                     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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