                    COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia


CITY OF ROANOKE
                                           MEMORANDUM OPINION * BY
v.         Record No. 1218-97-3             JUDGE LARRY G. ELDER
                                              DECEMBER 23, 1997
JOHNNY G. GUILLIAMS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Steven J. Talevi, Assistant City Attorney
           (Wilburn C. Dibling, Jr., City Attorney, on
           briefs), for appellant.
           Mary L. Poletti (Brumberg, Mackey & Wall, on
           brief), for appellee.



     The City of Roanoke (appellant) appeals a decision of the

Workers' Compensation Commission (commission) awarding permanent

partial disability benefits under Code § 65.2-503(B)(16) to

Johnny G. Guilliams (claimant).   Appellant contends that the

commission violated its right to due process when it awarded

benefits to claimant without holding an evidentiary hearing.

Appellant also contends that the commission erred when it (1)

found that a surgical scar on claimant's chest had reached

maximum medical improvement and (2) concluded that this scar was

a "severely marked disfigurement" under Code § 65.2-503(B)(16).

For the reasons that follow, we reverse.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                I.

                        EVIDENTIARY HEARING

     We hold that the commission did not violate appellant's due

process rights when it awarded claimant permanent partial

disability benefits without holding an evidentiary hearing.

     "'[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.'   [T]he

fundamental requisite of due process of law is the opportunity to

be heard.'"   Duncan v. ABF Freight System, Inc., 20 Va. App. 418,

422-23, 457 S.E.2d 424, 426 (1995) (citations omitted).

     The commission's rules provide for procedures to dispose of

cases "on the record" and without holding an evidentiary hearing.

Rule 2 states that contested issues not resolved through

prehearing dispute resolution procedures "will be referred for

decision on the record or evidentiary hearing."    Under Rule 2.1,

contested issues will be decided "on the record" and without

additional presentation of evidence if "it appears that there is

no material fact in dispute as to any contested issue."     When the

commission determines that a decision on the record is

appropriate in a particular case, "the parties are given twenty

days to submit written statements and evidence."    Rules of the

Workers' Compensation Commission 2.1(A).   If a party is

dissatisfied with a decision on the record, "[r]equest for review

. . . shall proceed under [Code § 65.2-705] and Rule 3."    Rules

of the Workers' Compensation Commission 2.1(B).



                                 2
     The commission's rules contain mechanisms by which a party

may seek to introduce additional evidence following a decision on

the record.   Generally, "[n]o new evidence may be introduced by a

party at the time of review . . . ."    Rules of the Workers'

Compensation Commission 3.3.   However, a party that wishes to

introduce new evidence following a request for review of an

initial decision has two options it may pursue.    It may (1) seek

the opposing party's agreement to the introduction of new

evidence or (2) petition the commission to reopen the record to

receive after-discovered evidence.     See Rules of the Workers'

Compensation Commission 3.3.

     The commission's decision to award benefits to claimant "on

the record" was not a violation of appellant's due process

rights.   Pursuant to the commission's rules, appellant had

opportunities to attempt to introduce evidence regarding

claimant's scar prior to the full commission's award.    The record

established that appellant failed to act on these opportunities.

     Prior to the decision by the claims examiner, appellant did

not request either discovery or an evidentiary hearing, file a

written statement of the evidence supporting its defense, or

otherwise attempt to introduce evidence.    After claimant

requested the full commission to review the claims examiner's

decision, the record does not indicate that appellant sought to

introduce additional evidence through either negotiating with

claimant or filing a petition to reopen the record to receive



                                 3
after-discovered evidence.   Appellant did not file a written

statement supporting its position and never argued below that any

material fact was in dispute.   In light of appellant's failure to

utilize the commission's procedural rules to introduce evidence,

we cannot say that the commission's disposition of this case

without an evidentiary hearing denied appellant due process of

law.

                                 II.
                PERMANENT PARTIAL DISABILITY BENEFITS

       Appellant next contends that the evidence was insufficient

to support the commission's conclusion that claimant was entitled

to permanent partial disability benefits under Code

§ 65.2-503(B)(16).   Because the record is devoid of medical

evidence regarding the likelihood that the appearance of

appellant's scar will remain unchanged, we agree.

       Code § 65.2-503 provides benefits to indemnify injured

employees for permanent loss and disfigurement that is either

partial or total.    See Tumlin v. Goodyear Tire & Rubber Co., 18

Va. App. 375, 380-81, 444 S.E.2d 22, 24-25 (1994).      In order to

establish entitlement to benefits under Code § 65.2-503, a

claimant bears the burden of proving (1) that he or she has

suffered one of the losses enumerated in the statute and (2) that

the "incapacity is permanent and that the injury has reached

maximum medical improvement."    County of Spotsylvania v. Hart,

218 Va. 565, 568, 238 S.E.2d 813, 815 (1977).   The losses covered



                                  4
by Code § 65.2-503 include "[s]everely marked disfigurement of

the body resulting from an injury not otherwise compensated by

this section."    Code § 65.2-503(B)(16).   The commission has

previously held that scarring that results from a compensable

injury may qualify as a "severely marked disfigurement" under

Code § 65.2-503(B)(16).    See Price v. Davis H. Elliot Co., Inc.,

VWC File No. 137-65-65 (April 9, 1997), aff'd, Record No.

1009-97-3 (Va. Ct. App. Sept. 2, 1997); Cogswell v. Interstate
Van Lines, Inc., VWC File No. 167-67-98 (Nov. 27, 1995); Brown v.

City of Roanoke Fire Dept., VWC File No. 158-08-04 (March 7,

1995); Estu v. Restaurant Equipment, Inc., VWC File No. 153-64-53

(Aug. 10, 1993); Martin v. Federal Reserve Bank of Richmond, 67

VWC 149 (1988).

     The decisions of the commission as to questions of fact are

conclusive and binding upon this Court if supported by credible

evidence.   Code § 65.2-706; see Manassas Ice & Fuel Co. v.

Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).        On

appeal, we must view the evidence in the light most favorable to

the prevailing party below, and "[t]he fact that contrary

evidence may be found in the record is of no consequence if

credible evidence supports the commission's finding."     Farrar, 13

Va. App. at 229, 409 S.E.2d at 826 (citations omitted).

     We hold that the evidence was insufficient to support the

commission's finding that "[claimant's] scar should have reached

its maximum improvement" six months after his bypass surgery.




                                  5
Claimant offered no medical evidence establishing that his scar

had reached maximum medical improvement.   Even when viewing the

evidence in the light most favorable to claimant, neither the

photograph of claimant's scar nor the operative report prepared

by his surgeon indicate whether the current thickness, color, and

length of claimant's scar are unlikely to change or whether the

scar's appearance is likely to improve through continued healing

in the future.    Because the evidence offered by claimant failed

to prove that his scar had reached maximum medical improvement,

the commission erred when it awarded him permanent partial

disability benefits under Code § 65.2-503(B)(16).    Cf. Hart, 218

Va. at 569-70, 238 S.E.2d at 816 (reversing award of permanent

partial disability benefits because credible evidence failed to

support finding that claimant's arm injury had reached maximum

medical improvement).   Because we reverse on this issue, we do

not address whether the scar is a "severely marked

disfigurement."

     For the foregoing reasons, we reverse the commission's

award.
                                                         Reversed.




                                  6
