                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Bray and Annunziata


ALPHONZO TAYLOR, SR.
                                             MEMORANDUM OPINION*
v.   Record No. 1216-00-2                         PER CURIAM
                                              SEPTEMBER 12, 2000
POCAHONTAS CORRECTIONAL UNIT/
 COMMONWEALTH OF VIRGINIA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Alphonzo Taylor, Sr., pro se, on brief).

             (Mark L. Earley, Attorney General; Judith
             Williams Jagdmann, Deputy Attorney General;
             Gregory E. Lucyk, Senior Assistant Attorney
             General; Scott J. Fitzgerald, Assistant
             Attorney General, on brief), for appellee.


     Alphonzo Taylor, Sr. (claimant) contends that the Workers'

Compensation Commission erred in (1) refusing to consider, on

review as after-discovered evidence, a December 22, 1999 letter

from Dr. Vincent Dalton's office and two pages of a portion of a

November 1, 1999 recorded statement 1 and; (2) finding that he

failed to prove that his disability from August 24, 1999 through


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Claimant's argument that the commission erred in refusing
to consider Dr. Dalton's November 2, 1999 letter as
after-discovered evidence is without merit. Our review of the
record revealed that Dr. Dalton's November 2, 1999 medical
report was admitted into evidence before the commission as
Claimant's Exhibit 2 at the December 13, 1999 hearing.
Accordingly, we will not consider claimant's argument with
respect to that report.
September 3, 1999 was causally related to his compensable July

15, 1999 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.

                   I.   After-Discovered Evidence

     In denying claimant's request that it consider

after-discovered evidence on review, the commission ruled that

the evidence in question could have been obtained by claimant

before the hearing through the exercise of reasonable diligence.

Credible evidence supports the commission's findings.

     Rule 3.3 of the Rules of the Workers' Compensation

Commission allows for consideration of after-discovered evidence

by the full commission either by agreement of the parties or

upon a petition to reopen or receive after-discovered evidence.

No evidence showed that the parties agreed to the submission of

Dr. Dalton's December 22, 1999 report or the pages from the

November 1, 1999 recorded statement nor did claimant file a

petition to reopen or receive after-discovered evidence.

     Furthermore, "[a]s 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 the

hearing through the exercise of reasonable diligence; (3) it is


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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).

     No evidence showed that claimant was precluded from

obtaining Dr. Dalton's opinion or that Dr. Dalton was

unavailable before the December 13, 1999 hearing.    Furthermore,

the November 1, 1999 recorded statement was given by claimant

before the hearing, and he offered no explanation as to why he

could not have offered the statement into evidence at the

hearing.   Instead, claimant waited until after the hearing and

after the deputy commissioner issued an opinion on December 15,

1999 to obtain and file Dr. Dalton's December 22, 1999 report

and the two pages from the November 1, 1999 recorded statement. 2

     Under these circumstances, the commission did not err in

failing to consider such evidence.     Because claimant did not

satisfy the first and second prongs of the Williams test with

respect to the recorded statement and the second prong of the

Williams test with respect to Dr. Dalton's December 22, 1999

report, the commission did not err in denying claimant's request

for it to consider these documents as after-discovered evidence

on review.


     2
       Contrary to claimant's argument, employer specifically
raised causation as a defense at the hearing, in addition to its
misconduct defense.

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                         II.     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).

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 ruling that claimant's evidence failed to establish a

causal connection between his compensable July 15, 1999 injury

by accident and his disability from August 24, 1999 through

September 3, 1999, the commission found as follows:

          [T]he claimant was released to return to
          full duty effective August 20, 1999. While
          we note the claimant's testimony that he
          continued to suffer from lower back pain
          following his full-duty release, we also
          note that this is inconsistent with Dr.
          Dalton's report of August 13, 1999, that
          [claimant] was asymptomatic with no palpable
          spasms. The claimant reported to a
          physician other than his authorized treating
          physician on August 24, 1999, stating that
          he had suffered a new injury at work.
          Neither Dr. Dalton nor Dr. [Donald] Davidson
          have offered an opinion as to whether the
          claimant's disability commencing August 24,
          1999, is causally related to the industrial
          accident of July 15, 1999.

     In light of the lack of any opinion regarding causation

from Drs. Dalton and Davidson and the inconsistency between

claimant's testimony and Dr. Dalton's medical records, the


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commission, as fact finder, was entitled to conclude that

claimant failed to prove a causal connection between his

compensable July 15, 1999 injury by accident and his disability

beginning August 24, 1999 through September 3, 1999.

Accordingly, we cannot find as a matter of law that claimant's

evidence sustained his burden of proof.

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

                                                           Affirmed.




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