                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


JAMES RALPH CARTER

v.   Record No. 0891-95-3                      MEMORANDUM OPINION *
                                                   PER CURIAM
PITTSYLVANIA COUNTY SHERIFF'S DEPARTMENT         OCTOBER 3, 1995


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Ronald D. Henderson; Pendleton, Martin, Henderson &
            Garrett, P.C., on brief), for appellant.
            (John P. Grove; Woods, Rogers & Hazlegrove,
            P.L.C., on brief), for appellee.



     James Ralph Carter contends that the Workers' Compensation

Commission erred in denying his motions to reopen the record for

additional testimony of Dr. S.A. Ahmed and for consideration of

Dr. Ahmed's March 10, 1994 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.    Rule 5A:27.
     As the party seeking to reopen the record on the basis of

after-discovered evidence, Carter 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.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883

(1995).

     In denying Carter's motion, the commission found as follows:
               It appears that this report was not part
          of the Commission's file at the Hearing and
          that it was obtained by the claimant after
          the Hearing. However, it also appears, from
          his deposition and testimony at the Hearing,
          that he was aware of the report's existence
          prior to the close of the evidence. We find
          that this report could have been obtained
          prior to the Hearing through the exercise of
          reasonable diligence. Therefore, it does not
          qualify as after-discovered evidence, and we
          will not consider it for the first time on
          Review.

     Credible evidence supports these findings.    At his

deposition, Carter testified that he was aware of Dr. Ahmed's

March 10, 1994 report.   Thus, the commission had a basis to infer

that Carter had an opportunity to obtain the report before the

November 14, 1994 hearing or, at a minimum, to request that the

record be left open for its submission.   He failed to take either

action.   Because Carter did not satisfy the second prong of the
Williams test, the commission did not err in denying his motion

to reopen the record.

     For these reasons, we affirm the commission's decision

denying Carter's motion.    Carter did not appeal the commission's

rulings that the presumption contained in Code § 65.2-402(B) did

not apply and that he failed to prove a compensable ordinary

disease of life under Code § 65.2-401.    Accordingly, the denial

of the award is affirmed.




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    Affirmed.




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