Robert Dale Burroughs v. Frederick Co. School Bd,et

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ROBERT DALE BURROUGHS
MEMORANDUM OPINION*
v. Record No. 0792-00-4 PER CURIAM
AUGUST 15, 2000
FREDERICK COUNTY SCHOOL BOARD AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James F. Green; Ashcraft & Gerel, L.L.P., on
brief), for appellant.
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Williams, Lynch & Whitt, P.C., on brief), for
appellees.
Robert Dale Burroughs (claimant) contends that the Workers'
Compensation Commission erred in refusing to reopen the record
for consideration of Dr. Benjamin V. Rezba's September 10, 1999
medical 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. See 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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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) (emphasis omitted).
The commission held that claimant failed to meet his burden
of proof with respect to prongs (2) through (4) of the Williams
test. In so ruling, the commission found as follows:
[C]laimant knew of Dr. Rezba's involvement
and his plan to order testing, before the
hearing record closed on June 24, 1999. In
the deposition for which the hearing record
was held open, Dr. [Richard] Patterson
testified that Dr. Rezba had ordered a MRI
scan. The claimant did not ask that the
record be held open for the report of that
test.
[T]he information in the report is
cumulative and corroborative and would not
produce a different result if considered.
Dr. Rezba's report contains a thorough
review of the claimant's medical history,
the results of the test and Dr. Rezba's
diagnosis. All the information in Dr.
Rezba's medical history was identified in
earlier reports that were before the Deputy
Commissioner.
* * * * * * *
Although the report refers to the test
Dr. Rezba ordered, the test identified
information previously known and part of the
record. The claimant's disc problems were
identified by Dr. Patterson on September 11,
1996, and November 20, 1996. Spinal
stenosis was first noted by Dr. Patterson on
March 12, 1997, and the claimant's chronic
- 2 -
back pain was well documented in the record,
beginning with his earlier May 25, 1996,
accident.
Dr. Rezba's opinions that the claimant
was a surgical candidate and will cause
chronic back problems are immaterial to the
issue of the case, whether the claimant had
a new injury by accident. Thus the
information is cumulative, corroborative and
collateral . . . .
Lastly, consideration of Dr. Rezba's
report would not produce an opposite result.
. . . Our [previous] decision primarily was
based on the facts that while the claimant's
back symptoms increased after the incident,
there was no increased damage nor were there
any structural or mechanical changes to his
low back. Dr. Rezba's report does not
contradict any of those findings.
Credible medical evidence supports the commission's
findings. Based upon those findings, the commission was
entitled to conclude that Dr. Rezba's report was cumulative,
corroborative, and collateral and would not have produced a
different result, if considered. Dr. Rezba's report detailed
medical information previously available to the commission when
it rendered its decision. In addition, Dr. Rezba's report
contained no evidence to prove that a structural or mechanical
change occurred in claimant's back as a result of his September
24, 1998 accident. Thus, the commission could reasonably
conclude that the report would not alter the outcome of the
case.
- 3 -
Because claimant did not satisfy prongs (3) and (4) of the
Williams test, the commission did not err in denying his motion
to reopen the record for after-discovered evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
- 4 -