                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


SKIP'S AUTO PARTS/ADP TOTALSOURCE AND
 RELIANCE INSURANCE COMPANY IN LIQUIDATION
                                             MEMORANDUM OPINION*
v.   Record No. 0846-02-2                         PER CURIAM
                                              SEPTEMBER 24, 2002
ELISHA DAVID RICE


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (S. Vernon Priddy III; Jeffery W. Saunders;
             Sands Anderson Marks & Miller, on brief), for
             appellants.

             (Gregory O. Harbison; Geoffrey R. McDonald &
             Associates, on brief), for appellee.


     Skip's Auto Parts/ADP TotalSource and its insurer

(hereinafter referred to as "employer") contend the Workers'

Compensation Commission erred in (1) refusing to reopen the

record and consider additional medical evidence submitted by

employer after the hearing and after the deputy commissioner

issued his opinion; and (2) finding that Elisha David Rice

(claimant) proved that he was partially disabled after February

12, 2001, as a result of his compensable left carpal tunnel

syndrome.     Upon reviewing the record and briefs of the parties,

we conclude that this appeal is without merit.      Accordingly, we

summarily affirm the commission's decision.     Rule 5A:27.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                 I.    Additional Medical Evidence

     At the April 25, 2001 hearing, Deputy Commissioner Tabb

left the record open through May 18, 2001, for the purpose of

taking the depositions of Dr. Kostas J. Constantine and/or

Dr. Ralph E. Hagan.   The parties did not submit any depositions

to the commission by that date.   On May 10, 2001, employer

requested that the commission consider an April 27, 2001 letter

report by Dr. Constantine to Dr. Peter VanDerMeid.

     On June 11, 2001, the deputy commissioner issued his

decision finding that claimant proved he suffered from left

carpal tunnel syndrome causally related to his employment and

awarding him temporary total disability benefits from October 9,

2000 through February 13, 2001 and temporary partial disability

benefits beginning February 14, 2001 and continuing.

     On June 20, 2001, employer filed a motion to vacate and

reopen the record.    In that motion, employer requested that the

deputy commissioner reopen the record and consider the April 12,

2001 and May 21, 2001 office notes of Dr. Robert G. Squillante,

a May 10, 2001 operative report, and the April 27, 2001 letter

from Dr. Constantine to Dr. VanDerMeid.

     On June 28, 2001, the deputy commissioner declined to

reconsider or vacate his opinion.     On review, the commission

ruled that the additional medical evidence in question was "not

of such a character as on re-Hearing [might] produce a different


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result on the merits."   In so ruling, the commission found as

follows:

            Although the notes suggest ongoing symptoms
            including symptoms similar to carpal tunnel
            syndrome, no physician of record disputes
            the prior carpal tunnel syndrome diagnosis.
            Even Dr. Constantine, who now suggests that
            the claimant's current symptoms may be
            attributable to cervical stenosis, did not
            rescind his previous diagnosis. Thus, all
            four records fail to meet the requirements
            of Rule 3.3 and the Commission declines to
            consider them.

     Rule 3.3 of the Rules of the Workers' Compensation

Commission allows for consideration of after-discovered evidence

by the full commission either by agreement of the parties or

upon a petition to reopen or receive after-discovered evidence.

No evidence showed that the parties agreed to the submission of

the additional medical records presented by employer.

                     April 12, 2001 Office Notes

     Dr. Squillante's April 12, 2001 office notes existed prior

to the hearing and, therefore, employer was required to prove

that those notes met the requirements for after-discovered

evidence.   As the party seeking to reopen the record on the

basis of after-discovered evidence, employer bore the burden of

proving that

            (1) the evidence was obtained after the
            hearing; (2) it could not have been obtained
            prior to the 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.
                              - 3 -
Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452

S.E.2d 881, 883 (1995).

     No evidence showed that Dr. Squillante's April 12, 2001

office notes could not have been obtained prior to the hearing

through the exercise of reasonable diligence.   Furthermore,

nothing showed, that if considered, the notes would produce an

opposite result.   Dr. Squillante opined that claimant suffered

from cervical stenosis with left upper extremity numbness and

weakness.   However, nothing contained in Dr. Squillante's April

12, 2001 office notes contradicted Dr. Constantine's

pre-existing opinion that claimant suffered from left carpal

tunnel syndrome causally related to his employment, which

resulted in disability.   Accordingly, because employer did not

satisfy the second and fourth prongs of the Williams test with

respect to the April 12, 2001 office notes, the commission did

not err in refusing to reopen the record to consider those notes

as after-discovered evidence.

      April 27, 2001 Letter, May 10, 2001 Operative Report,
                  and May 21, 2001 Office Notes

     The April 27, 2001, May 10, 2001, and May 21, 2001

additional medical records did not address the issues before the

commission concerning the compensability and causation of

claimant's left carpal tunnel syndrome and his disability status

with respect to those conditions as of the hearing date.

Nothing in those additional reports contradicted

                             - 4 -
Dr. Constantine's previous carpal tunnel diagnosis and opinion

that claimant's left carpal tunnel syndrome was directly related

to his employment.   Thus, those medical reports would not have

produced a different result.

     Furthermore, as the commission correctly noted, if employer

contends that these additional medical records, which were

created after the hearing in this case, in some way indicate

another cause for claimant's ongoing current disability,

employer's proper course of action is to file a

change-in-condition application with the commission.      Contrary

to employer's assertions, the holding in Mize v. Rocky Mount

Ready Mix, 11 Va. App. 601, 401 S.E.2d 200 (1991), is not

applicable to this case.   Unlike the situation in Mize, under

the procedural posture of this case, the doctrine of res

judicata would not prevent employer from filing a

change-in-condition application at any point after February 14,

2001, with appropriate documentation, and proving that

claimant's ongoing disability was caused by a condition other

than his left carpal tunnel syndrome.

                           II.     Disability

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.       R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal


                                 - 5 -
if supported by credible evidence.   See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

      In awarding claimant disability benefits, the commission

found as follows:

          On October 11, 2000, the claimant underwent
          both left carpal tunnel and cubital tunnel
          releases. On October 23, 2000, he was
          restricted from using his arm in any type of
          employment for an additional four weeks. On
          November 11, 2001, [sic] Dr. Constantine
          recommended that the claimant remain out of
          work during his physical therapy in
          November. On December 15, 2000,
          Dr. Constantine recommended that the
          claimant "continue therapy, work on
          strengthening, keep him on light duty with
          no use of the left upper extremity until I
          see him back in one month."

               In a December 26, 2000, physical
          capacities evaluation, signed by
          Dr. Constantine, it is noted that the
          claimant should have "zero" work until
          January 15, 2001. On January 4, 2001,
          Dr. Constantine extended the claimant's
          restrictions through January 29, 2001, and
          later advised that he should have no use of
          the left hand for another four weeks past
          January 29, 2001. The claimant returned to
          work on February 14, 2001.

     Based upon these factual findings, the commission affirmed

the deputy commissioner's findings that claimant proved he was

totally disabled from October 9, 2001 through February 13, 2001

and partially disabled beginning February 14, 2001 and

continuing.

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

                            - 6 -
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   Dr. Constantine's uncontradicted

medical records and opinions constitute credible evidence from

which the commission, as fact finder, could reasonably infer

that claimant remained partially disabled after February 12,

2001, as a result of his compensable left carpal tunnel

syndrome.   "Where reasonable inferences may be drawn from the

evidence in support of the commission's factual findings, they

will not be disturbed by this Court on appeal."   Hawks v.

Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,

698 (1988).   Moreover, "[i]n determining whether credible

evidence exists, the appellate court does not retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses."   Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).   Accordingly, we are bound by the commission's factual

findings and will not disturb them on appeal.

     For these reasons, we affirm the commission's decision.

                                                          Affirmed.




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