                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Humphreys, Decker and O’Brien
              Argued at Richmond, Virginia


              VICTORIA’S SECRET AND
               GALLAGHER BASSET SERVICES
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0212-17-2                                   JUDGE ROBERT J. HUMPHREYS
                                                                                   JULY 18, 2017
              NICOLE MAULDIN


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Ryan Furgurson (Setliff & Holland, P.C., on briefs), for appellant.

                               Andrew S. Kasmer (Law Offices of Andrew S. Kasmer, on brief),
                               for appellee.


                     Victoria’s Secret and its insurer (collectively, “employer”) appeal the

              January 10, 2017 decision of the Workers’ Compensation Commission (the “commission”)

              affirming the deputy commissioner’s determination that Nicole Mauldin (“Mauldin”) suffered an

              injury that was compensable under the Workers’ Compensation Act (the “Act”). Employer

              contends that the commission erred when it (1) refused to consider after-discovered evidence,

              (2) refused to dismiss the claim due to Mauldin’s concealment of her medical history; (3) found

              that Mauldin suffered a continuing causally related disability; (4) found that Mauldin established

              a treating relationship with one of her physicians; and (5) disregarded the employer’s medical

              expert in favor of Mauldin’s physician. Mauldin assigns cross-error, asking this Court to impose

              sanctions on counsel for employer because there are no reasonable grounds for the after-

              discovered evidence assignment of error.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On January 9, 2016, Mauldin “fell from the top step of [an approximately five-]foot

ladder while restocking lingerie” as an Assistant Manager at Victoria’s Secret. In her claim for

medical benefits, which she filed on January 20, 2016, Mauldin claimed that the fall injured her

“neck, right shoulder, back, right hip, head, [and] right leg.” Among Mauldin’s resulting

physical issues were pain in the lower back and numbness and tingling in the right leg.

       During the discovery process and at the June 2, 2016 evidentiary hearing, employer asked

Mauldin on multiple occasions whether she had previously suffered from injuries or pain similar

to those asserted in her claim for benefits. On each occasion, Mauldin responded that she had

never experienced such injuries or pain, aside from a fall she took in 2010 from which she had

since completely recovered.

       On June 13, 2016, eleven days after the evidentiary hearing before the deputy

commissioner, counsel for employer received medical records from Mauldin’s primary care

provider.1 The records indicated that on December 15, 2015—approximately three weeks before

Mauldin’s work injury—Mauldin sought treatment for “a chief complaint of constant (but worse

at times) back pain of the lower back . . . . It has the following qualities: aching and shooting.

The patient describes the severity as [seven out of ten], with [ten] being the worst imaginable.”

The physical exam that day also indicated “right lower extremity: range of motion reduced[;] . . .

right hip tenderness” and indicated that Mauldin “report[ed] numbness and tingling to right hip

that travels down right leg at times when pain is bad.” Mauldin did not disclose the December

15, 2015 doctor’s visit and accompanying issues to any of her medical providers subsequent to

the January 9, 2016 work accident.


       1
         Because this medical provider is located in Maryland, employer did not use a Virginia
subpoena to acquire the records. Instead, employer obtained authorization from Mauldin and
requested the records from the medical provider on March 25, 2016. Employer then followed-up
on May 6 and June 3, 2016, before receiving the records on June 12, 2016—a Sunday. Thus,
employer did not actually review the records until Monday, June 13, 2016.
                                               -2-
       The deputy commissioner issued his opinion on June 14, 2016, one day after employer

received Mauldin’s undisclosed medical records. Thereafter, employer filed a motion to

reconsider and motion to dismiss Mauldin’s claim based on her failure to disclose the records of

her prior non-workplace injury. The deputy commissioner denied both motions, and employer

requested a full commission review. In its request for review, employer alleged that the

December 15, 2015 medical records constituted after-discovered evidence.

       The commission affirmed the deputy commissioner’s decision and declined to consider

the after-discovered evidence because “[t]his information was available and could have been

obtained prior to the date that the record closed by the exercise of due diligence.”

        “On appeal, this Court views the evidence in the light most favorable to the prevailing

party below.” Van Buren v. Augusta Cty., 66 Va. App. 441, 444, 787 S.E.2d 532, 533 (2016)

(quoting Town & Country Hosp., LP v. Davis, 64 Va. App. 658, 660, 770 S.E.2d 790, 791

(2015)). Here, Mauldin was the prevailing party. “[T]his Court is only bound by the

‘[c]ommission’s findings of fact as long as there was credible evidence presented such that a

reasonable mind could conclude that the fact in issue was proved, even if there is evidence in the

record that would support a contrary finding.’” Newport News Shipbuilding & Dry Dock Co. v.

Wardell Orthopaedics, P.C., 67 Va. App. 404, 412-13, 796 S.E.2d 461, 466 (2017) (quoting

Anderson v. Anderson, 65 Va. App. 354, 361, 778 S.E.2d 132, 136 (2015)). However, “[s]uch

deference to the [c]ommission does not extend to questions of law, which we review de novo.”

Wardell Orthopaedics, P.C., 67 Va. App. at 413, 796 S.E.2d at 466 (quoting Anderson, 65

Va. App. at 36, 778 S.E.2d at 136). When there is “no conflict in the evidence, the question of

the sufficiency thereof is one of law.” Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386,

392, 528 S.E.2d 162, 165 (2000) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140

S.E.2d 655, 657 (1965)); see also Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574

                                                -3-
(2008). Thus, we review whether the commission erred in refusing to consider after-discovered

evidence de novo, because there is no conflict in the evidence as to the facts establishing the

elements of after-discovered evidence. See Hagins, 32 Va. App. at 392, 528 S.E.2d at 165;

Hilton, 275 Va. at 180, 654 S.E.2d at 574.

       Rule 3.3 of the Rules of the Virginia Workers’ Compensation Commission states that a

record may be reopened for the consideration of additional evidence “only when it appears to the

[c]ommission 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.” The requirements for establishing after-discovered

evidence are: “(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) (emphasis in original).

       In Mize v. Rocky Mt. Ready Mix, Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207

(1991), this Court reversed and remanded a case for consideration of after-discovered evidence.

In that case, there were two issues with potential after-discovered evidence. In the first, an

attorney mistakenly omitted particular medical records from the evidence in the case. Id. at 614,

401 S.E.2d at 207. We affirmed the commission’s decision not to reopen the record for those

documents because “[f]ailing to obtain the medical records which were available and known

does not constitute due diligence.” Id. However, there were further medical documents which

represented the claimant’s additional medical treatment, rendered after the evidentiary hearing

but before the commission review, which could have changed the findings as to claimant’s

condition. Id. at 614-15, 401 S.E.2d at 207-08. Regarding these medical documents, we noted,

                                                 -4-
                [W]here, as here, pending the review hearing[,] additional medical
                treatment has occurred which has resulted in a diagnosis being
                made or findings reported which are material to determining the
                nature and character of the claimant’s condition, the extent of
                incapacity, or the etiology of any disability, the commission . . .
                would be remiss in discharging its duty under Code § 65.1-972 by
                failing to reopen and receive and consider such evidence.

Id. at 614, 401 S.E.2d at 207-08. For that reason, we reversed and remanded the case for

consideration of those medical documents, because a failure to do so would result in the

claimant’s claim becoming res judicata if the new medical records indicated the injury was

actually compensable. Id. at 615, 401 S.E.2d at 208.

       In this case, employer submitted a request for review which alleged all the elements

required to establish that the December 15, 2015 medical records constituted after-discovered

evidence. The commission had the power through Rule 3.3 to reopen the record on its own

accord, so long as it was “necessary and advisable” and the elements for after-discovered

evidence could be established. Here, each of these requirements was fulfilled.

       First, the medical records here were obtained after the evidentiary hearing but before the

full commission review, just as the records in Mize. Further, the medical records here were

“material to determining the nature and character of [Mauldin]’s condition,” Mize, 11 Va. App.

at 614, 401 S.E.2d at 208, because they indicated that her conditions may not have been caused

by her workplace injury. Although the records in this case did not constitute medical records

created as a result of new medical examinations, as those in Mize, that distinction is irrelevant

here because the medical records in this case, although requested promptly, were unobtainable

without timely cooperation from the medical office in possession of the records. The

undisclosed medical records in this case were not “available and known” to employer, because

Mauldin specifically denied having had similar issues in the past, and employer had no reason to


       2
           This Code section is now codified at § 65.2-705.
                                                -5-
believe any medical records would show otherwise. Finally, employer’s request for review

specifically alleged all the facts and law necessary to warrant a hearing to establish after-

discovered evidence.

        However, the commission, declined to hold a hearing permitting employer the

opportunity to establish the facts it alleged on the question of whether the medical documents

constituted after-discovered evidence by faulting employer for employee’s medical provider’s

slow handling of the medical records and Mauldin’s apparent concealment of the same. Thus,

since the nature and origin of Mauldin’s injury are central to this case and because employer

made a proper facial showing that it could establish the requirements for after-discovered

evidence, we hold that the commission erred when it failed to reopen the record pursuant to Rule

3.3 and hold an additional hearing to consider whether the December 15, 2015 medical records

constituted after-discovered evidence sufficient to warrant modification of the commission’s

earlier decision.

       Because we agree with employer on its first assignment of error, we need not consider the

additional assignments of error and we deny Mauldin’s request to impose sanctions on employer

for this appeal. For the aforementioned reasons, we reverse and remand the case to the

commission to re-open the record for an evidentiary hearing on employer’s motion to re-consider

the decision of the commission based upon after-discovered evidence.

                                                                            Reversed and remanded.




                                                -6-
