Herbert Felix Stacy, Jr. v Westmoreland Coal Comp

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.