COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia
JOHN WADE DULCIE MEMORANDUM OPINION * BY v. Record No. 1303-97-3 JUDGE LARRY G. ELDER DECEMBER 23, 1997 G & A COAL COMPANY, INC., ET AL.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gerald F. Sharp (Browning, Lamie & Sharp, on brief), for appellant. 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.
I.
FACTS
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
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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
expenses.
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
2 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.
II.
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.
3 A.
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 (1986). The General Assembly has defined a "change in condition" as: 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).
4 "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)).
B.
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.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia
JOHN WADE DULCIE MEMORANDUM OPINION * BY v. Record No. 1303-97-3 JUDGE LARRY G. ELDER DECEMBER 23, 1997 G & A COAL COMPANY, INC., ET AL.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gerald F. Sharp (Browning, Lamie & Sharp, on brief), for appellant. 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.
I.
FACTS
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
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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
expenses.
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
2 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.
II.
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.
3 A.
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 (1986). The General Assembly has defined a "change in condition" as: 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).
4 "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)).
B.
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
5 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 months."
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
6 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"
(emphasis added)).
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
7 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
8 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 on appeal.
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
9 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
10 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.