COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
MARY AGNES McCARTHY JOHNSON
MEMORANDUM OPINION*
v. Record No. 0922-03-2 PER CURIAM
AUGUST 26, 2003
REGION TEN COMMUNITY SERVICE AND
FIRE AND CASUALTY COMPANY OF CONNECTICUT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mary Agnes McCarthy Johnson, pro se, on
briefs).
(Lynn McHale Fitzpatrick; Michael D.
Hutchinson; Franklin & Prokopik, P.C., on
brief), for appellees.
Mary Agnes McCarthy Johnson (claimant) contends the
Workers' Compensation Commission erred in (1) finding that she
failed to prove she was entitled to an award of temporary
partial disability benefits beginning May 2000 as a result of
her compensable March 14, 2000 injury by accident; and (2)
refusing to consider, as after-discovered evidence, Dr. Gregory
C. Degnan's July 11, 2000 disability certificate. 1 Upon
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Claimant raised numerous arguments and issues in her
opening brief. However, claimant's entitlement to disability
benefits and the consideration of after-discovered evidence were
the sole issues considered by the commission, and are
dispositive of this appeal. Accordingly, we address only those
issues on appeal.
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
I. Disability
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).
Unless we can say as a matter of law that claimant's evidence
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application for an award of temporary
partial disability benefits commencing in May 2000, the
commission found as follows:
There is no evidence of record that the
claimant was disabled from work. There is
no mention of disability in the [hospital
emergency room's] March 14, 2000, medical
report. On March 24, 2000, Dr. Thomas E.
Brown, [an orthopedic surgeon,] specifically
stated that the claimant was able to work
with a wrist splint. On May 2, 2000, he
noted that she was about 90 percent
improved. The only mention of disability is
found in Dr. [Davis S.] Witmer's August 15,
2000, report, in which he states that the
claimant's injury "reasonably would have
caused a decrease in ability to perform her
full activities for a period of weeks,
perhaps even 2 to 3 months." However, this
statement directly contradicts the
statements of her treating physicians who
actually examined her during this period.
Therefore, we find that the evidence does
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not support the claimant's claim for
disability benefits.
"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). The commission weighed the medical
evidence, and determined that it was not sufficient to prove
claimant sustained disability related to her compensable injury
by accident. As fact finder, the commission was entitled to
give little probative weight to Dr. Witmer's opinion, in light
of contrary opinions of claimant's treating physicians, who
contemporaneous with their examinations, did not opine that
claimant was disabled from work as a result of her compensable
injury by accident. "Questions raised by conflicting medical
opinions must be decided by the commission." Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that claimant's evidence sustained her burden of proof.
II. After-Discovered Evidence
Claimant contends the commission erred in refusing to
consider Dr. Degnan's July 11, 2000 disability certificate, as
after-discovered evidence. The hearing on claimant's
application took place on June 21, 2002. The deputy
commissioner issued his opinion on July 3, 2002. Claimant filed
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a request for review on July 25, 2002. The commission's file
contained one copy of Dr. Degnan's disability certificate, which
was date-stamped as received by the commission on July 26, 2002,
the same date-stamp that is affixed to claimant's request for
review.
Commission Rule 3.3 provides:
No new evidence may be introduced by a
party at the time of review except upon
agreement of the parties. A petition to
reopen or receive after-discovered evidence
may be considered only upon request for
review.
A petition to reopen the record for
additional evidence will be favorably acted
upon by the full Commission only when it
appears to the Commission that such course
is absolutely necessary and advisable and
also when the party requesting the same is
able to conform to the rules prevailing in
the courts of this State for the
introduction of after-discovered evidence.
Therefore, the party seeking to re-open the record to submit
after-discovered evidence must prove that "(1) the evidence was
obtained after the hearing; (2) it could not have been obtained
prior to the 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).
The evidence submitted by claimant did not meet the second
prong of the requirements for admitting after-discovered
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evidence. The evidence existed long before the hearing date,
and could have been obtained prior to the hearing through the
exercise of due diligence. Thus, it could have been submitted
to the commission before the hearing for its consideration.
Accordingly, the commission did not err in refusing to consider
such evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
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