COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
KWANDWO ADU-GYAMFI
MEMORANDUM OPINION*
v. Record No. 0382-01-4 PER CURIAM
JUNE 26, 2001
AUTOSTRADE INTERNATIONAL and
PACIFIC INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John E. Carter, on brief), for appellant.
(Robert C. Baker; Mell, Brownell & Baker, on
brief), for appellees.
Kwandwo Adu-Gyamfi (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
his cervical condition and surgery were causally related to his
February 11, 1998 compensable injury by accident. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See 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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
So viewed, the evidence proved that claimant sustained
compensable injuries to his teeth and eye when he slipped and
fell while working for employer as a tollbooth operator. Since
1997, Dr. Sarah Fletcher had treated claimant for neck and left
arm pain and numbness/tingling. A January 28, 1998 cervical
spine MRI showed severe spondylosis with severe spinal stenosis
at C6-7. As a result, Dr. Fletcher referred claimant to Dr.
James W. Melisi, an orthopedic surgeon.
On February 11, 1998, several hours before the compensable
accident, Dr. Melisi examined claimant, who gave a history of
neck and left arm pain and numbness of a three-month duration.
After this examination and reviewing the MRI, Dr. Melisi
recommended that claimant undergo a two-level anterior cervical
disketomy at C5-6 and C6-7 with bone graft fusion. Dr. Melisi
noted that claimant "agreed to proceed with surgery. We will go
ahead and schedule him for surgery at his convenience."
Claimant testified that he agreed to undergo the surgery, but
wanted to postpone it until after a scheduled trip to Ghana.
Dr. Melisi agreed to schedule the surgery around the trip.
Several hours after seeing Dr. Melisi on February 11, 1998,
claimant slipped and fell at work. Claimant testified that the
fall rendered him unconscious and paralyzed for four to five
hours. Claimant was transported to the emergency room. The
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emergency room report reflects that claimant was conscious and
that he denied losing consciousness. It also reflects that
claimant stated he was unable to move for about twenty minutes
after the accident. An x-ray report showed degenerative
spondylosis with disk space narrowing at C4-5, C5-6, with
osteophytes and bilateral neural foraminal encroachment.
On February 20, 1998, Dr. Melisi performed the surgery he
had proposed to claimant on February 11, 1998 before the
accident, an anterior cervical diskectomy at C5-6 and C6-7 with
bone fusion graft. The surgery relieved claimant's severe pain
and left arm numbness. Claimant continued to treat with Dr.
Melisi for the next three months. On April 22, 1998, Dr. Melisi
noted that he scheduled claimant for three weeks of physical
therapy "and otherwise discharged him from the office."
On May 25, 1999, Dr. John P. McConnell, an orthopedic
surgeon, examined claimant and reviewed the medical records,
except the x-rays and MRI scans. Dr. McConnell noted claimant's
pre-existing significant cervical spondylosis, but concluded
that the fall "clearly represents an aggravation of [his
pre-existing] condition." Dr. McConnell opined that claimant
could not return to his pre-injury employment at that time.
On October 21, 1999, Dr. Joseph Linehan, an orthopedic
surgeon, performed an independent medical examination of
claimant. Dr. Linehan noted as follows:
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It is apparent from the records provided,
the history and physical examination today
that Mr. Adu-Gyamfi had cervical spondylosis
with cervical disc disease and a cervical
radiculopathy for which surgery had been
recommended. When he slipped and fell on
2/11/98 after visiting his neurosurgeon, his
symptoms were worse and surgery was moved up
and performed earlier than had originally
been planned. However, in my opinion, the
surgery performed was not affected by the
injury of 2/11/98 nor has the outcome of the
surgery in any way, shape or form been
altered by that incident.
On December 9, 1999, Dr. Linehan wrote as follows:
I have today reviewed the MRI scan of Mr.
Adu-Gyamfi's cervical spine, which was
performed on 1/29/98, 13 days before his
slip and fall injury of 2/11/98. The MRI
scan shows a herniated cervical disc at C5-6
and C6-7. This in no way changes my opinion
in my report of 10/21/99. I reiterate the
fact that the man had cervical spondylosis,
cervical disc disease and a cervical
radiculopathy which needed surgery well
documented before the slip and fall incident
of 2/11/98. The incident of 2/11/98 in no
way changed the necessity for his surgery
nor did it change the surgery he underwent,
nor did it alter the outcome from the
surgery performed.
On June 15, 1998 and January 8, 1999, Dr. Bernard Rawlins,
an orthopedic surgeon, treated claimant. In his October 29,
1999 deposition, Dr. Rawlins opined that the February 11, 1998
fall "exasperated [claimant's] neck symptoms to the point of
becoming emergent requiring his neurosurgeon to perform surgery
sooner rather than later . . . ." On cross-examination, Dr.
Rawlins admitted that he had not reviewed the complete medical
records, x-rays, or MRI scans. Dr. Rawlins testified that
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claimant told him he was rendered unconscious due to the fall,
but the emergency room report indicates that claimant denied
loss of consciousness. Dr. Rawlins based his opinions on the
increase in claimant's symptoms and his report that he was
paralyzed for a brief period of time.
In ruling that claimant's cervical condition and surgery
were not caused by the February 11, 1998 injury by accident, the
commission made the following findings:
While it is clear that the February 11,
1998, fall caused an increase in the
claimant's symptoms, there is no evidence
that the claimant suffered a sudden
mechanical change in his body as a result of
the fall. X-rays and MRI scans taken both
before and after the injury are essentially
the same. The only symptom that the
claimant claims to have experienced after
the fall that he had not had prior to the
fall—temporary paralysis—was fleeting and
fully resolved before the claimant arrived
at the hospital. . . . While the claimant's
symptoms caused his surgery to by [sic]
scheduled sooner than originally planned,
the February 20, 1998, surgery was exactly
the same surgery Dr. Melisi recommended a
few hours before the work-related injury.
The commission's findings are amply supported by the
record. Moreover, as fact finder, the commission was entitled
to reject the opinions of Drs. McConnell and Rawlins, finding
that Dr. McConnell offered no explanation as to how or why he
concluded that the February 1998 fall aggravated claimant's
pre-existing problems and Dr. Rawlins failed to identify any
physical change in claimant's condition after the accident, only
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a subjective increase in symptomatology. On the other hand, the
commission was entitled to accept Dr. Linehan's opinions, which
were supported by objective data. "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).
Furthermore, "[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).
Based upon the commission's factual findings and Dr.
Linehan's opinions, we cannot find as a matter of law that
claimant's evidence proved that his pre-existing cervical
condition was aggravated or exacerbated by the February 11, 1998
compensable injury by accident, resulting in his surgery and
subsequent disability.
For these reasons, we affirm the commission's decision.
Affirmed.
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