County of Chesterfield v. Arthur L. Scott ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
COUNTY OF CHESTERFIELD
MEMORANDUM OPINION *
v. Record No. 1696-96-2 PER CURIAM
DECEMBER 17, 1996
ARTHUR L. SCOTT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Steven L. Micas, County Attorney; Michael P.
Kozak, Assistant County Attorney, on briefs),
for appellant.
(Laura L. Geller; McDonald & Snesil, P.C., on
brief), for appellee.
County of Chesterfield ("employer") contends that the
Workers' Compensation Commission ("commission") erred in
(1) finding that employer failed to prove that Arthur L. Scott's
("claimant") post-August 2, 1995 disability was not causally
related to his compensable May 16, 1995 injury by accident;
and (2) in denying employer's petition requesting that the
commission consider Dr. David Muron's February 5, 1996 report 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"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
employer's evidence sustained its 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).
In denying employer's change in condition application, the
commission found as follows:
The employer has not met [its] burden.
Dr. Muron diagnosed two conditions, an
avulsion fracture and avascular necrosis and
his reports establish disability after the
accident from these conditions. While
surgery on August 2, 1995 was for the
necrosis, there is nothing in Dr. Muron's
reports that states the injury from the
fracture had healed by the surgery or that
disability after the surgery was caused
exclusively by the claimant's pre-existing
necrosis.
Dr. Muron's statement that the claimant
was disabled from work until the surgery is
ambiguous - it might mean that disability
from the fracture had ended or it might mean
that disability after the surgery was
predominately caused by the necrosis. In
view of this conflict, we cannot say the
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employer has met its burden of proof.
Based upon the lack of any persuasive opinion from Dr. Muron
concerning the cause of claimant's post-August 2, 1995
disability, we cannot say as a matter of law that the commission
erred in finding that the medical evidence was not sufficient to
justify terminating claimant's disability award and that employer
failed to meet its burden of proving that there was no causal
link between claimant's current disability and his work-related
injury. "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).
II.
As the party seeking to reopen the record on the basis of
after-discovered evidence, employer 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).
In denying employer's petition, the commission stated as
follows:
The employer asks us to admit Dr.
Muron's February 5, 1996 office note. This
report does not qualify as after-discovered
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evidence. Dr. Muron's opinion concerning the
necrosis and compensability could have been
obtained before the Deputy Commissioner
closed the record. Moreover, even if it were
admitted and relevant, it would not change
the result. This report supports our finding
that the employer is not responsible for the
necrosis. It does not overcome the failure
of the evidence to establish that the
claimant was no longer disabled from the May
16, 1995 industrial accident.
Credible evidence supports these findings. Claimant had
been treating with Dr. Muron since the time of his industrial
accident. The surgery for claimant's necrosis took place in
August 1995 and the record on employer's change in condition
application was not closed until January 26, 1996. Based upon
this record, the commission could reasonably conclude that
employer had ample opportunity to obtain Dr. Muron's opinion
before the record closed. Moreover, the February 5, 1996 office
notes would not change the result reached by the commission. The
office notes confirmed that claimant's necrosis was not
work-related, but they did not address the issue of whether
claimant's continuing disability was caused in whole, or in
part, by his work-related injury. Because employer did not
satisfy the second and fourth prongs of the Williams test, the
commission did not err in denying employer's petition to receive
after-discovered evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
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