                     COURT OF APPEALS OF VIRGINIA

Present:   Judges Bray, Annunziata and Overton


CONNIE P. MITCHELL
                                                  MEMORANDUM OPINION *
v.   Record No. 0429-98-2                             PER CURIAM
                                                    AUGUST 25, 1998
CITY OF RICHMOND NURSING HOME


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Connie P. Mitchell, pro se, on briefs).

           (Andrew R. Blair, on brief), for appellee.


     Connie P. Mitchell (claimant) contends that the Workers'

Compensation Commission (commission) erred in (1) refusing to

consider the August 20, 1997 post-hearing report of Dr. Howard G.

Stern, an orthopedic surgeon, as after-discovered evidence; and

(2) finding that she failed to prove that her left knee condition

is causally related to her December 8, 1992 injury by accident.

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.

                      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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 refusing to consider Dr. Stern's August 20, 1997 report

on review, the commission found as follows:
          We find that this report could have been
          obtained prior to the Hearing through the
          exercise of reasonable diligence. Therefore,
          this report will not be considered for the
          first time on Review. The exception
          enunciated in Mize v. Rocky Mount Ready Mix,
          11 Va. App. 601, 401 S.E.2d 200 (1991), does
          not apply since there does not appear to be
          subsequent treatment pending Review resulting
          in a change in opinion by a physician
          regarding disability. Dr. Stern simply
          offered his opinion which could have been
          obtained prior to the Hearing through the
          exercise of reasonable diligence.


     Credible evidence supports the commission's findings.    Based

upon these findings, the commission could conclude that claimant

had an opportunity to obtain Dr. Stern's report before the June

9, 1997 hearing, but failed to do so.    Because claimant did not

satisfy the second prong of the Williams test, the commission did
not err in refusing to consider Dr. Stern's report on review as

after-discovered evidence.

                             Causation

     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).

     In holding that claimant failed to prove that the proposed



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total knee replacement surgery was causally related to her

December 1992 injury by accident, the commission found as

follows:
           We note that claimant has, in the past,
           alleged that this surgery is causally related
           to the January 1993 work injury. However,
           there is no Commission ruling on that issue.
            The record before us consists of medical
           reports documenting treatment for both
           injuries. It is clear that the claimant
           suffers from end-stage osteoarthritis of the
           left knee. However, there is no medical
           opinion before us causally connecting the
           December 1992 industrial injury to that
           condition. While it appears that Mitchell
           sustained a left knee injury in that
           industrial accident, her symptoms essentially
           resolved within one week. No further mention
           of continuing left knee pain is made in the
           record before us. Indeed, the next report of
           left knee pain is on April 24, 1996, more
           than three years after the work injury. Dr.
           Stern, while diagnosing end-stage
           osteoarthritis of the left knee, does not
           offer an opinion on the issue of causation.
                The absence of intervening treatment
           after initial resolution of the left knee
           complaints, coupled with the absence of a
           fully informed medical opinion on the issue
           of causation, we find that the claimant has
           not met her burden.


     The commission's findings are amply supported by the record.

Based upon the lack of medical treatment to claimant's left knee

between December 1992 and April 1996 and the lack of any

persuasive medical opinion regarding the cause of her knee

condition, we cannot say as a matter of law that claimant's

evidence sustained her burden of proof.   Accordingly, 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



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833, 835 (1970).

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

                                                       Affirmed.




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