                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


ARLINGTON HOSPITAL FOUNDATION, INC.,
 ARLINGTON ELDER CARE D/B/A
 THE WASHINGTON HOUSE AND
 HEALTHCARE PROVIDERS GROUP
                                              MEMORANDUM OPINION *
v.   Record No. 2449-95-4                         PER CURIAM
                                               FEBRUARY 27, 1996
ESTELLE GEISEN


                                     FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
             (John E. McIntosh, Jr.; Crews & Hancock, on
             briefs), for appellants.

             (Kenneth W. Smith; Haas & Dennis, on
             brief), for appellee.


     Arlington Hospital Foundation, Inc. and its insurer

(hereinafter collectively referred to as employer) appeal a

decision of the Workers' Compensation Commission denying its

application to terminate Estelle Geisen's (claimant) compensation

benefits.   Employer contends that the commission erred in




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1) relying upon a March 24, 1995 report of Dr. Norman Coleman,

which claimant did not file with the commission until after the

deputy commissioner rendered her opinion and which did not

qualify as after-discovered evidence; and (2) finding that

claimant was unable to return to her pre-injury work as of

January 30, 1995.     We conclude that the March 24 report should

not have been considered and therefore reverse the commission's

decision. 1

                                   I.

     On September 23, 1993, claimant sustained a compensable

injury by accident to the right side of her face.     On November

16, 1993, claimant came under the care of Dr. Coleman, an oral

surgeon.      On January 25, 1995, Dr. Coleman wrote to employer's

insurance carrier, releasing claimant to return to work as of

January 30, 1995.     On February 1, 1995, based upon this report,

employer filed a change in condition application requesting that

the commission terminate claimant's compensation benefits as of

January 30, 1995.

     On February 27, 1995, the deputy commissioner wrote to the

parties informing them that the case had been selected for an

on-the-record determination.     The deputy commissioner directed

the parties to submit position statements by March 17 and to

submit all evidence by March 27, after which she would close the
     1
      We find no merit in claimant's argument that employer
failed to preserve its right to appeal the commission's decision
to consider Dr. Coleman's March 24, 1995 report.



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record.   On March 16 claimant's counsel wrote to the deputy

commissioner and requested a continuance on the grounds that Dr.

Coleman, who had examined claimant again that day, would be out

of town until March 20 and therefore could not prepare a report

until after that date.   Employer objected to claimant's request

for a continuance.    The deputy commissioner did not respond to

claimant's request.

     On March 24, 1995, Dr. Coleman rendered a report stating

that he prematurely released claimant to return to work and that

he was referring her for a neurological evaluation.   Claimant's

counsel filed this report with the commission on April 14, 1995,

seven days after the deputy commissioner rendered her opinion.

The record does not reflect when claimant's counsel sent the

report to the commission.
     On April 7, 1995, the deputy commissioner rendered her

decision, granting employer's application based upon Dr.

Coleman's January 25 report.   On review, a majority of the

commission considered Dr. Coleman's March 24 report and reversed

the deputy commissioner's decision.   The commission found that

"it would be unjust to deprive the claimant of compensation for a

period during which the evidence is uncontradicted that she was

disabled."   The commission also noted that had the deputy

commissioner granted claimant's request for a continuance until

she received Dr. Coleman's letter, the evidence clearly would

have shown that claimant was unable to perform the duties of her




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pre-injury job.

       Commissioner Tarr dissented, finding that the commission

improperly considered the March 24 report because it was not part

of the deputy commissioner's record and it did not qualify as

after-discovered evidence.   He noted that claimant failed to

provide any explanation for why the March 24 report, which was

issued by Dr. Coleman before the record closed on March 27, 1995,

was not filed with the commission before April 14, 1995.

Commissioner Tarr found that the majority's opinion ignored the

mandate of Rule 3:3 of the Rules of the Workers' Compensation

Commission.
                                 II.

       "[A] rule when adopted pursuant to rule-making authority has

the same force as a statute."    Graham v. Peoples Life Ins. Co., 7

Va. App. 61, 72, 372 S.E.2d 161, 168 (1988) (reh'g en banc).      The

General Assembly has authorized the commission to "make rules and

regulations for carrying out the provisions of this title."      Code

§ 65.2-201.   "The adoption of such rules is a legislative act,

and the enactment is binding and law upon the parties and the

Commission as well."    Graham, 7 Va. App. at 72, 372 S.E.2d at

168.    Rule 3:3 provides as follows:
            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



                                  4
     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.


     In Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 327,

328-29, 338 S.E.2d 352, 353 (1986), we held that in the absence

of a formal petition requesting the reopening of the case and the

taking of additional testimony, the commission's rules preclude

it from considering on review additional evidence or medical

reports that were not available to the deputy commissioner.    A

claimant's discovery after the deputy commissioner's opinion that

certain medical reports were omitted does not constitute a basis

on which to reopen the record.    Failure to obtain medical records

that were available and known does not constitute due diligence.
 Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401

S.E.2d 200, 207 (1991).

     Here, claimant did not present Dr. Coleman's March 24 report

to the deputy commissioner before the record closed on March 27.

 Claimant also did not seek consideration of this report on

review as after-discovered evidence.    Moreover, Dr. Coleman's

March 24 report did not qualify as after-discovered evidence.      No

evidence showed that claimant obtained the March 24 report after

the record closed on March 27 or that the report could not have

been obtained prior to the record closing through the exercise of

reasonable diligence.     See Williams v. Peoples Life Ins. Co., 19

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

     As claimant did not file a petition to reopen the record and


                                  5
the commission did not qualify the report as after-discovered

evidence, the commission violated Rule 3:3 by considering the

March 24 report for the first time on review.       This rule "assures

an opposing party the opportunity to rebut additional testimony

introduced after the hearing of a case.      It also supports

finality in the decision making process."       Charcoal Hearth, 1 Va.

App. at 329, 338 S.E.2d at 353.   Considering a report filed after

the record closed without insisting upon compliance with the

commission's own rule is error.       Id.

     We recognize, as did the full commission, that the deputy

commissioner did not respond to claimant's request for a

continuance.   However, the continuance was not necessary once Dr.

Coleman rendered his report on March 24, three days before the

record closed.   Claimant offered no explanation as to why she

could not have timely filed this report.      Moreover, claimant did

not explain why the report was not filed with the commission

until April 14, 1995, one week after the deputy commissioner

rendered her decision.   Claimant had ample opportunity to file

Dr. Coleman's March 24 report before the deputy commissioner

rendered her opinion, but she failed to do so for unexplained

reasons.   The full commission, faced with the requirements of

Rule 3:3, had no authority to consider the report.

     Accordingly, we reverse the commission's decision.


                                        Reversed.




                                  6
Annunziata, J., dissenting.

     I agree with the majority that the commission could not

consider the March 24 report issued by Dr. Coleman in reaching

its decision in this case.    However, in the proper exercise of

its discretion, the commission found the deputy commissioner

should have granted claimant's request for a continuance for the

purpose of receiving the report.       Thus, I would remand the matter

to the commission with instructions to remand the case to the

deputy commissioner for consideration of Dr. Coleman's March 24

report.




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