Sibai v. Sterling Jewelers
| Decision Date | 29 December 2020 |
| Docket Number | Record No. 0678-20-4 |
| Court | Virginia Court of Appeals |
| Parties | JIHAD JAY SIBAI v. STERLING JEWELERS AND XL SPECIALTY INSURANCE COMPANY |
UNPUBLISHED
Present: Judges Beales, Malveaux and Senior Judge Clements
Argued by videoconference
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin T. Boscolo (Krista N. DeSmyter; ChasenBoscolo Injury Lawyers, on brief), for appellant.
Nirav Patel (Alex Mayfield; Franklin & Prokopik, PC, on brief), for appellees.
Jihad J. Sibai ("claimant") appeals a decision of the Virginia Workers' Compensation Commission ("the Commission") denying certain claims for benefits. He argues that the Commission erred in (1) finding that he did not suffer a compensable injury by accident to his left ear, nose, face, or neck; (2) finding that his post-concussion seizures are not causally related to his work injury; and (3) denying his claim for temporary total disability benefits for the period August 15 to November 30, 2018. For the following reasons, we affirm the Commission's decision.
"Under our standard of review, when we consider an appeal from the Commission's decision, we must view the evidence in the light most favorable to the party who prevailedbefore the Commission." City of Newport News v. Kahikina, 71 Va. App. 536, 539 (2020). Here, the prevailing party was Sterling Jewelers and XL Specialty Insurance Company (collectively "employer").
Claimant worked for employer as a jewelry salesman. He testified that on October 8, 2017, while he was preparing a display case, the access panel he was holding up fell against the left side of his head. After that, claimant stated,
When claimant revived, his co-workers were gathered around him. Someone had put ice on claimant's nose, and his colleagues told him that his nose had been bleeding. Claimant's manager told him that he was bleeding from his ear. His co-workers asked claimant if he wanted to go to the hospital, but he told them that he was okay. However, claimant testified his bleeding continued, and he began to experience left ear pain, a bad headache, and blurred vision. Claimant's manager sent him home.
Claimant stated that his blurred vision and headache persisted during his drive home. He also stated that he subsequently experienced a seizure at home, during which he bit his tongue and experienced pain in his head and throughout his body. Claimant denied experiencing such symptoms prior to his workplace accident.
Claimant's wife, Reem Tamim, testified that when claimant returned home on October 8, 2017, he told her that he had been injured at work and had been bleeding from his nose and ear. Claimant was dizzy, and about two hours after his return home, he started shaking and bit his tongue. Tamim stated that this behavior lasted for approximately fifteen seconds before claimant relaxed.
Claimant first sought treatment on October 19, 2017, at the emergency room of Inova Fairfax Hospital. During that visit, claimant was diagnosed with a post-concussion headache and a closed head injury. A CT scan revealed no acute traumatic intracranial abnormalities. Treatment notes indicate that claimant had suffered "1 episode of seizure like activity" and that a neurological evaluation "report[ed] . . . likely post-concussion seizure."
Claimant followed up with a neurologist, Dr. Kurukumbi, who placed claimant on Keppra, an anti-seizure medication. The doctor's November 3, 2017 treatment notes indicate that claimant was complaining of imbalance and had fallen down the stairs that day. Dr. Kurukumbi recommended an MRI and an EEG and that claimant continue taking Keppra. Dr. Kurukumbi's subsequent notes reflect that claimant's EEG indicated a "[n]ormal study . . . within normal limits for age" and "no evidence of epileptiform activity."
Claimant again saw Dr. Kurukumbi on January 5, 2018. Treatment notes from that visit indicate that claimant had undergone an MRI, the results of which were "non lesional for epilepsy." The doctor continued to prescribe Keppra for claimant.
In response to a questionnaire from employer, Dr. Kurukumbi opined on February 9, 2018, that claimant had not suffered any permanent impairment from his head injury or concussion.
On March 20, 2018, Dr. Raham Alsukari of the Virginia Cardiovascular Group examined claimant. Dr. Alsukari noted that claimant complained of shortness of breath, heart palpitations, dizziness, and left upper extremity and left facial numbness. The doctor's notes further indicate that claimant had a history of hypertension and "[e]pilepsy, [u]nspecified," as well as of nosebleeds which had begun eight years previously. Claimant reported that he was an everydaysmoker. Dr. Alsukari diagnosed claimant with uncontrolled hypertension and noted that he "has symptoms of TIAs," or transient ischemic attacks.1
Claimant's medical records reflect that Dr. Mohammed Labbaf of the NOVA Neurology Center examined claimant on May 16, 2018. Dr. Labbaf's notes indicate that claimant reported nosebleeds, high blood pressure, occasional mild dizziness, occasional numbness in the left side of his face, and anxiety. Dr. Labbaf diagnosed claimant with post-concussional syndrome, hypertension, anxiety disorder, dizziness and giddiness, and "[u]nspecified convulsions" and continued claimant's Keppra medication.
During a subsequent examination by Dr. Labbaf on June 6, 2018, the doctor noted that he had reviewed claimant's head and neck CT scans and reported that all of the images were normal. Dr. Labbaf also referred claimant for an EEG, the results of which were "within normal limits."
Claimant again saw Dr. Labbaf on July 24, 2018. Dr. Labbaf noted claimant's normal test results and instructed him to "taper off" his Keppra medication.
Claimant testified that after he had his EEG, Dr. Labbaf told him "you don't have any kind of seizure, so . . . you can stop the [Keppra]." After he stopped taking Keppra, claimant stated, he began experiencing "lots of symptoms," including involuntary movements of his arms and legs, blurry vision, numbness, and difficultly sleeping. At times, claimant was unable to go to sleep for several days. Claimant denied having experienced any involuntary movements before he stopped taking Keppra.
Tamim testified that on August 15, 2018, she took claimant to his primary care doctor because he had been unable to sleep for three or four days and had begun to hallucinate. The doctor prescribed Ambien for claimant, and he began taking the medication. However, the medication did not help claimant and his hallucinations worsened. Shortly before midnight on August 15, Tamim took claimant to the emergency room.
There, claimant reported experiencing "worsening jerking movements," visual hallucinations, and insomnia over the previous few days. Claimant stated that he had been off Keppra for five days but had taken one dose earlier that evening in response to his jerking movements. Medical staff noted "[i]ntermittent jerking of hands or tapping of hands that stops when [claimant is] distracted." Further, claimant was experiencing intermittent hallucinations that "could . . . be stress related, medication related or due to sleep deprivation." Claimant was given Ativan and went home with Tamim.
Tamim testified that a few hours later, during the early hours of August 16, 2018, claimant had a seizure and fell down the stairs at home. Claimant himself testified that he "fell down from the stairs, had a seizure and I don't remember what happened after that." Claimant broke his left shoulder during the fall.
Claimant returned to the emergency room where Dr. Vidya Raju examined him and noted that it was "[u]nclear if patient had seizure episode . . . causing the fall or not." Dr. Raju indicated that during a previous evaluation, Tamim had reported that claimant Dr. Raju's clinical impressions included "[a]lcohol withdrawal, [f]all, HALLUCINATIONS, POSSIBLE SEIZURE."
The following day, Dr. Naila Rana, a neurologist, examined claimant and noted that he had been taking Keppra "for questionable seizures" but that his medication had been discontinued. Dr. Rana indicated that "Korsakoff's psychosis could be the possibility" of claimant's symptoms, "as he does have a history of alcohol use." She further indicated that Keppra can cause agitation and mental status changes. Her notes from an August 29, 2018 evaluation reported that a brain MRI and a spinal tap did not show any intracranial abnormalities.
On September 6, 2018, Dr. Rana completed a Department of Labor certification of claimant's health condition. She stated that claimant's medical conditions included "seizure disorder, head injury, memory difficulties, visual disturbances, L[eft] shoulder dislocation, and concussion." Dr. Rana indicated that claimant's conditions dated from "Oct. 2017. lately Aug. 15, 2018."
On March 1, 2019, claimant filed a claim for benefits alleging compensable injuries by accident to his head, nose, left ear, face, neck, and left shoulder with numbness of his left arm and fingers. Claimant also alleged compensable conditions including seizures, loss of memory and concentration, and blurry vision. Further, claimant sought temporary total disability benefits for the period August 15 to November 30, 2018.2 Employer stipulated to a compensable injury to claimant's head but contested the other alleged injuries and conditions.
The medical records and testimony noted above were submitted to the deputy commissioner, together with an additional document prepared by Dr. Rana on October 31, 2019....
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