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SHELAR v. UKROP?S SUPER MARKETS, INC., et al.




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SHELAR

v.

UKROP’S SUPER MARKETS, INC., et al.


COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

Record No. 2303-03-2

JACK W. SHELAR

v.

UKROP’S SUPER MARKETS, INC. AND

UNDERWRITERS SAFETY AND CLAIMS, INC.

 

MEMORANDUM OPINION[1]
PER CURIAM

DECEMBER 16, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Christopher C. Booberg; Thorsen & Scher, L.L.P., on brief),
for

appellant.

(M. Janet Palmer; Harrell & Chambliss, L.L.P., on brief),
for

appellees.

Jack W. Shelar (claimant) contends the Workers’ Compensation
Commission erred in

denying his June 12, 2002 change-in-condition application on the
ground that it was not timely

filed. Claimant argues that the commission erred in finding that
he failed to prove that (1) his

original Claim for Benefits arising out of his compensable
December 4, 1994 injury by accident

included a claim for a brain injury; (2) Ukrop’s Super
Markets, Inc. (employer) was on notice of

a possible brain injury; (3) his current brain injury symptoms
were causally related to his

compensable December 7, 1994 injury by accident; and (4) there
was evidence that he

complained of or received treatment for symptoms other than
headache pain before July 25,

2000. 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 his 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 denying claimant’s application, the commission found as
follows:

[T]he claimant sought to hold the employer responsible for

neurological treatment for cognitive difficulties. We agree with

the deputy commissioner that the claimant did not prove that his

cognitive difficulties, for which he did not receive treatment
until

more than five years after the accident, were the result of the

accident. Although Dr. [Gregory] O’Shanick opined on May 13,

2001, that the claimant’s symptoms were caused by a mild

traumatic brain injury suffered on December 7, 1994, he did not

provide any explanation for the delayed onset of symptoms. Thus,

we agree that a preponderance of the evidence did not show that

the claimant suffered from a traumatic brain injury on December
7,

1994, that manifested itself with cognitive dysfunction
beginning

in 2000. We also agree that the claimant did not file a timely
claim

for benefits for a traumatic brain injury resulting in cognitive

dysfunction. The first treatment for these symptoms occurred in

2000, and thus, according to Shawley [v. Shea-Ball Constr. Co.,

216 Va. 442, 219 S.E.2d 849 (1975),] his Claim was not timely.

We need not reach the issue of whether claimant filed a timely
claim for a brain injury.

Even assuming, without deciding, that he did so, we cannot find
as a matter of law that his

evidence sustained his burden of proving that his brain
injury/symptoms were causally related to

his December 7, 1994 injury by accident.

"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). The commission weighed the medical
evidence, and determined

that Dr. O’Shanick’s opinion, the only medical opinion in
the record relating claimant’s

symptoms to a mild traumatic brain injury sustained on December
7, 1994, was not sufficient to

sustain claimant’s burden of proof by a preponderance of the
evidence. In light of the almost

five-year gap between claimant’s last post-accident medical
treatment on November 8, 1995 and

his medical treatment beginning on July 26, 2000; the lack of
any explanation from claimant or

Dr. O’Shanick for that time gap; and Dr. Edward Peck’s
opinion that there was no causal

connection between claimant’s December 7, 1994 work-related
accident and his reported

cognitive complaints, the commission, as fact finder, was
entitled to give no probative weight to

Dr. O’Shanick’s opinion. Absent Dr. O’Shanick’s opinion,
there is no evidence in the record to

support a causal connection between claimant’s November 7,
1994 compensable injury by

accident and his brain injury/symptoms.

Because the medical evidence was subject to its factual
determination, we cannot find as

a matter of law that claimant sustained his burden of proving a
causal connection between his

November 7, 1994 compensable injury by accident and his brain
injury symptoms.

For these reasons, we affirm the commission’s decision.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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