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the Virginia Court of Appeals.
VIRGINIA DEPARTMENT OF MOTOR VEHICLES
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
Record No. 1380-03-4
VIRGINIA DEPARTMENT OF MOTOR VEHICLES
SEPTEMBER 23, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Jeremy Flachs; D. Michael Mullori, Jr.; The
Law Offices of Jeremy Flachs, on brief), for
(Jerry W. Kilgore, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Edward M. Macon, Senior Assistant Attorney
General; Scott John Fitzgerald, Assistant
Attorney General; James Van Ingold, Assistant
Attorney General, on brief), for appellee.
Nasima Kandahari (claimant) contends the Workers’
Compensation Commission erred in finding she failed to prove
that her headaches, tremors, shaking, and
neurological/psychiatric condition were causally related to her
April 21, 2000 compensable injury by accident.
the record and the parties’ briefs, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the
commission’s decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant’s evidence
sustained her 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).
In ruling that claimant failed to prove that her alleged
head injury and tremors were causally related to her compensable
April 21, 2000 injury by accident, the commission found as
The claimant testified that during the
motor vehicle accident, she hit the right
side of her head on the passenger door.
After the accident, she was disoriented for
a few minutes and was shaking. The claimant
stated that she immediately reported pain in
her head and a bump on the side to her
supervisor after the accident.
Dr. [Bibhuti] Mishra recorded a similar
history of the accident. However, the
medical records of the two health care
providers who examined the claimant on the
date of the accident contain no history of
head trauma. The emergency room record
states, "no head trauma, LOC."
Dr. [Edward G.] Alexander’s note of April
21, 2000, indicates that the claimant was
wearing a seatbelt at the time of the crash
and was "not knocked unconscious."
We find the testimony of Dr. [Nathan]
Crone, the Johns Hopkins neurologist who
examined the claimant on referral from
Dr. Mishra, to be more persuasive.
Dr. Crone’s October 30, 2001 letter
emphasizes that he and Dr. Mishra agree that
the video EMG monitoring is necessary for an
accurate diagnosis of the claimant’s
neurological condition. Without a confirmed
diagnosis of seizure versus pseudoseizure,
Dr. Mishra’s opinion on causation lacked a
proper factual foundation. Without such
foundation and in light of the doubts
expressed by Drs. Alexander, [David] Cifu,
and Crone regarding causation, we cannot
find that the claimant proved to a
reasonable medical probability that her head
injury and tremors were causally related to
the April 21, 2000 accident. Moreover, we
find Dr. [C.M.] Prasad’s diagnosis of
post-traumatic stress disorder and
depressive episode to have no bearing on the
issue of whether the claimant’s head injury
and tremors are related to the accident.
Neither the April 21, 2000 emergency room record nor
Dr. Alexander’s April 21, 2000 note contained any history or
medical evidence indicating that claimant sustained a head
injury or head trauma at the time of the accident.
Drs. Alexander, Cifu, and Crone expressed doubts regarding
causation. In light of these factors, the commission, as fact
finder, was entitled to reject Dr. Mishra’s opinions.
evidence is not necessarily conclusive, but is subject to the
commission’s consideration and weighing." Hungerford
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215
(1991). Moreover, "[q]uestions raised by conflicting
opinions must be decided by the commission." Penley v.
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Because the medical evidence was subject to the
commission’s factual determination, we cannot find as a matter
of law that claimant’s evidence sustained her burden of proof.
Accordingly, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not
designated for publication.
We note that
the claim before the commission at the
hearing was for disability related to a head injury and tremors.