                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


MILDRED F. GRAVELY

v.          Record Nos. 1784-95-3         MEMORANDUM OPINION * BY
                    and 0992-95-3          JUDGE LARRY G. ELDER
                                               MAY 7, 1996
RAPPAHANNOCK GENERAL HOSPITAL


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Lawrence L. Moise, III (Vinyard and Moise,
            P.C., on briefs), for appellant.

            Linda M. Ziegler (Karen A. Gould; Crews &
            Hancock, P.L.C., on briefs), for appellee.



     In two separate yet inter-related appeals, Mildred Gravely

(claimant) appeals from the Workers' Compensation Commission's

(commission) denial of her claim for a change in condition and

refusal to reopen the record to allow after-discovered evidence.

 Claimant contends that the commission erred (1) in determining

that she did not establish a change in condition and (2) in

refusing to reopen the record to consider after-discovered

evidence.   Because the commission did not err in either case, we

affirm its decisions.

                                    I.

                                FACTS

     Claimant sustained a work-related injury by accident while

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
working for the Rappahannock General Hospital (employer) on

January 27, 1992.    On December 28, 1992, claimant filed a claim

for benefits alleging an injury by accident.     While claimant

received temporary total and temporary partial benefits for

certain periods of disability, the parties agreed that claimant

was physically able to return to her pre-injury employment as of

February 15, 1993.   Because claimant returned to full-duty work

on February 15, 1993, yet requested disability benefits from that

date forward, the deputy commissioner treated claimant's December

28, 1992 claim as one for a change in condition.     Based on

various medical records from different treating physicians, the

deputy commissioner found on October 15, 1993, that claimant

failed to establish a causal connection between her present

condition and the original accident and denied benefits for any

period after February 15, 1993.
     During claimant's appeal to the full commission, Dr. Adnan

Silk performed an MRI on claimant.      The results, which were

described in a February 22, 1994 report, revealed that claimant

suffered from degenerative disc disease, scarring, and midline

recurrent disc herniation at L5-S1.     A March 16, 1994 letter from

Dr. Silk revealed that claimant continued to suffer from pain and

showed scarring and bulging at L5-S1.     Claimant did not attempt

to introduce these records to the full commission before it

decided the appeal from the deputy commissioner.

     On May 9, 1994, the commission affirmed the deputy




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commissioner's opinion.   After the commission's decision,

claimant continued to receive medical documents from Dr. Silk.

In a letter dated May 23, 1994, Dr. Silk stated that claimant had

been disabled since her original workplace injury and continued

to be disabled.   An April 3, 1995 report from Dr. Silk stated

that claimant's current problem "was probably related" to the

original workplace injury.

     On appeal, claimant asked the Court of Appeals to remand the

case to the commission so that it could consider the after-

discovered evidence obtained from Dr. Silk.   On December 6, 1994,

the Court of Appeals rejected claimant's request, affirmed the

commission's decision, and held that claimant failed to prove

causality.   The Court also held that it could not consider

additional medical evidence which had not been before the

commission, as "claimant failed to make a motion on review to the

full commission requesting that it consider after-discovered

evidence."
     On December 20, 1994, two weeks after this Court's opinion,

claimant again filed a claim for benefits based on a change in

condition.   On February 2, 1995, claimant also filed a petition

to reopen the record to allow after-discovered evidence.     The

application and the petition are the subject of these appeals.

On April 7, 1995, the commission denied claimant's petition to

reopen the record to submit the evidence, stating that, "[t]he

evidence that the claimant wishes the Commission to consider as a




                                -3-
'mistake' is the same after-discovered evidence that the Court of

Appeals had before it and determined was not part of the record

of the case."   Claimant appeals this decision to this Court.

     On April 12, 1995, an assistant claims examiner rejected

claimant's claim for benefits alleging a change in condition,

stating that the claim was barred by the commission's April 7,

1995 decision and that the commission was foreclosed from

considering any evidence from Dr. Silk.   On July 18, 1995, the

commission affirmed the assistant claims examiner's rejection of

claimant's application.   Claimant also appeals this decision to

this Court.
                                II.

                     AFTER-DISCOVERED EVIDENCE

     Rule 1.6(D) of the Rules of the Workers' Compensation

Commission states that, "[o]nly information contained in the file

at the time of the original decision along with the review

request and any response from the opposing party will be

considered.   Additional evidence will not be accepted."

     Rule 3.3 (former Rule 2(C)) provides an exception to Rule

1.6(D):

               No new evidence may be introduced by a
          party at the time of review [from the deputy
          commissioner's decision] except on agreement
          of the parties. A petition to reopen or
          receive after-discovered evidence may be
          considered only upon request for review.
               A petition to reopen the record for
          additional evidence will be favorably acted
          upon by the full Commission only when it
          appears to the Commission that such course is



                                -4-
             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.


This Court reiterated the rules for reviewing petitions to reopen

the record to receive after-discovered evidence in Williams v.

People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883

(1995).     See Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App.

327, 328-29, 338 S.E.2d 352, 353 (1986).
     In this case, claimant did not file a motion to consider the

after-discovered evidence, namely, Dr. Silk's first two medical

reports, before the full commission rendered its May 9, 1994

decision.    As this Court held in its December 6, 1994 memorandum

opinion, "[t]he February 22, 1994 MRI results were available to

claimant pending review of the deputy commissioner's decision by

the full commission."    Because claimant failed to file the

appropriate motion, "the full commission did not have the

opportunity to consider this issue, [and] we will not consider it

on appeal."    The same reasoning guides our holding in this case.

 To allow claimant to frustrate Rule 3.3 would be to thwart the

"finality of the decision making process."        Charcoal Hearth, 1

Va. App. at 329, 338 S.E.2d at 353.

     We recognize that two reports from Dr. Silk, dated May 23,

1994, and April 3, 1995, were obtained after the full

commission's original decision on May 9, 1994.       However, as this

Court noted in its December 6, 1994 memorandum opinion, Dr.



                                  -5-
Silk's medical opinions, as contained in these letters, were

available before the full commission's decision.    Failure to

obtain medical records that were available does not constitute

due diligence.    Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App.

601, 614, 401 S.E.2d 200, 207 (1991).    Claimant cannot prove that

she could not have obtained Dr. Silk's medical reports prior to

the full commission's decision through the exercise of due

diligence.   Furthermore, this record does not disclose the

occurrence of the type of mistake contemplated in Harris v.
Diamond Constr. Co., 184 Va. 711, 36 S.E.2d 573 (1946).

     We do not hold that the commission is forever barred from

considering the evidence obtained from Dr. Silk if appropriate

and consistent with the commission's rules in addressing future

applications.    However, for reasons described below, Dr. Silk's

evidence could not be used to support claimant's December 20,

1994 change in condition application, now before us on appeal.

                                III.

                         CHANGE IN CONDITION

     We also hold that the commission did not err in determining

that claimant failed to establish a change in condition.

Claimant attempted to introduce additional medical evidence from

Dr. Silk to refute the opinions of her original treating

physicians that her post-February 15, 1993 complaints were

unrelated to her workplace injury.     We are reminded, however,

that "'[a] final judgment based on a determination by the



                                 -6-
commission on the issue of causation conclusively resolves the

claim as to that particular injury.   Thereafter, after fraud or

mistake, the doctrine of res judicata bars further litigation on

that claim.'"   Mize, 11 Va. App. at 604, 401 S.E.2d at 202

(quoting AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d

879, 881 (1990)).   Here, claimant conceded that her condition did

not change since this Court's December 6, 1994 decision.

     Based on the foregoing, we affirm the commission's

decisions.
                                                           Affirmed.




                                -7-
BENTON, J., dissenting.


     In rejecting Mildred Gravely's application to re-open the

record to consider the report of Dr. Silk, the commission ruled

that this Court's decision in Gravely v. Rappahannock General

Hospital, Record No. 0974-94-3 (Memorandum op., December 6,

1994), barred it from considering that evidence.   It did not.

This Court stated that the evidence would not be considered on

appeal "since the full commission did not have the opportunity to

consider this issue."   That ruling did not preclude Gravely from

asking the commission to consider the evidence and did not

preclude the commission from determining whether under its rules

the evidence could now be timely offered.   The commission simply

misread this Court's opinion.   Therefore, I would reverse the

commission's decision and remand for reconsideration.




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