Margaret J. Mullins v. Clinchfield Coal Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARGARET J. MULLINS
MEMORANDUM OPINION *
v. Record No. 1700-96-3 PER CURIAM
JANUARY 14, 1997
CLINCHFIELD COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Daniel H. Sachs, on brief), for appellant.
(H. Ashby Dickerson; Penn, Stuart & Eskridge,
on brief), for appellee.
Margaret J. Mullins ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in denying her
motion that the commission reopen the record to allow the
pulmonary committee to consider the original of a June 16, 1995
x-ray as after-discovered evidence. Claimant argues that by not
allowing her to submit the original x-ray, the commission
violated the "best evidence rule." 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.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 affirming the deputy commissioner's denial of claimant's
motion, the commission stated as follows:
[W]e find it significant that the claimant,
intentionally or unintentionally, initially
predicated her claim upon a film copy, rather
than an original. Assuming for the sake of
argument that she did not know that at first,
she either knew or should have known
otherwise on or about October 4, 1995, when
she was provided the defendant's x-ray
interpretations, two of which included
negative comments about the film's quality,
and one which specifically indicated that the
film was a copy. Even though at least
potentially armed with that knowledge,
claimant's counsel neither obtained the
original film before the hearing nor made a
motion during that proceeding for its
posthearing submission or consideration.
Because of that failure, and because the time
limit for filing posthearing evidence is
within the hearing Commissioner's discretion,
the Deputy Commissioner had every right to
deny counsel's subsequent motion.
Credible evidence supports the commission's findings. Based
upon these findings, the commission could conclude that claimant
had an opportunity to obtain the original x-ray before the
November 15, 1995 hearing, but failed to do so. Because claimant
did not satisfy the second prong of the Williams test, the
commission did not err in denying her motion to reopen the record
for after-discovered evidence.
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We also find no merit in claimant's "best evidence rule"
argument. Clearly, if the "best evidence rule" applied in this
case, the only party who could have invoked the rule with respect
to the x-ray film's quality would have been the employer, not
claimant.
For these reasons, we affirm the commission's decision.
Affirmed.
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