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. 
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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. 
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 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." 
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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. 
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 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.