KANDAHARI v. BUTCHER




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revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


KANDAHARI

v.

VIRGINIA DEPARTMENT OF MOTOR VEHICLES


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

Record No. 1380-03-4

NASIMA KANDAHARI

v.

VIRGINIA DEPARTMENT OF MOTOR VEHICLES

 

MEMORANDUM OPINION[1]
PER CURIAM

SEPTEMBER 23, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Jeremy Flachs; D. Michael Mullori, Jr.; The

Law Offices of Jeremy Flachs, on brief), for

appellant.

(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.[2]
Upon reviewing

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

follows:

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.
"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). Moreover, "[q]uestions 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).

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.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

 

[2]We note that
the claim before the commission at the

hearing was for disability related to a head injury and tremors.

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