Fairfax County School Board v Sally Ann Presti

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
FAIRFAX COUNTY SCHOOL BOARD
MEMORANDUM OPINION* BY
v. 	Record No. 3010-98-4 	JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 19, 1999
SALLY ANN PRESTI
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on
briefs), for appellant.
Julie H. Heiden (Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
The Fairfax County School Board ("employer") appeals the
determination of the Workers' Compensation Commission that Sally
Ann Presti's ("claimant") generalized dystonia is causally
related to her industrial accident of October 23, 1990. 	Employer
contends: 	1) that there is no credible evidence to support the
commission's determination and 2) that the commission imposed an
incorrect burden of proof upon employer. 	We find no error and
affirm the commission's determination.
I.
FACTUAL BACKGROUND
On October 23, 1990, claimant, a preschool teacher, fell as
she was entering her vehicle, which was parked in the driveway of
a student she was visiting in the course of her employment.
After picking herself up, claimant drove to the school where she
* Pursuant to Code § 17.1-413, recodifying Code

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was required to report and notified employer of the incident. 	A
co-worker took claimant to the hospital, where she received six
stitches on her head. 	In addition to the laceration on her head,
claimant suffered a sore and stiff back and neck. 	Later that
day, claimant returned to work and finished teaching her
afternoon class.
During the week following her fall, claimant's symptoms did
not improve. 	On November 21, 1990, Dr. Thomas Calhoun began
treating claimant, who complained of neck and back pain at that
time. 	During the course of treatment, claimant's back pain did
not abate, although she received some relief from her neck pain.
On October 21, 1991, Dr. Calhoun commented upon the
difficulty that claimant had ambulating. 	At that time, "[h]er
ambulation [was] easier although she still walk[ed] with a
detectable limp." 	During the time he treated claimant, Dr.
Calhoun observed that claimant experienced only brief periods of
relief and could not walk without considerable pain.1
In September 1992, claimant was referred to Dr. Stephen
Levin, a specialist in low back pain and pelvic mechanics.
According to Dr. Levin's examination, claimant had to use a cane
to assist in ambulation and walked awkwardly with a limp. 	Dr.
§ 17-116.010, this opinion is not designated for publication.
1 Due to the continuing physical problems experienced by the
claimant, on October 23, 1991 she was referred to Dr. Paul
Salbert, who prescribed additional courses of physical therapy
over the following year. 	While he ultimately opined that the
claimant's dystonia was unrelated to her 1990 accident, we note
the commission's observation that Dr. Salbert is a general
practitioner, as well as his concession that a neurologist
should make a final determination as to the cause of claimant's
condition.

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Levin also prescribed a course of physical therapy for claimant.
Claimant's condition remained essentially unchanged until
December 1992, when some improvement occurred in her gait
pattern. 	On November 18, 1992, Dr. Levin indicated that claimant
continued to use a cane and had "exquisite tenderness in both
sacrospinous ligaments."
On February 11, 1993, Dr. Levin noticed that claimant
continued to exhibit a "very awkward gait pattern [in which] she
has to watch her feet and see where she is going." 	He also
observed that claimant displayed "unusual movements of her hands
as well," noting that "it does not seem to be the soreness that
is creating the abnormal gait, but something else."
On February 25, 1993, Dr. Levin noted that claimant believed
that she would be able to walk normally if she could "get rid of
the pain." 	However, her pain did not abate, and on March 25,
1993, claimant continued to demonstrate spastic, uncoordinated
patterns of movement.
On October 21, 1997, the claimant also was evaluated by Dr.
Stephen Grill, a neurologist practicing in Columbia, Maryland.
Dr. Grill observed, inter alia, that a person suffering a
movement disorder such as dystonia may remain undiagnosed for
years, unless the person is evaluated by a doctor experienced in
treating such disorders.
Claimant has been monitored by the National Institutes of
Health since August, 1993, and she has received treatment from
Dr. Michael Knable since November, 1995.
II.

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ANALYSIS
It is well established that on appeal, the factual findings
of the commission are conclusive and binding upon the Court of
Appeals, if those findings are supported by credible evidence.
See Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d
814, 187 (1989) ("The actual determination of causation is a
factual finding that will not be disturbed on appeal if there is
credible evidence to support the finding."); Commonwealth v.
Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986); see also
Code § 65.2-706. 	In particular, a finding by the commission on
the causal relationship between an accident and an injury is
binding if based on credible evidence. 	See C.D.S. Constr.
Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240
(1978).
In the present case, the commission reviewed a considerable
amount of expert testimony, outlined supra, and made the
following findings of fact with respect to the conflicts in the
evidence:
Based on the uniqueness and complexity of
dystonia, we find it reasonable that [the
claimant's] initial physicians linked the
disturbance to back and [sacroiliac] joint
problems without further investigation into
another source of the symptoms. 	The medical
record shows the physicians' uncertainty as
to the complainant's continuing symptoms,
despite seemingly thorough and appropriate
treatment. 	We are also persuaded by Dr.
Grill's observation that a person suffering
from a movement disorder may go undiagnosed
for years, unless detected by a physician
experienced in the field. 	Dr. Salbert's
opinion that the dystonia is unrelated to the
1990 accident is illustrative. 	Dr. Salbert,
a family practitioner, treated the claimant
for [sacroiliac] joint dysfunction, and his

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initial notes reflect that she exhibited an
antalgic gait. 	He did not order an MRI until
she complained of fine movement coordination
difficulties. 	While Dr. Salbert expressed
concerns with causality in his deposition of
February 24, 1998, he conceded that a
neurologist should make a causation
diagnosis. 	Moreover, Dr. Knable did not
completely discount a causal connection, as
the Commission observed. 	He stated on
November 30, 1995, that he could not
"completely exclude the possibility that the
trauma that Ms. Presti suffered is not
related to her dystonic movement
disorder. . . ."
In its review of the evidence, the commission resolved the
various conflicts in that evidence and found credible evidence
establishing a causal relationship between the claimant's
work-related trauma and the dystonic symptoms she experienced.
Because the commission's finding was based upon evidence that
appears credible, we will not disturb that finding on appeal.
See C.D.S. Constr. Services, 218 Va. at 1070, 243 S.E.2d at 240;
Powell, 2 Va. App. at 714, 347 S.E.2d at 533. 	While there is
conflicting medical evidence in the record, that fact in itself
is not enough to warrant a reversal of the commission's findings.
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.