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Dulcie v. G & A Coal Company, Inc.

Court of Appeals of Virginia

December 23, 1997

JOHN WADE DULCIE
v.
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.

Present: Judges Coleman, Elder and Senior Judge Cole.

MEMORANDUM OPINION [*]

LARRY G. ELDER, JUDGE

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 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 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. ...


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