DULCIE v. G & A COAL
COMPANY, INC., ET AL.
DECEMBER 23, 1997
Record No. 1303-97-3
JOHN WADE DULCIE
G & A COAL COMPANY, INC., ET AL.
BY JUDGE LARRY G. ELDER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
Gerald F. Sharp (Browning, Lamie & Sharp, on brief), for
Stanford T. Mullins (Street, Street, Street, Scott & Bowman,
on brief), for appellees.
John Wade Dulcie (appellant) appeals a decision of the
Workers’ Compensation Commission (commission) denying his
change?in-condition claim for benefits. He contends that the
evidence was insufficient to support the commission’s finding
that he failed to prove that the recent tear of cartilage in his
left knee was causally connected to a previously compensated tear
of cartilage in the same knee. For the reasons that follow, we
reverse and remand.
Since before 1994, appellant has worked as a roof bolter in
coal mines operated by G & A Coal Company, Inc. (employer).
Appellant’s duties require him to work on his knees or in a
crouched position "all the time."
On May 13, 1994, appellant twisted his knee at work while
trying to avoid a "rock fall." In the weeks following
this incident, appellant experienced "repeated locking
episodes in the knee which required that he manually straighten
the knee." On June 7, 1994, Dr. Philip J. Branson examined
appellant and concluded that he suffered a torn lateral meniscus
in his left knee. On June 24, 1994, Dr. Branson performed an
arthroscopy on appellant’s left knee to repair the problem. The
doctor found "a tear through the outer 1/3 of the lateral
meniscus medial to and extending up to the popliteus
hiatus." Appellant was released to return to work on
September 20 and resumed his regular duties on September 21.
Employer accepted appellant’s knee injury (1994 injury) as
compensable. Pursuant to a memorandum of agreement, employer and
Old Republic Insurance Company (insurer) paid temporary total
disability benefits from June 24, 1994 through September 20,
1994, permanent partial disability benefits for a five percent
loss of use of appellant’s left leg, and appellant’s medical
On April 24, 1996, appellant’s knee locked up as he was
sitting on the floor of a scoop. Appellant saw Dr. Branson the
following day, and the doctor diagnosed appellant with another
tear of the lateral meniscus in his left knee. Dr. Branson
recommended that appellant undergo another arthroscopy of his
left knee to repair the torn cartilage. On June 4, 1996, Dr.
Branson expressed his opinion regarding the cause of appellant’s
recently torn cartilage. He stated:
It is my opinion that since [appellant] recovered for more
than three months and healed and returned to work that the new
injury reported getting out of the scoop is probably the
causative problem requiring surgery at this point.
Appellant filed two claims for benefits regarding the
"1996 injury" to his left knee: one alleging that he
had suffered a change in condition causally connected to his 1994
injury and one alleging that he had suffered a new injury to his
knee. Following a hearing, a deputy commissioner denied both
of appellant’s claims. Appellant appealed, and the full
commission affirmed the deputy commissioner’s decisions.
CHANGE IN CONDITION
On appeal, appellant does not challenge the commission’s
conclusion that he did not suffer a new injury by accident on
April 24, 1996. Instead, he contends that the commission erred
when it concluded that he did not experience a compensable change
in condition related to his 1994 injury. Appellant argues that
the evidence is insufficient to support the commission’s factual
finding that he failed to prove by a preponderance of the
evidence that his 1996 injury was causally connected to his 1994
injury. We agree.
Under Code ?
65.2-708, a claimant may request the commission to increase
compensation previously awarded "on the ground of a change
in condition." "In an application for review of any
award on the ground of change in condition, the burden is on the
party alleging such change to prove his allegations by a
preponderance of the evidence." Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
The General Assembly has defined a "change in
a change in physical condition of the employee as well as
any change in the conditions under which compensation was
awarded, suspended, or terminated which would affect the
right to, amount of, or duration of compensation.
Code ? 65.2-101. A
change in an employee’s physical condition that is compensable
under Code ? 65.2-708
includes any "’progression, deterioration, or
aggravation’" of a previously compensated injury. Leonard
v. Arnold, 218 Va. 210, 213-14, 237 S.E.2d 97, 99 (1977)
(quoting 3 Arthur Larson, The Law of Workmen’s Compensation
? 81.31 (1976)).
However, "a new and separate accidental injury" may not
be compensated as a change in condition of a previous injury. Id.
at 214, 237 S.E.2d at 99. Thus, when an employee seeks
compensation under Code ?
65.2-708, the employee must prove that the change in his
condition is "causally connected with the injury originally
compensated." King’s Market v. Porter, 227 Va. 478,
483, 317 S.E.2d 146, 148 (1984).
"Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court." Manassas Ice & Fuel Co. v. Farrar,
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991); see Code
? 65.2-706(A). On
appeal, we view the evidence in the light most favorable to the
prevailing party below. R.G. Moore Bldg. Corp. v. Mullins,
10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). It is well
established that the commission’s determination of causation is a
factual finding that will not be disturbed on appeal if supported
by credible evidence. See American Filtrona Co. v.
Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511, 515 (1993)
(citing Ingersoll?Rand Co. v. Musick, 7 Va. App. 684,
688, 376 S.E.2d 814, 817 (1989)).
We hold that the commission erred when it concluded that
appellant did not suffer a compensable change in condition.
Specifically, the commission’s factual finding that appellant
failed to prove that his 1996 injury was causally connected to
the 1994 injury was not supported by credible evidence.
The commission denied appellant’s change-in-condition claim
because it found that the tear in the cartilage in his left knee
diagnosed by Dr. Branson in April 1996 was not causally connected
to his 1994 injury. Although the commission referred to
appellant’s testimony "that he had experienced ongoing pain
in the knee," it based its factual finding of causation on
two pieces of evidence: (1) Dr. Branson’s opinion that
appellant’s recent cartilage tear was not "caused by the
original compensable injury" and (2) the fact that
"[appellant] did not receive medical treatment between
December 1994 and April 25, 1996, a period of some 16
None of the evidence relied upon by the commission supports
its finding that appellant failed to prove a causal connection
between his 1996 injury and his 1994 injury. First, Dr. Branson’s
opinion regarding causation was speculative and not
"credible" as a matter of law. As such, it provides no
support for the commission’s factual finding of causation.
In order to possess relevant evidential value, a doctor’s
expert medical opinion must not be speculative. See Gilbert
v. Summers, 240 Va. 155, 160, 393 S.E.2d 213, 215 (1990); Spruill
v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421
(1980). A doctor’s expert medical opinion is not speculative if
it is based on an accurate understanding of the relevant facts
and if it is based on a reasonable probability and not a mere
possibility. See Gilbert, 240 Va. at 160, 393
S.E.2d at 215 (stating that an expert’s opinion is speculative if
not based upon facts within his knowledge or established by other
evidence); Clinchfield Coal Co. v. Bowman, 229 Va. 249,
252, 329 S.E.2d 15, 16 (1985) (holding that a doctor’s medical
opinion was not credible when based upon a faulty premise); Spruill,
221 Va. at 479, 271 S.E.2d at 421 (stating that a medical opinion
is speculative if based on a "possibility" and
admissible if based on a "reasonable probability"); Sneed
v. Morengo, Inc., 19 Va. App. 199, 205, 450 S.E.2d 167, 171
(1994) (stating that "[w]henever a physician’s diagnosis
flows from an assumption that rests upon a faulty premise . . .
the commission may refuse, and often will be required to
refuse, to attribute any weight to that opinion"
Dr. Branson’s opinion regarding causation was speculative, and
thus incompetent, because it was based on a flawed understanding
of the history of appellant’s recovery from his 1994 injury. In
June 1996, the doctor opined that the recent tear in appellant’s
left lateral meniscus was a new injury and not causally
related to appellant’s 1994 injury because "[appellant] recovered for more than three months and healed and returned
to work." (Emphasis added). However, both Dr. Branson’s
own notes and appellant’s testimony established that the injury
to appellant’s knee in 1994 never healed completely. Prior to
appellant’s surgery in 1994, Dr. Branson warned him that the
arthroscopic procedure carried with it a twenty percent risk of
failure and that appellant might continue to experience
"continued pain, swelling and symptoms, despite surgical
intervention." Dr. Branson’s own notes indicate that
appellant told him in December 1994, more than five months after
his initial surgery, and three months after he was released to
return to work, that he still experienced "occasional
weakness and popping" in his left knee. Dr. Branson’s notes
also indicate that, when appellant returned to see the doctor
following the locking of his knee on April 24, 1996, appellant
stated that "since [his 1994 surgery] he had improvement of
pain but has occasional feelings of locking in the knee."
(Emphasis added). Appellant’s testimony, which was unrebutted,
established that he experienced locking in his knee almost
immediately upon his return to work in September 1994. He
testified that the locking episodes increased in frequency over
time and that the condition of his left knee deteriorated to the
point that he was unable to manually unlock his knee on April 24,
1996. Because the record established that appellant was never
free of symptoms associated with torn knee cartilage following
his 1994 surgery, Dr. Branson’s statement that appellant’s injury
had "healed" prior to his return to work in September
1994 was inaccurate. This flawed understanding of appellant’s
recovery, which provided the foundation for Dr. Branson’s opinion
that appellant’s 1996 injury was "new," indicates that
the doctor’s opinion was speculative and thus legally incompetent
to prove causation.
In addition, the other fact relied upon by the commission has
no tendency to support its finding of causation. The commission
reasoned that appellant’s testimony that he "experienced
ongoing pain in the knee" was insufficient to prove a causal
connection between his 1996 injury and his 1994 injury because
"[he] did not receive medical treatment between December
1994 and April 25, 1996, a period of some 16 months."
However, appellant’s unrebutted testimony established both that
he experienced increased locking in his left knee during this
time and that he was always able to alleviate this symptom by
manually straightening his leg. In addition, appellant’s
testimony indicated that, as long as he could unlock his knee
himself, he was able to perform his regular duties without
interruption. Appellant testified that he did not see Dr. Branson
from December 1994 until April 1996 because "[he] didn’t
think it would do any good because . . . as long as [he] could
straighten [his left knee] out and pop it back in it felt
fine." In light of both this unrebutted evidence and the
fact that Dr. Branson’s opinion is legally incompetent, the bare
fact that appellant decided against seeking early medical
treatment for his continuing knee problems does not support the
commission’s finding that he failed to prove that his 1996 injury
was causally connected to his 1994 injury.
Because no credible evidence supports the commission’s finding
that appellant failed to establish a causal connection between
his 1996 injury and his 1994 injury, this finding is not binding
Based on our review of the record, we hold that appellant
proved as a matter of law that the change in condition he
experienced in April 1996 was causally connected to his 1994
injury. Although the record does not contain a competent medical
opinion regarding causation, a claimant is not required to
produce a physician’s medical opinion in order to establish
causation. Dollar General Store v. Cridlin, 22 Va. App.
171, 176-77, 468 S.E.2d 152, 154-55 (1996). Causation of a
condition may be proved by either direct or circumstantial
evidence, including medical evidence or "[t]he testimony of
a claimant." Id. at 176, 468 S.E.2d at 154.
Dr. Branson’s notes and appellant’s testimony established that
the cartilage tear diagnosed by Dr. Branson in 1996 was causally
connected to the 1994 injury. Appellant testified that the injury
to his left knee "never was fixed right" following his
surgery in 1994. He testified that when he returned to work in
September 1994, his left knee locked up "every once and a
while." Dr. Branson noted in December 1994 that appellant
reported experiencing occasional "popping" in his knee.
Appellant testified that the locking of his knee increased in
frequency over time until it occurred thirty or forty times
within an eight-hour period. Although appellant was always able
to manually unlock his left knee, this procedure became more
difficult in the three months preceding April 1996. Appellant
testified that, on April 24, 1996, his left knee locked up while
he was sitting on the floor of a crowded scoop. He testified that
he discovered that his knee had locked when he "stood
up" from his sitting position to exit the scoop. Unlike
previous episodes of locking, appellant was unable to
"unlock" or straighten his left knee himself. Dr.
Branson’s notes indicate that when appellant saw the doctor the
following day, appellant reported a history of "occasional
feelings of locking in the knee" since his surgery in 1994.
In light of this evidence, we conclude that appellant established
as a matter of law a causal connection between his 1996 change in
condition and his 1994 injury.
For the foregoing reasons, we reverse the decision of the
commission denying appellant’s change-in-condition claim. We
remand appellant’s claim for further proceedings consistent with
this memorandum opinion.
Reversed and remanded.
 Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.