                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


COUNTY OF CHESTERFIELD
                                              MEMORANDUM OPINION *
v.   Record No. 1696-96-2                         PER CURIAM
                                               DECEMBER 17, 1996
ARTHUR L. SCOTT


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Steven L. Micas, County Attorney; Michael P.
            Kozak, Assistant County Attorney, on briefs),
            for appellant.
            (Laura L. Geller; McDonald & Snesil, P.C., on
            brief), for appellee.



     County of Chesterfield ("employer") contends that the

Workers' Compensation Commission ("commission") erred in

(1) finding that employer failed to prove that Arthur L. Scott's

("claimant") post-August 2, 1995 disability was not causally

related to his compensable May 16, 1995 injury by accident;

and (2) in denying employer's petition requesting that the

commission consider Dr. David Muron's February 5, 1996 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.

                                 I.

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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the party prevailing below.    R.G. Moore Bldg. Corp. v.

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

"General principles of workman's compensation law provide that

'[i]n an application for review of any award on the ground of

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"    Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,

572 (1986)).   Unless we can say as a matter of law that

employer's evidence sustained its burden of proof, the

commission's findings are binding and conclusive upon us.     Tomko

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

     In denying employer's change in condition application, the

commission found as follows:
               The employer has not met [its] burden.
          Dr. Muron diagnosed two conditions, an
          avulsion fracture and avascular necrosis and
          his reports establish disability after the
          accident from these conditions. While
          surgery on August 2, 1995 was for the
          necrosis, there is nothing in Dr. Muron's
          reports that states the injury from the
          fracture had healed by the surgery or that
          disability after the surgery was caused
          exclusively by the claimant's pre-existing
          necrosis.
               Dr. Muron's statement that the claimant
          was disabled from work until the surgery is
          ambiguous - it might mean that disability
          from the fracture had ended or it might mean
          that disability after the surgery was
          predominately caused by the necrosis. In
          view of this conflict, we cannot say the


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            employer has met its burden of proof.


     Based upon the lack of any persuasive opinion from Dr. Muron

concerning the cause of claimant's post-August 2, 1995

disability, we cannot say as a matter of law that the commission

erred in finding that the medical evidence was not sufficient to

justify terminating claimant's disability award and that employer

failed to meet its burden of proving that there was no causal

link between claimant's current disability and his work-related

injury.    "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).

                                 II.

     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 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).

     In denying employer's petition, the commission stated as

follows:
                 The employer asks us to admit Dr.
            Muron's February 5, 1996 office note. This
            report does not qualify as after-discovered



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            evidence. Dr. Muron's opinion concerning the
            necrosis and compensability could have been
            obtained before the Deputy Commissioner
            closed the record. Moreover, even if it were
            admitted and relevant, it would not change
            the result. This report supports our finding
            that the employer is not responsible for the
            necrosis. It does not overcome the failure
            of the evidence to establish that the
            claimant was no longer disabled from the May
            16, 1995 industrial accident.


     Credible evidence supports these findings.     Claimant had

been treating with Dr. Muron since the time of his industrial

accident.   The surgery for claimant's necrosis took place in

August 1995 and the record on employer's change in condition

application was not closed until January 26, 1996.    Based upon

this record, the commission could reasonably conclude that

employer had ample opportunity to obtain Dr. Muron's opinion

before the record closed.    Moreover, the February 5, 1996 office

notes would not change the result reached by the commission.       The

office notes confirmed that claimant's necrosis was not
work-related, but they did not address the issue of whether

claimant's continuing disability was caused in whole, or in

part, by his work-related injury.     Because employer did not

satisfy the second and fourth prongs of the Williams test, the

commission did not err in denying employer's petition to receive

after-discovered evidence.

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

                                                Affirmed.




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