John D. Bays v. SWB Construction Corp. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JOHN D. BAYS
v. Record No. 2397-96-3 MEMORANDUM OPINION *
PER CURIAM
SWB CONSTRUCTION CORPORATION MARCH 18, 1997
AND
THE HOME INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lawrence L. Moise, III; Vinyard & Moise, on
brief), for appellant.
(L. Johnson Sarber, III; Johnson, Ayers &
Matthews, on brief), for appellees.
John D. Bays (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that (1) he
failed to prove that he suffered from disability causally related
to his compensable October 30, 1993 left shoulder injury; and (2)
Dr. William E. Kennedy's April 9, 1996 report did not qualify as
after-discovered evidence. 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. Rule 5A:27.
I.
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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On January 25, 1995, Dr. Richard Kozakiewicz, claimant's
treating physician, opined that "it would be very difficult for
me to state that there is a greater than 50% chance that the pain
in Mr. Bays' left shoulder is related to his October, 1993 work
accident." Dr. Kozakiewicz' opinion, coupled with evidence that
claimant performed substantial work from November 1, 1993 until
at least January 1996, supports the commission's finding that
claimant failed to prove that his disability, if any, was caused
by his compensable accident. Accordingly, we cannot find as a
matter of law that claimant's evidence sustained his burden of
proof.
II.
As the party seeking to reopen the record on the basis of
after-discovered evidence, claimant bore the burden of proving
that "(1) the evidence was obtained after the hearing; (2) it
could not have been obtained prior to hearing through the
exercise of reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and (4) it is material
and should produce an opposite result before the commission."
Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
2
Although Dr. Kozakiewicz reluctantly referred claimant to an
orthopedic surgeon on January 25, 1995, claimant did not seek
treatment from Dr. Kennedy until April 1996, two months after the
February 7, 1996 hearing and approximately one month after the
issuance of the deputy commissioner's decision. No evidence
proved that claimant could not have obtained Dr. Kennedy's report
before the hearing nor did claimant request that the record be
left open for its submission. In addition, Dr. Kennedy's report
would not have necessarily produced a different result. Dr.
Kennedy's opinion conflicted with the opinion of Dr. Kozakiewicz.
As fact finder, the commission was entitled to accept Dr.
Kozakiewicz' opinion and to reject Dr. Kennedy's opinion.
Because Bays did not satisfy the second and fourth prongs of the
test set forth in Williams, we cannot say that the commission
erred in denying his motion to reopen the record.
For these reasons, we affirm the commission's decision.
Affirmed.
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