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. 
 2 

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 
 3 

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. 
 4 

 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). 
 5 

 "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 
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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 
 7 

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 
 8 

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 
 9 

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 
 10 

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 
 11 

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.