                    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.




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                                  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).



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     "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.




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