NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
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
UKROP’S SUPER MARKETS, INC. AND
UNDERWRITERS SAFETY AND CLAIMS, INC.
DECEMBER 16, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Christopher C. Booberg; Thorsen & Scher, L.L.P., on brief),
(M. Janet Palmer; Harrell & Chambliss, L.L.P., on brief),
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
[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
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
1994, that manifested itself with cognitive dysfunction
in 2000. We also agree that the claimant did not file a timely
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
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not designated for publication.