                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Russell, Chafin and Senior Judge Clements
              Argued at Richmond, Virginia
UNPUBLISHED




              TED WILLIAMS
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 0120-18-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                                OCTOBER 2, 2018
              LOWE’S HOME CENTERS, INC./
               LOWE’S HOME CENTERS, LLC


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               William C. Carr, Jr. (Jeremiah L. White; Geoff McDonald &
                               Associates, P.C., on brief), for appellant.

                               Ciara Wren Malone (Franklin & Prokopik, P.C., on brief), for
                               appellee.


                     Ted Williams (claimant) challenges the ruling of the Workers’ Compensation

              Commission that the evidence in the record was not sufficient to prove that the need for the

              vagus nerve stimulation operation performed on claimant in 2017 was causally related to his

              2013 compensable injury by accident. We affirm the Commission’s ruling.

                     Under well-established principles, this Court construes the evidence in the record, and all

              reasonable inferences, in the light most favorable to the employer, as it prevailed below. See

              Stillwell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006).

              “Decisions of the commission as to questions of fact, if supported by credible evidence, are

              conclusive and binding upon this Court.” VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572

              S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147,




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
152 (1997)). Questions regarding “the causation, nature, and extent of disability” are issues of

fact. United Airlines, Inc. v. Hayes, 58 Va. App. 220, 237, 708 S.E.2d 418, 426 (2011).

       The evidence in this case established that claimant suffered from epilepsy as a child and

had a temporal lobectomy in 1994 when he was twenty-two years old. Claimant had one seizure

in 2009. In March 2013, while working at Lowe’s, claimant was injured when a cart fell on his

head at the site of his lobectomy. Claimant then began to experience auras, accompanied by a

flushing sensation in his face and a ringing in his ears, but he did not have convulsions or lose

consciousness. Claimant was treated at the Virginia Commonwealth University Medical Center

Department of Neurology (VCU). The Commission awarded claimant various periods of

temporary partial disability benefits and reasonable, necessary, and causally related medical

treatment for his compensable head injury beginning March 16, 2013.

       During an evaluation at VCU on February 2, 2015, claimant reported that he was having

spells of “sudden crying for no reason,” which had “disrupted his daily activities.” On March

25, 2015, a doctor at VCU noted that claimant was experiencing crying spells almost daily and

that the spells had an “unclear etiology,” but appeared “susp[i]cious for seizure.” On May 13,

2015, another doctor at VCU recommended that claimant seek a second opinion because VCU

was unable to determine the cause of the crying spells.

       Claimant was evaluated at the Cleveland Clinic Hospital in July 2015. The medical notes

reflect that after a head injury, claimant had experienced “recurrence of seizures in the 1st year –

mostly ‘auras’” and “after the first year started to have his crying seizures.”1 Claimant was

diagnosed with focal epilepsy. On May 5, 2017, a neurologist at the Cleveland Clinic opined



       1
         Claimant states that the crying spells began a month after his 2013 head injury, but two
doctors who examined claimant in 2013 did not include any information about these spells in
their reports. The doctor who evaluated claimant on May 5, 2017, indicated in his report that the
crying spells began six months after claimant’s head injury.
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that the crying spells were epileptic, but their relation to claimant’s 2013 head injury was “not

clear . . . at all.” A second doctor agreed that the crying episodes were “highly suspicious of

being epileptic in nature.” Claimant underwent surgery on June 15, 2017, to implant a vagus

nerve stimulator for his “intractable epilepsy.”

       Claimant filed a claim for benefits on May 31, 2017, requesting payment and

authorization of a vagus nerve stimulation with subsequent follow-up treatment as recommended

by the Cleveland Clinic. Lowe’s responded that there were no medical reports causally relating

the requested treatment to the work accident or showing that the treatment was necessary and

reasonably related to the accident. A deputy commissioner conducted an on-the-record hearing

on August 22, 2017, and denied the claim. Claimant appealed to the full commission, which

affirmed the deputy’s decision. The Commission found that claimant had not proved that the

medical treatment for which he sought payment was causally related to his work injury.

Claimant then appealed to this Court.

       Generally, a “causal connection is established when it is shown that an employee has

received a compensable injury which materially aggravates or accelerates a pre-existing latent

disease.” Blue Ridge Mkt. of Va. v. Patton, 39 Va. App. 592, 598, 575 S.E.2d 574, 577 (2003)

(quoting Justice v. Panther Coal Co., 173 Va. 1, 6-7, 2 S.E.2d 333, 336 (1939)). See Ohio Valley

Construction Co. v. Jackson, 230 Va. 56, 58-59, 334 S.E.2d 554, 555-56 (1985) (affirming

compensation award where medical evidence established that claimant’s dormant pre-existing

spinal stenosis was aggravated by his injury at work). Claimant argues that the Commission

erred in denying his claim because his crying spells began after he hit his head at work and thus

are causally related. However, the medical evidence presented to the Commission did not show

the requisite connection. Claimant experienced auras soon after he hit his head at work, but the

crying spells began later. Claimant’s doctors at VCU noted that the crying episodes were

                                                   -3-
“susp[i]cious for seizure,” but their examinations “thus far ha[d] not revealed an underlying

objective abnormality associated with these spells and the[re]fore the exact etiology of these

remain[ed] elusive.” Similarly, claimant’s doctors at the Cleveland Clinic determined that the

crying spells were “highly suspicious of being epileptic in nature,” but their relation to

claimant’s traumatic head injury was “not clear . . . at all.” Accordingly, the record supports the

Commission’s ruling that claimant did not meet his burden to prove that the need for surgery and

ongoing treatment at the Cleveland Clinic was causally related to his 2013 work injury.

       Claimant further contends that he should not be denied further treatment simply because

his doctors could not determine a causal connection between his crying spells and his work

injury. However, it was claimant’s burden to provide evidence that established a connection.

See Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). Further, when

medical issues are complex, as in this case, causation must be determined by a medical expert.

See Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792, 796, 537 S.E.2d 19, 21 (2000). There are

statutory exceptions that relieve claimants of the burden of proving causation, but none apply

here. See Code §§ 65.2-105 (presumption that injury arose out of and in the course of

employment for employees who are physically or mentally unable to testify or have died at

work); 65.2-402 (firefighters or hazardous materials officers developing respiratory diseases,

hypertension or heart disease, or certain cancers); 65.2-402.1 (death or disability from infections

disease); 65.2-504 (coal worker’s pneumoconiosis); 65.2-513 (coal worker’s death from

occupational lung disease). Adopting claimant’s argument would create a new presumption,

which is the “prerogative of the legislative branch of government,” not this Court. Pinkerton’s,

Inc. v. Helmes, 242 Va. 378, 381, 410 S.E.2d 646, 648 (1991).

       For these reasons, we affirm the Commission’s denial of the claim for benefits.

                                                                                             Affirmed.

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