                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


DAN E. BALES
                                              MEMORANDUM OPINION *
v.   Record No. 1699-96-3                         PER CURIAM
                                               JANUARY 14, 1997
SEA "B" MINING COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Daniel H. Sachs, on brief), for appellant.
            (H. Ashby Dickerson; Penn, Stuart &
            Eskridge, on brief), for appellee.



     Dan E. Bales ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in denying his

motion that the commission reopen the record to allow the

pulmonary committee to consider the original of a March 27, 1995

x-ray as after-discovered evidence.   Claimant argues that by not

allowing him to submit the original x-ray, the commission

violated the "best evidence rule."    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.

     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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 affirming the deputy commissioner's denial of claimant's

motion, the commission stated as follows:
               As to the dispute about the original and
          copy of the x-ray, the Deputy Commissioner
          noted that Dr. Wiot's October 3, 1995 report
          stated that the x-ray film was a copy and
          that claimant's counsel was sent a copy of
          the report on October 26, 1995. The Deputy
          Commissioner found that claimant's counsel
          knew by at least fifteen days before the
          hearing that the circulated x-ray was a
          copy and did not make any effort to submit
          the original film. The Deputy Commissioner
          further held that the original x-ray did
          not qualify as after-discovered evidence.
               We agree. The copy of the x-ray film
          was submitted by claimant's counsel and
          interpreted by all the experts. The
          original x-ray film does not qualify as
          after-discovered evidence since, with due
          diligence, it could have been submitted
          before the hearing.


     Credible evidence supports the commission's findings.   Based

upon these findings, the commission could conclude that claimant

had an opportunity to obtain the original x-ray before the

November 15, 1995 hearing, but failed to do so.   Because claimant

did not satisfy the second prong of the Williams test, the
commission did not err in denying his motion to reopen the record

for after-discovered evidence.

     We also find no merit in claimant's "best evidence rule"



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argument.   Clearly, if the "best evidence rule" applied in this

case, the only party who could have invoked the rule with respect

to the x-ray film's quality would have been the employer, not

claimant.

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

                                              Affirmed.




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