                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


HERBERT FELIX STACY, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 0661-00-3                         PER CURIAM
                                                JULY 18, 2000
WESTMORELAND COAL COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (P. Heith Reynolds; Wolfe & Farmer, on
             brief), for appellant.

             (Michael F. Blair; Penn, Stuart & Eskridge,
             on brief), for appellee.


     Herbert Felix Stacy, Jr. contends that the Workers'

Compensation Commission (1) erred in finding that he failed to

prove that the 1998 medical treatment for his left knee was

causally related to his August 15, 1990 compensable injury by

accident; (2) improperly issued a decision where only two

commissioners participated; and (3) issued an invalid decision

because one of the two commissioners who participated rendered a

dissenting opinion.     Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission’s decision.        See

Rule 5A:27.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                  I.

     "General principles of workman's compensation law provide

that '[i]n 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.'"   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,

464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572

(1986)).   Unless we can say as a matter of law that Stacy's

evidence sustained his burden of proof, the commission's findings

are binding and conclusive upon us.      See Tomko v. Michael's

Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).        So

viewed, the evidence established that on August 15, 1990, while

working for employer as a mine helper, Stacy suffered a

compensable left knee injury.    On August 23, 1990, Dr.

Kenneth D. Kiser noted no complaints by Stacy and reported a

stable ligament, no effusions, and normal range of motion.        Dr.

Kiser diagnosed a resolved medial collateral ligament strain and

released Stacy to return to work.

     Stacy testified that he suffered constant left knee pain

after the August 1990 accident.    He admitted, however, that he


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continued working in the mines, except for a few days

immediately after that accident.   Stacy did not seek medical

treatment for any left knee problems between August 1990 and May

1998, although he sought medical treatment for various other

types of injuries.   Stacy admitted and the medical records

confirmed that he also suffered from left knee problems before

the August 1990 accident.

     Stacy testified that on May 14, 1998, his pain worsened

when he was vacuuming and his knee popped.   At the hospital

emergency room, Stacy reported that he "was vacuuming his home,

slipped, left leg twisted, says it moved sideways, and then he

heard a popping sound.   Says at that time he felt his entire leg

go numb."   Stacy did not report a history of the August 1990

knee incident to the emergency room personnel.

     On May 26, 1998, Dr. James R. Schwartz, an orthopedic

surgeon, treated Stacy for the first time and recorded a history

of "vacuuming in the house a week ago and [his] knee popped."

Dr. Schwartz also recorded a history of a 1987 or 1988 knee

injury, but no history of an August 1990 knee injury.

     On June 2, 1998, Stacy's physical therapist noted the

vacuuming incident and that Stacy's knee problems began in 1987

or 1988 when he was working in the mines.    The physical

therapist also noted that Stacy continued working after the 1987

or 1988 incidents and had "only had soreness in the left knee


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during bad weather since that time until these recent

occurrences."

     On July 14, 1998, Dr. Schwartz performed arthroscopic

surgery on Stacy's left knee.   Dr. Schwartz diagnosed an

anterior cruciate ligament tear, a bucket-handle medial meniscus

tear, and post-traumatic arthrosis, left knee.   In his

deposition, Dr. Schwartz opined that the bucket-handle tear

occurred with the vacuuming incident, that the anterior cruciate

ligament tear was probably the result of a very old cruciate

ligament tear, and that the joint surface damage was very old.

     In August 1998, Dr. Schwartz performed total knee

replacement surgery on Stacy's left knee.   Dr. Schwartz admitted

that he neither received a specific history from Stacy regarding

an August 5, 1990 injury nor did he have any information

regarding Stacy's pre-1990 knee injuries.   Even so, in his

December 17, 1998 deposition, Dr. Schwartz agreed, within a

reasonable degree of medical certainty, that the August 5, 1990

injury resulted in the total knee replacement.   Ten health

insurance claim forms submitted by Dr. Schwartz's office prior

to the February 9, 1999 hearing, for treatment rendered by Dr.

Schwartz to Stacy between May 1998 and October 1998, indicated

that Stacy's injury occurred on May 18, 1998 and was not related

to his employment.




                                - 4 -
     On October 27, 1998, Dr. Nabil Ahmad examined Stacy and

reported that Stacy first injured his left knee in 1985 while

working in the mines.   Dr. Ahmad noted that Stacy continued to

work in the mines and that his symptoms did not get severe until

May 1998.   Dr. Ahmad diagnosed possible reflex sympathetic

dystrophy of the left leg and knee.     Although Dr. Ahmad treated

Stacy on several occasions, Stacy did not tell Dr. Ahmad about

the August 5, 1990 injury until January 12, 1999.    In response

to a questionnaire from Stacy's attorney, Dr. Ahmad checked

"yes" to the question of whether Stacy's RSD was related to the

August 15, 1990 injury.

     On February 8, 1999, Dr. William A. McIlwain, an orthopedic

surgeon, who examined Stacy at employer's request, opined as

follows:

            I do not think that there is a way to say,
            with any degree of medical certainty or
            probability at all, that the injury of 1990
            led to the total knee [replacement] of 1998.
            This is especially so since the knee
            demonstrated degenerative changes in 1985
            that were "severe." Additionally, his
            records indicate that he was doing fairly
            strenuous labor with no particular lost time
            or problems over those years.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   Moreover, "[q]uestions raised by

conflicting medical opinions must be decided by the commission."

                                - 5 -
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d

231, 236 (1989).

     The commission weighed the conflicting medical evidence and

articulated its reasons for rejecting the opinions of Drs.

Schwartz and Ahmad regarding causation.    In addition to the

conflicting medical evidence, the record contains the following

credible evidence:   Dr. Schwartz's admitted lack of information

regarding Stacy's pre-1990 knee problems; Dr. Schwartz's opinion

regarding causation contained on the health claim forms; Dr.

Ahmad's lack of knowledge of the August 1990 injury until

January 1999; Stacy's ability to continue working in the mines

between August 1990 and May 1998; the lack of any medical

treatment for left knee problems between August 1990 and May

1998; and the intervening May 1998 vacuuming incident.    The

commission, as fact finder, was entitled to conclude from this

evidence that Stacy failed to prove by a preponderance of the

evidence that the medical treatment for his left knee problems

beginning in May 1998 was causally related to the August 1990

accident.

                            II. and III.

     Stacy contends that the commission's opinion is invalid

because two commissioners and one deputy commissioner participated

in the decision.   Stacy also alleges that the decision was invalid

because one of the two commissioners issued a dissent.


                               - 6 -
        Stacy failed to raise these procedural issues before the

commission either in the form of an objection, a motion for

reconsideration, or a motion to vacate the opinion within thirty

days.    Thus, we are barred by Rule 5A:18 from considering these

issues on appeal.    See Overland Door Co. v. Lewis, 29 Va. App. 52,

62, 509 S.E.2d 535, 539-40 (1999).       Moreover, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.

        For these reasons, we affirm the commission's decision.

                                                              Affirmed.




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