                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia


RICKEY A. MAGGARD

v.          Record No. 2060-95-3        MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
NORTH FORK COAL CORPORATION                 APRIL 30, 1996
and
OLD REPUBLIC INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Gerald L. Gray (Gerald Gray Law Firm, P.C.,
            on briefs), for appellant.

            S. T. Mullins (Street, Street, Street, Scott
            & Bowman, on briefs), for appellees.



     On appeal from a decision of the Virginia Workers'

Compensation Commission denying him temporary total disability

benefits, Rickey A. Maggard contends (1) that no credible

evidence supports the commission's finding that he unjustifiably

refused necessary medical treatment, and (2) that the commission

erred in refusing to reopen the record based on after-discovered

evidence.   We disagree and affirm the commission's decision.

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     Crisp v. Brown's Tysons Corner

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).

The findings of the commission, if based on credible evidence,

are conclusive and binding on this Court.     Morris v. Badger

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,

877 (1986).

     On January 10, 1994, Maggard, employed as a maintenance

repairman by North Fork Coal Corporation, stepped in a hole and

twisted his hip and back.   Pursuant to a memorandum of agreement

and supplemental memorandum of agreement, the commission awarded

him temporary total disability compensation from April 18 through

May 30, 1994, and from June 6 through June 12, 1994.
     On May 23, 1994, because Maggard's condition had not

improved, his treating physician, Dr. Neal A. Jewell, an

orthopaedist, recommended surgery.     On July 7, 1994, Dr. Jewell

advised Maggard that his condition was not likely to improve

without surgery.   On September 14, 1994, Maggard sought a second

opinion from Dr. Jeffrey R. McConnell.    Dr. McConnell concluded

that conservative treatment had failed and recommended surgery.

Maggard chose not to undergo surgery.    On October 24, 1994, Dr.

Jewell found that Maggard had reached maximum medical improvement

and released him to permanent light work.    Dr. Jewell again

advised Maggard to have surgery, but Maggard again rejected this

advice.

     On October 6, 1994, Maggard sought reinstatement of benefits

from July 21, 1994 due to a change in condition.    The deputy

commissioner denied his petition, finding that Maggard had

unjustifiably refused medical treatment recommended by his

treating physician and had failed to market his residual



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capacity.

     Maggard requested review by the full commission.     He

petitioned to reopen the record for additional evidence, a post-

hearing report by Dr. Jewell stating that Maggard's election not

to have surgery was a valid decision.    The commission held that

Dr. Jewell's post-hearing report did not qualify as after-

discovered evidence and denied Maggard's petition to reopen the

record.   The commission further held that Maggard had

unjustifiably refused recommended surgery.    It affirmed the

opinion of the deputy commissioner.
     The commission's finding that Maggard unjustifiably refused

surgery recommended by his treating physician is supported by

credible evidence in the record.     Both Dr. Jewell and Dr.

McConnell recommended surgery.    Had Maggard undergone the

surgery, he would have been able to resume working sooner, with

few or no restrictions.   His fear of surgery was not sufficient

justification for refusing necessary medical treatment.

     The commission did not err in refusing to reopen the record

to admit Dr. Jewell's post-hearing report.    "The standard for

reviewing petitions to reopen the record to receive after-

discovered evidence is the same before the commission as it is

before a trial court."    Williams v. People's Life Insurance Co.,

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

the Workers' Compensation Commission 3.3.     "The four requirements

which must be met . . . are that (1) the evidence was obtained



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after the hearing; (2) it could not have been obtained prior to

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."   Id. (citation omitted) (emphasis in original).    The

commission found that Dr. Jewell's report stating, "patient's

progress certainly indicated that his original decision not to

proceed with surgery was a valid decision," did not qualify as

after-discovered evidence under Rule 3.3.   Inquiry into whether

Maggard's refusal to undergo surgery was justified could have

been made before the hearing.
     The commission also found that had the report been admitted,

it would not have produced a different result.   The report would

cure the refusal of surgery because surgery was no longer

recommended.   However, it would not justify the earlier refusal

of surgery because acceptance of surgery would have produced a

quicker recovery.    The record supports this finding.

     We need not consider whether Maggard adequately marketed his

residual capacity.   That issue is moot.

     The decision of the commission is affirmed.
                                               Affirmed.




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