                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


ROY TRAVIS BLANKENSHIP
                                             MEMORANDUM OPINION*
v.   Record No. 0249-02-3                         PER CURIAM
                                                 JULY 2, 2002
CSI/ARCHSTONE COMMUNITIES TRUST AND
 ZURICH AMERICAN INSURANCE COMPANY
 OF ILLINOIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Roy Travis Blankenship, pro se, on briefs).

             (Linda D. Frith; E. Albion Armfield; Frith,
             Anderson & Peake, P.C., on brief), for
             appellees.


     Roy Travis Blankenship (claimant) contends the Workers'

Compensation Commission erred in (1) finding he failed to prove

his low back condition and headaches were causally related to

his compensable April 6, 2000 injury by accident; and

(2) refusing to consider additional evidence filed with

claimant's "Request for Review," as after-discovered evidence.

Upon reviewing the record and the parties' briefs, 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.   Causation

     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).

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, the commission deferred

to the deputy commissioner's finding that claimant's testimony

that the April 6, 2000 accident caused a low back injury was not

credible.   This credibility determination was based upon

claimant's inconsistent descriptions of the onset of his low

back pain and claimant's supervisor's testimony that claimant

did not report low back pain to him after the April 6, 2000

accident.   It is well settled that credibility determinations

are within the fact finder's exclusive purview.     Goodyear Tire &

Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437

(1987).   Thus, we will not disturb that finding on appeal.

     In reviewing the medical evidence regarding the cause of

claimant's low back pain, the commission found as follows:

            [T]he initial medical records clearly
            illustrate that the claimant did not suffer
            low back pain in relation to the compensable
            injury. Dr. [Earl W.] Watts[, Jr.]
            repeatedly noted the claimant's precise
            complaints of upper back pain between the
            shoulder blades. He routinely diagnosed a

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thoracic back strain and made no mention of
the low back. Dr. Watts performed no
diagnostic tests on the lumbar area. The
contemporaneous physical therapy notes
detail a condition involving the left
parascapular and trapezius areas. There is
no opinion from Dr. Watts causally
connecting the low back pain to the
compensable injury.

     During Dr. [Louis J.] Castern's first
examination, he also noted upper thoracic
parascapular pain and specifically diagnosed
a left thoracic strain. On April 28, 2000,
the claimant complained of low back pain.
Dr. Castern advised that these symptoms were
"[i]n addition to his thoracic symptoms" and
indicated that they were new: "[The
claimant] now also has been experiencing
intermittent low back pain symptoms."
(Emphasis added). Dr. Castern never related
the low back pain to the compensable
accident.

     Similarly, when Dr. [Bertram W.]
Spetzler began treatment in June 2000, he
focused on an upper back injury. He first
examined the low back on August 4, 2000,
after the claimant complained of "pain with
lifting boxes." On May 14, 2001, Dr.
Spetzler confirmed his belief that the low
back pain was not related to the industrial
accident. Lastly, Dr. [Darrell F.] Powledge
concluded that the claimant's low back
complaints were not causally connected to
the work-related accident.

     We are not persuaded by Dr. [Alvis T.]
Perry's assessment, when compared to the
numerous other medical opinions.
Additionally, he did not begin to treat the
claimant until many months after the injury
by accident.

     Regardless, we note that the evidence
does not persuasively establish that the
claimant's low back condition rendered him
totally disabled. Instead, several
physicians found him to be capable of


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          returning to work. Medical reports and
          diagnostic studies do not show objective
          findings of an incapacitating low back
          condition. Even if the claimant's headaches
          were disabling, this condition was related
          to the epidural steroid injections, which
          were performed for the non-compensable low
          back pain.

(Citation omitted.)

     "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).   The medical records of Drs. Watts,

Castern, Spetzler, and Powledge amply support the commission's

factual findings.   As fact finder, the commission weighed the

medical evidence, accepted the opinions of Drs. Spetzler and

Powledge, and rejected Dr. Perry's contrary opinion.   "Questions

raised by conflicting medical opinions must be decided by the

commission."   Penley v. Island Creek Coal Co., 8 Va. App. 310,

318, 381 S.E.2d 231, 236 (1989).

     In light of that lack of any opinion regarding causation

from Drs. Watts and Castern and the opinions of Drs. Spetzler

and Powledge that claimant's low back condition was not causally

related to his compensable April 6, 2000 injury by accident, we

cannot find as a matter of law that claimant's evidence

sustained his burden of proof. 1


     1
       We note that claimant also did not meet his burden of
proving that his headaches were causally related to his
compensable injury by accident because the headaches were

                               - 4 -
                 II.   After-discovered Evidence

     Claimant contends the commission erred in refusing to

consider the April 10, 2000 notes of his co-worker Marty Bolden,

as after-discovered evidence.   Claimant filed Bolden's notes

with his request for review.

     Commission Rule 3.3 provides:

               No new evidence may be introduced by a
          party at the time of review except upon
          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 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.

Therefore, the party seeking to re-open the record to submit

after-discovered evidence must prove 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."   Williams v. People's

Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).


related to steroid injections given to treat his non-compensable
low back condition.


                                - 5 -
     The evidence submitted by claimant did not meet the second

prong of the requirements for admitting after-discovered

evidence.    The evidence existed long before the hearing date,

and Bolden's notes or his testimony could have been obtained

prior to or at the hearing through the exercise of due

diligence.   Accordingly, the commission did not err in refusing

to consider such evidence.

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

                                                           Affirmed.




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