Connie P. Mitchell v City of Richmond Nursing Home

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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CONNIE P. MITCHELL
MEMORANDUM OPINION
Vv. Record No. 0429-98-2 PER CURIAM
AUGUST 25, 1998
CITY OF RICHMOND NURSING HOME
FROM THE VIRGINIA WORKERS' COMPENSATION COMMTISSTON

(Connie P. Mitchell, pro se, on briefs).

(Andrew R. Blair, on brief), for appellee.

Connie P. Mitchell (claimant) contends that the Workers'
Compensation Commission (commission) erred in (1) refusing to
consider the August 20, 1997 post-hearing report of Dr. Howard G.
Stern, an orthopedic surgeon, as after-discovered evidence; and
(2) finding that she failed to prove that her left knee condition
is causally related to her December 8, 1992 injury by accident.
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. ee Rule 5A:27.

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

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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 refusing to consider Dr. Stern's August 20, 1997 report
on review, the commission found as follows:
We find that this report could have been
obtained prior to the Hearing through the
exercise of reasonable diligence. 	Therefore,
this report will not be considered for the
first time on Review. 	The exception
enunciated in Mize v. Rocky Mount Ready Mix,
11 Va. App. 601, 401 S.E.2d 200 (1991), does
not apply since there does not appear to be
subsequent treatment pending Review resulting
in a change in opinion by a physician
regarding disability. 	Dr. Stern simply
offered his opinion which could have been
obtained prior to the Hearing through the
exercise of reasonable diligence.
Credible evidence supports the commission's findings. 	Based
upon these findings, the commission could conclude that claimant
had an opportunity to obtain Dr. Stern's report before the June
9, 1997 hearing, but failed to do so. 	Because claimant did not
satisfy the second prong of the Williams test, the commission did
not err in refusing to consider Dr. Stern's report on review as
after-discovered evidence.
Causation
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).
In holding that claimant failed to prove that the proposed

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total knee replacement surgery was causally related to her
December 1992 injury by accident, the commission found as
follows: We note that claimant has, in the past,
alleged that this surgery is causally related
to the January 1993 work injury. 	However,
there is no Commission ruling on that issue.
The record before us consists of medical
reports documenting treatment for both
injuries. 	It is clear that the claimant
suffers from end-stage osteoarthritis of the
left knee. 	However, there is no medical
opinion before us causally connecting the
December 1992 industrial injury to that
condition. 	While it appears that Mitchell
sustained a left knee injury in that
industrial accident, her symptoms essentially
resolved within one week. 	No further mention
of continuing left knee pain is made in the
record before us. 	Indeed, the next report of
left knee pain is on April 24, 1996, more
than three years after the work injury. 	Dr.
Stern, while diagnosing end-stage
osteoarthritis of the left knee, does not
offer an opinion on the issue of causation.
The absence of intervening treatment
after initial resolution of the left knee
complaints, coupled with the absence of a
fully informed medical opinion on the issue
of causation, we find that the claimant has
not met her burden.
The commission's findings are amply supported by the record.
Based upon the lack of medical treatment to claimant's left knee
between December 1992 and April 1996 and the lack of any
persuasive medical opinion regarding the cause of her knee
condition, we cannot say as a matter of law that claimant's
evidence sustained her burden of proof. 	Accordingly, 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).
For these reasons, we affirm the commission's decision.

Affirmed.