COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
GARY L. FRYE
MEMORANDUM OPINION*
v. Record No. 2758-98-3 PER CURIAM
MAY 4, 1999
VALLEY HAULING, INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lawrence L. Moise, III; Vinyard & Moise, on
brief), for appellant.
(Monica L. Taylor; Gentry, Locke, Rakes &
Moore, on brief), for appellees.
Gary L. Frye ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in (1) finding that
he failed to prove a permanent partial disability in his left eye
as a result of his compensable July 30, 1994 injury by accident;
and (2) in failing to consider Dr. John M. Dixon's February 24,
1998 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.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See 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
his 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 permanent
partial disability benefits, the commission found as follows:
On the issue of causation, Dr. Dixon
has stated his belief that claimant's defect
in his vision is related to retinal scarring
which most likely is directly due to the
accident. Nevertheless, Drs. [Brian P.]
Conway, [Robert C.] Erickson, and [John L.]
Hines do not express this conclusion. These
doctors have expressed difficulty in finding
any permanent impairment or the presence of
a permanent visual field defect. . . .
In this case, there is a wide and
irreconcilable difference of opinion between
the doctors involved in assessing the
claimant. Given this record of differing
expert opinions, we accord no greater weight
to the opinion of the treating physician
than we do the opinions of the other
doctors.
The commission's findings are supported by the record. In
light of the irreconcilable conflicts in the medical evidence,
the commission, as fact finder, was entitled to conclude that
"[u]pon review of the record of [sic] a whole, we find that the
claimant has not proven by a preponderance of the evidence that
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he has a partial loss of vision or that he has reached maximum
medical improvement." "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).
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proof.
Accordingly, the commission's findings are binding and
conclusive upon us on appeal.
II.
The commission did not consider Dr. Dixon's February 24,
1998 medical report as after-discovered evidence. 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).
It is apparent from the record that Dr. Dixon's February
24, 1998 report could have been obtained by claimant through the
exercise of due diligence prior to the hearing, or at the very
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least, a request could have been made to leave the record open
to obtain the report. No evidence showed that claimant was
precluded from obtaining Dr. Dixon's opinion or that Dr. Dixon
was unavailable. Instead, claimant waited until seven months
after the hearing and seven months after the deputy commissioner
issued his opinion to obtain the report. Under these
circumstances, the commission did not err in failing to consider
such evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
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