dr. Mattson released him to return back to work on April 18, 2000.
Dr. Warren Israel, a cardiologist, reviewed the claimant?s medical records at the employer?s request. On October 3, 2000, Dr. Israel noted that the claimant?s ?risk factors? for coronary artery disease included ?positive family history for heart disease, personal history of hypertension, elevated cholesterol levels, cigarette smoking, obesity and male gender.? Dr. Israel noted that work-related ?physical and emotional stress are not major risk factors for the development of atherosclerotic coronary artery disease or its sequelae.? Dr. Israel further noted that work-related physical and emotional stress were ?not even minor risk factors.? Dr. Israel explained that in his twenty-plus years of experience in evaluating firefighters he had ?never reviewed records of a single physician who recommended discontinuation of fire fighting activities on the hypothesis that they cause, worsen, or hasten atherosclerotic coronary artery involvement. This is because the preponderant opinion of the medical community is that work-related factors do not promote atherosclerosis.? Dr. Israel also testified by deposition and opined that the claimant?s ?job activities did not cause his coronary artery disease.? Dr. Israel agreed that the risk factors of family history of heart disease, hypertension, elevated cholesterol levels, smoking, obesity, and male gender were ?probable causes for the development of [the claimant?s] cardiovascular disease.?
Dr. Stuart Seides reviewed the claimant?s medical records at the employer?s request. On January 24, 2001, Dr. Seides opined that several ?causal factors? worked to ?form atherosclerotic plaques in the coronary arteries that result in vascular obstruction.? Dr. Seides identified ?hypertension, dyslipidemia, and tobacco abuse? as causal factors in the claimant?s heart condition. Dr. Seides also excluded the claimant?s employment as a firefighter as a causal factor, noting that his employment ?had no bearing whatsoever on the genesis or course of his disease, and his employment is entirely irrelevant and inconsequential as a potential causal factor.? Dr. Seides also testified by deposition and opined that the claimant?s job as a firefighter played no role ?whatsoever? in the development of his heart disease. Dr. Seides also testified that the ?presumption for fire-fighters that [a] diagnosis of heart disease arose out of, or was in the scope of, his employment? had ?no basis in scientific fact whatsoever.?
On June 12, 2001, Dr. Mattson noted her agreement with the assertion that the claimant?s occupational stress as a firefighter with the employer was a ?contributing risk factor in the development or acceleration of [his] heart disease.? Dr. Mattson agreed that although the exact cause of coronary artery disease was ?unknown,? certain risk factors were ?thought to be prevalent as contributing factors towards the development of coronary artery disease.? Dr. Mattson also testified by deposition and opined that the claimant?s ?risk factors? for heart disease did not cause his condition but were ?promoters.? Dr. Mattson concluded that she was unable to conclude what was ?the cause of [the claimant?s] cardiovascular disease.?
Dr. Richard Schwartz, a cardiologist, examined the claimant and reviewed his medical records at the claimant?s request. Dr. Schwartz opined on July 16, 2001, that the claimant suffered from coronary artery disease and that the risk factors ?present in the development of Mr. Bispo?s heart disease? included ?his history of cigarette smoking and occupational stress.? Dr. Schwartz explained that occupational stress ?is one of the underlying factors in the development of this disease process and can accelerate it? and concluded that it ?cannot be excluded as a risk factor or cause, with regard to the development of Mr. Bispo?s cardiac condition.?
Dr. Christopher Holland, an ?occupational medicine specialist,? reviewed the claimant?s medical records at the employer?s request. On July 23, 2001, Dr. Holland noted that the claimant?s ?risk factors? for heart disease included ?cigarette smoking, hypertension, elevated serum cholesterol, physical inactivity, and obesity,? as well as ?increasing age, male gender, and family history.? Dr. Holland opined that the claimant?s heart disease was ?caused? by ?the interaction of these risk factors? and also opined that the claimant?s heart disease was not ?caused by his employment.? Dr. Holland explained that the claimant?s ?employment [had not] played any significant role in the genesis of his disease.? Dr. Holland stated that ?stress? has been noted to have a ?relationship? with coronary artery disease but that it was ?a controversial risk factor and one that the preponderance of scientific evidence does not support.?
The deputy commissioner found that the employer did not prove that the claimant?s employment did not cause his heart disease. The employer argues that there was no evidence that the claimant?s employment ?caused? his heart disease but only evidence that it was a ?risk factor? for the development of heart disease. The employer also argues that the evidence ?shows clearly and without equivocation that the claimant?s cardiovascular disease is not caused by his employment and is attributable to a number of factors completely unrelated to the employment.?
Under Code § 65.2-402, heart disease or hypertension causing the death or ?any health condition or impairment? of a firefighter is presumed to be an occupational disease ?covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.? The Supreme Court has established that an employer is able to overcome the presumption as follows: ?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.? Bass v. City of Richmond Police Dep?t, 258 Va. 103, 114, 515 S.E.2d 557, 562-63 (1999). In Medlin v. County of Henrico Police, 34 Va. App. 396, 404, 542 S.E.2d 33, 37 (2001), the Court of Appeals held that evidence that ?only generally refutes the existence of a causal relationship between work-related stress and heart disease? served to attack the statutory presumption itself and was not probative on the issue of whether the employer overcame the Code § 65.2-402 presumption.
Here, the evidence was in conflict concerning the cause of the claimant?s heart disease. Dr. Israel initially opined that the claimant?s condition was ?fully explainable by his multiple agreed upon ?risk factors,?? which did not include his ?work activities as a fire fighter.? Dr. Israel explained that the prevailing medical opinion was that firefighting activities did not ?cause, worsen, or hasten atherosclerotic coronary artery involvement.? Dr. Israel testified by deposition, however, that the claimant?s heart disease was not ?caused? by his employment and agreed that his risk factors were ?probable causes? of his heart disease.
Similarly, Dr. Seides opined that the ?causal factors? of the claimant?s heart disease included smoking, high cholesterol, and hypertension and did not include his employment. Dr. Seides explained that the presumption that firefighting was causally related to heart disease had ?no basis in scientific fact whatsoever.? Dr. Holland also opined that the claimant?s heart disease was not caused by his work but by the ?interaction? of non-work related risk factors. Dr. Holland explained that the relationship between ?stress? and heart disease was not supported by a ?preponderance of scientific evidence.?
Dr. Mattson agreed that the claimant?s employment was a ?contributing risk factor? to the development of his heart disease. Dr. Mattson also testified that the cause of heart disease was ?unknown? but stated that his risk factors were ?promoters? of his condition. Dr. Schwartz opined that ?occupational stress? was a risk factor for heart disease and ?can accelerate? the disease process. Dr. Schwartz further opined that occupational stress could not be excluded as a ?risk factor or cause? of the claimant?s heart disease.
We agree with the deputy commissioner that the employer did not overcome the Code § 65.2-402 presumption by a ?preponderance of competent evidence.? We are persuaded that the opinions of Drs. Israel, Seides, and Holland that the claimant?s heart disease was not caused by his work were primarily based on the absence of scientific evidence, in their opinion, that established a link, in general, between heart disease and a person?s work. Dr. Israel noted that such a conclusion was not consistent with ?the preponderant opinion of the medical community? and Dr. Holland noted that it was not supported by a ?preponderance of scientific evidence.? Dr. Seides similarly noted that such a conclusion had ?no basis in scientific fact whatsoever.?
We are more persuaded by Dr. Mattson?s opinion that the evidence did not show that the claimant?s employment did not cause his heart disease. This opinion was corroborated by Dr. Schwartz?s opinion. Dr. Mattson pointed to certain ?risk factors? that could be seen as ?promoters? of heart disease, but denied being able to describe a ?cause-and-effect? relationship between the risk factors and heart disease. Dr. Mattson testified as follows:
I think there are a host of things that cause coronary disease, and no one has accurately identified the exact cause as to why Person A would develop a certain amount of coronary disease and Person B would not develop coronary disease with all of the same milieu - - you know, the same cholesterol, the same sugar, the same blood pressure. There are a lot of unidentifiable causes. I think risk factors make the disease more likely from a statistical standpoint.

In the claimant?s case, Dr. Mattson included the claimant?s employment as one of the ?risk factors that make the disease more likely.? In conclusion, after weighing the evidence concerning the causes of the claimant?s heart disease, we agree with the deputy commissioner that the employer did not present a preponderance of competent medical evidence showing that the claimant?s heart disease was not caused by his employment.
For these reasons, the June 11, 2002, Opinion is AFFIRMED. Interest on the Award is payable pursuant to Code § 65.2-707.
The attorney?s fee awarded to counsel for the claimant is increased to a total fee of $1,600.00, to be paid directly to counsel from accrued compensation.
This matter is removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.
cc: John L. Bispo
98 Jessica Place
Toms Brook, Virginia 22660
(Copy sent by Certified Mail)

Hartford Casualty Ins. Co.
Workers? Compensation Claim Center
P.O. Box 1097
Hunt Valley, Maryland 21030
(Copy sent by Certified Mail)
We correct a typographical error in the Award to provide that among the benefits awarded is the period April 14 through April 18, 2000, as opposed to April 14 through April 16, 2000. The finding on this issue contained in the deputy commissioner?s opinion noted the correct dates, as corroborated by the medical evidence.