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									VIRGINIA:                                                                                    12/02/2003
IN THE WORKERS’ COMPENSATION COMMISSION

KELLY E. FAUBER, Claimant
                                                                                                  Opinion by TARR
                v.                 VWC File No. 209-69-33                                            Commissioner

NTELOS, INC., Employer
TWIN CITY FIRE INSURANCE COMPANY, Insurer

A. Thomas Lane, Jr., Esquire
35 South Gate Court, Suite 101
Harrisonburg, VA 22801
For the claimant
(By Priority Mail)

Patsy L. Mundy, Esquire
Sands, Anderson, Marks & Miller
P.O. Box 1998
Richmond, VA 23218-1998
For the defendants

     REVIEW on the record before Commissioner Tarr, Commissioner Dudley and
Commissioner Diamond at Richmond, Virginia.

         The claimant requests Review of the Deputy Commissioner’s April 4, 2003, Opinion

finding she did not sustain a compensable injury by accident.1 We AFFIRM.

         The claimant filed a Claim for Benefits on May 9, 2002, alleging several neurological

and psychological injuries she believes she received after lightning struck a telephone line on

April 18, 2002. She sought various periods of disability benefits as well as medical benefits.

         The claimant testified that she worked as an inside sale representative for the employer.

To do her job, she sat in a cubicle and used a headset. She described the headset as an over-the-

ear headset. It had an earpiece in her left ear and a wand-type microphone in front of her mouth.



1
  Upon consideration of the issues presented, the record developed at the hearing, and the well-considered briefs filed by
the parties on review, we find that oral argument requested by claimant’s counsel is not necessary and would not be
helpful in this case. Barnes v. Wise Fashions, 16 Va. App. 108, 428 S.E.2d 301 (1993).
                                                                        VWC File No. 209-69-33


       The claimant remembered going to work on April 18, 2002, and that there were very bad

thunderstorms that day. She said, “I don’t know what I actually remember or what was told to

me that happened because I don’t remember myself.” She said that her recollection could simply

be from what others had told her. The fist thing she actually remembered was going to work for a

sales meeting the following week.

       The claimant testified that between April 18, 2002, and September 30, 2002, she

experienced many headaches and confusion.             She was having trouble performing her

“demanding, high pressure, high speed job.” She testified that on the date of the hearing she was

still having headaches, difficulty concentrating and she had trouble with her memory.

       On cross-examination, the claimant admitted being upset with the company before the

date of the accident. She agreed that she noticed a significant decrease in the amount of her

commissions because the company had increased quotas and increased the sales force. She also

agreed that in April 2002, the company was laying off workers. The claimant acknowledged that

she sent an e-mail on April 15, 2002, to Kirk Propst inquiring about the particulars of the lay-

offs, including asking if a person could take a voluntary layoff.

       Cindy Lawhorne, another inside sales representative, testified that her cubicle was

“cattycorner” from the claimant’s cubicle. Lawhorne testified that on April 18, 2002, there was a

storm that had thunder and lightning. Lawhorne stated:

               Kelly was on the phone with a customer, or a potential customer,
               and I remember just seeing a kind of a flash, a lightning flash or a
               flash of light around the corner of the L-shaped building about the
               same time some thunder rumbled. She took off her headset and
               asked if we’d heard it and we said yes.


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                                                                         VWC File No. 209-69-33


Lawhorne testified that within five minutes, the claimant came to Lawhorne’s desk and showed

her that she had some hair standing up on her arms and around the base of her neck. Later,

Lawhorne saw the claimant lying on the floor in the sales manager’s office. Lawhorne had no

problems with her phone that day.

       Rick Payne, another sales associate, testified that his cubicle was close to the claimant’s

cubicle, cattycorner across the aisle, and they had their backs to each other. He remembered

there was a thunderstorm on April 18, 2002, and that he and the claimant were on the phone.

Payne remembered that the claimant asked him if he was on the phone and said that her call

“dropped.” The claimant then said she had static on her phone, and she pulled her earpiece off.

Payne could hear the static. When Payne went to get something from the printer, he saw the

claimant lying on the sales manger’s floor because she was not feeling well.

       Joseph Stange testified as an expert in the installation, repair, and maintenance of voice

date and network systems. Stange testified that he is familiar with the system used by the

employer on which the claimant was working on April 18, 2002.

       Stange tested the site to check for a lightning strike. He said he examined the wires and

fuse link, as well as the circuit pack and trunk cards. There was no evidence of a lightning strike.

He said that normally, if a system is hit by lightning, he would see power supplies affected, burn

marks, holes, soot on the circuit cards back-playing, and the system would be in an out-of-

service condition. There was no evidence of any of these things on this system. Even if the

strike were minimal, he would have seen a failed circuit pack at the time of her alleged accident.

He explained that the power system was from commercial power running off batteries, which are


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                                                                       VWC File No. 209-69-33


an excellent filter. He saw no evidence of a lightning strike through the power lines or through

the phone lines.   Based on his testing, Stange determined that the system was not hit by

lightning.

       In his report, Stange indicated that the telephone set was not available for testing. He

said that availability of the set would not have made a difference in his testing because if the

lightning did not get through the circuit pack, it would not have hit the telephone which is down

line. The lightning would not have come in at another point and affected the claimant’s set

because of the way the connections are made. Stange said the static reported on the claimant’s

phone would not be a determining factor one way or the other; static does not indicate a burned

phone. In his experience, it was not possible for the lightning to have struck and come into the

claimant’s phone and no one else’s phone. He also said it was not possible, unless lightning

came through the window and hit the phone, that the lightning would have hit the phone and not

the phone system first.

       Kirk Propst, human resource coordinator, testified that before her alleged accident, the

claimant’s sales had gone down, but she still maintained her quotas. Karen Bourne, the sales

manager, testified that the claimant seemed unhappy with her job after the company

implemented a new commission structure and brought in new sales representatives.

       Bourne said that the claimant had expressed a desire to work for her father on several

occasions, including the date of the alleged incident. The claimant was also very concerned

about the employer’s potential downsizing.




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                                                                          VWC File No. 209-69-33


       Bourne further testified that in the late afternoon of April 18, 2002, the claimant came

into Bourne’s office saying she was not feeling well and heard a buzzing in her ear. She also

seemed very nervous. She told Bourne to look at the hairs standing up on her arm and the

claimant laid down on the floor. Bourne contacted human resources, and an ambulance picked

up the claimant around 4:00 or 4:30 p.m.

       The medical records indicate that the claimant treated with Dr. Richard Alderfer on April

29, 2002, reporting that “lightning came through the phone lines and hit me.” She reported

headaches, nausea, slurred speech, feet and hand swelling, right hand tremors, and difficulty

concentrating. Dr. Alderfer opined that the claimant received an electrical impulse through

lightning through the left side of her head with some tremor of the right and left arms, slurred

speech and some memory loss.          Dr. Alderfer connected the claimant’s symptoms to the

purported lightning strike.

       Dr. Alderfer referred the claimant to Dr. Karen Glembocki for neurological evaluation.

Dr. Glembocki recorded the following history:

               Ms. Fauber was sitting at her work station wearing a headset when
               she suddenly noticed a bright light flash in front of her eyes and
               the ear piece in her left ear buzzed, and seemed to move. She took
               it off and stood up. At that point she noticed that all the hair on her
               arms was standing straight up. She was not feeling very well and
               called her fiancé on her cell phone. Later she could not recall
               anything about the conversation.

The claimant complained of headaches, dizziness, tremors, memory loss, and intermittent

dysarthria. Dr. Glembocki noted that the claimant’s neurological exam was significant for lack

of cognitive deficits and some evidence of embellishment. She noted that the claimant’s tremor


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                                                                        VWC File No. 209-69-33


remitted when the claimant was distracted. Dr. Glembocki felt that most of the claimant’s

symptoms were related to the anxiety related to the initial incident and some fear of being

exposed to electricity again upon returning to work.

       The claimant also saw Dr. Madaline Harrison and Dr. Jeffrey Tramonte, in the

Department of Neurology at the University of Virginia, on July 25, 2002. Dr. Tramonte noted

the following history:

               The patient states she was at work in April, 2002, wearing a
               telephone headset, during an electrical storm, when there was a
               bright flash of light, the headset pressed up against her ear and
               bruised it, and she later stood up removed the headset and
               coworkers noted that the hair on her head was standing up. She
               was not burned in the process however was amnestic for what
               happened to her, she recalls this today only through second hand
               reports from her coworkers who witnessed the event.

Dr. Tramonte opined that the claimant appeared to be “suffering the neuropsychological

consequence of lightning exposure or electrical injury exposure that has been described in the

limited literature that exists.”   He did not recommend further neurologic workup and

recommended counseling if anxiety or post-traumatic stress disorder was a consideration.

       In finding that the claimant did not suffer from a lightning strike as alleged, the Deputy

Commissioner reasoned:

                       The claimant’s case and all medical opinions rendered
               therein rest entirely on the assumption that the claimant suffered a
               “lightning strike” on April 18, 2002. If such an event did not, in
               fact, occur, then the claimant’s claim collapses. After a review of
               the records, as well as the credible and persuasive testimony of
               Joseph Stange, the Commission is convinced that no such event
               occurred. Stange, an expert on systems such as the one employed
               by Ntelos, testified unequivocally and without rebuttal that no
               lightning strike affected the system on April 18, 2002. Stange

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                                                                         VWC File No. 209-69-33


               gave logical, credible unrebutted testimony that a strike could not
               have occurred as the claimant described - coming in only her
               phone without some other systemic evidence of a strike.

                       Stange’s evaluation of the system revealed absolutely no
               evidence of a lightning strike and the claimant could provide no
               details to the Commission as to what happened on that date,
               although she apparently provided extensive details to various
               healthcare providers. The claimant’s co-workers could only testify
               that they heard a clap of thunder and saw a flash outside the
               building. This, in and of itself, does not indicate that lightning
               struck the system, struck the building or in any way affected the
               claimant’s headset.

The Deputy Commissioner reasoned that because there was not any reliable evidence of a

lightning strike, all of the claimant’s treatment and opinions about causation and disability were

irrelevant.

        We agree with the Deputy Commissioner’s analysis.

        The expert witness, Stange, testified that it was not possible that the claimant was struck

by lightning through her phone. Stange testified unequivocally that the phone or power system

would have provided some indication of a lightning strike, and it was impossible for lightning to

affect only the claimant’s phone without affecting other parts of the system.

        The claimant testified that she had no independent recollection of the alleged events of

April 18, 2002. She testified that her knowledge comes only from things she has been told by

co-workers. The testimony of her co-workers indicates that it was storming, that the claimant

asked if they had heard a clap of thunder, that she showed them the hair standing up on her arm,

that the claimant also heard static on her telephone and that she went into the manager’s office




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                                                                          VWC File No. 209-69-33


later that afternoon complaining of a buzzing in her ears. While this evidence is relevant, it does

not prove the claimant experienced a lightning strike through her telephone.

       The claimant argues that Stange’s testimony should be afforded little weight because he

did not examine the claimant’s headset. Stange testified that the headset would not have made a

difference in his testing because if the lightning did not get through the circuit pack, it would not

have hit the telephone. While the claimant may have experienced something that day, we find

that the evidence does not preponderate in establishing that she was injured in a lightning strike

through her headset at work on April 18, 2002.

       For these reasons, we AFFIRM the Deputy Commissioner’s Opinion.

       This case is hereby removed from the Review docket.

                                             APPEAL

       This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty

days of receipt of this Opinion.



c:     Kelly E. Fauber
       P.O. Box 431
       Greenville, VA 24440

       Ntelos, Inc.
       1160 Shenandoah Drive
       Waynesboro, VA 22980

       Twin City Fire Insurance Company
       Workers Compensation Claim Center
       P.O. Box 1097
       Hunt Valley, MD 21030



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