COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

MILDRED F. GRAVELY 

v. Record Nos. 1784-95-3 MEMORANDUM OPINION* BY 

 and 0992-95-3 JUDGE LARRY G. ELDER 

 MAY 7, 1996 

RAPPAHANNOCK GENERAL HOSPITAL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Lawrence L. Moise, III (Vinyard and Moise, 

P.C., on briefs), for appellant. 

 Linda M. Ziegler (Karen A. Gould; Crews & 

Hancock, P.L.C., on briefs), for appellee. 

 In two separate yet inter-related appeals, Mildred Gravely 

(claimant) appeals from the Workers' Compensation Commission's 

(commission) denial of her claim for a change in condition and 

refusal to reopen the record to allow after-discovered evidence. 

 Claimant contends that the commission erred (1) in determining 

that she did not establish a change in condition and (2) in 

refusing to reopen the record to consider after-discovered 

evidence. Because the commission did not err in either case, we 

affirm its decisions. 

 I. 

 FACTS 

 Claimant sustained a work-related injury by accident while 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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working for the Rappahannock General Hospital (employer) on 

January 27, 1992. On December 28, 1992, claimant filed a claim 

for benefits alleging an injury by accident. While claimant 

received temporary total and temporary partial benefits for 

certain periods of disability, the parties agreed that claimant 

was physically able to return to her pre-injury employment as of 

February 15, 1993. Because claimant returned to full-duty work 

on February 15, 1993, yet requested disability benefits from that 

date forward, the deputy commissioner treated claimant's December 

28, 1992 claim as one for a change in condition. Based on 

various medical records from different treating physicians, the 

deputy commissioner found on October 15, 1993, that claimant 

failed to establish a causal connection between her present 

condition and the original accident and denied benefits for any 

period after February 15, 1993. 

 During claimant's appeal to the full commission, Dr. Adnan 

Silk performed an MRI on claimant. The results, which were 

described in a February 22, 1994 report, revealed that claimant 

suffered from degenerative disc disease, scarring, and midline 

recurrent disc herniation at L5-S1. A March 16, 1994 letter from 

Dr. Silk revealed that claimant continued to suffer from pain and 

showed scarring and bulging at L5-S1. Claimant did not attempt 

to introduce these records to the full commission before it 

decided the appeal from the deputy commissioner. 

 On May 9, 1994, the commission affirmed the deputy 
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commissioner's opinion. After the commission's decision, 

claimant continued to receive medical documents from Dr. Silk. 

In a letter dated May 23, 1994, Dr. Silk stated that claimant had 

been disabled since her original workplace injury and continued 

to be disabled. An April 3, 1995 report from Dr. Silk stated 

that claimant's current problem "was probably related" to the 

original workplace injury. 

 On appeal, claimant asked the Court of Appeals to remand the 

case to the commission so that it could consider the afterdiscovered evidence obtained from Dr. Silk. On December 6, 1994, 

the Court of Appeals rejected claimant's request, affirmed the 

commission's decision, and held that claimant failed to prove 

causality. The Court also held that it could not consider 

additional medical evidence which had not been before the 

commission, as "claimant failed to make a motion on review to the 

full commission requesting that it consider after-discovered 

evidence." 

 On December 20, 1994, two weeks after this Court's opinion, 

claimant again filed a claim for benefits based on a change in 

condition. On February 2, 1995, claimant also filed a petition 

to reopen the record to allow after-discovered evidence. The 

application and the petition are the subject of these appeals. 

On April 7, 1995, the commission denied claimant's petition to 

reopen the record to submit the evidence, stating that, "[t]he 

evidence that the claimant wishes the Commission to consider as a 
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'mistake' is the same after-discovered evidence that the Court of 

Appeals had before it and determined was not part of the record 

of the case." Claimant appeals this decision to this Court. 

 On April 12, 1995, an assistant claims examiner rejected 

claimant's claim for benefits alleging a change in condition, 

stating that the claim was barred by the commission's April 7, 

1995 decision and that the commission was foreclosed from 

considering any evidence from Dr. Silk. On July 18, 1995, the 

commission affirmed the assistant claims examiner's rejection of 

claimant's application. Claimant also appeals this decision to 

this Court. 

 II. 

 AFTER-DISCOVERED EVIDENCE 

 Rule 1.6(D) of the Rules of the Workers' Compensation 

Commission states that, "[o]nly information contained in the file 

at the time of the original decision along with the review 

request and any response from the opposing party will be 

considered. Additional evidence will not be accepted." 

 Rule 3.3 (former Rule 2(C)) provides an exception to Rule 

1.6(D): 

 No new evidence may be introduced by a 

party at the time of review [from the deputy 

commissioner's decision] except on 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 
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absolutely necessary and advisable and 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 afterdiscovered evidence. 

This Court reiterated the rules for reviewing petitions to reopen 

the record to receive after-discovered evidence in Williams v. 

People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 

(1995). See Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 

327, 328-29, 338 S.E.2d 352, 353 (1986). 

 In this case, claimant did not file a motion to consider the 

after-discovered evidence, namely, Dr. Silk's first two medical 

reports, before the full commission rendered its May 9, 1994 

decision. As this Court held in its December 6, 1994 memorandum 

opinion, "[t]he February 22, 1994 MRI results were available to 

claimant pending review of the deputy commissioner's decision by 

the full commission." Because claimant failed to file the 

appropriate motion, "the full commission did not have the 

opportunity to consider this issue, [and] we will not consider it 

on appeal." The same reasoning guides our holding in this case. 

 To allow claimant to frustrate Rule 3.3 would be to thwart the 

"finality of the decision making process." Charcoal Hearth, 1 

Va. App. at 329, 338 S.E.2d at 353. 

 We recognize that two reports from Dr. Silk, dated May 23, 

1994, and April 3, 1995, were obtained after the full 

commission's original decision on May 9, 1994. However, as this 

Court noted in its December 6, 1994 memorandum opinion, Dr. 
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Silk's medical opinions, as contained in these letters, were 

available before the full commission's decision. Failure to 

obtain medical records that were available does not constitute 

due diligence. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 

601, 614, 401 S.E.2d 200, 207 (1991). Claimant cannot prove that 

she could not have obtained Dr. Silk's medical reports prior to 

the full commission's decision through the exercise of due 

diligence. Furthermore, this record does not disclose the 

occurrence of the type of mistake contemplated in Harris v. 

Diamond Constr. Co., 184 Va. 711, 36 S.E.2d 573 (1946). 

 We do not hold that the commission is forever barred from 

considering the evidence obtained from Dr. Silk if appropriate 

and consistent with the commission's rules in addressing future 

applications. However, for reasons described below, Dr. Silk's 

evidence could not be used to support claimant's December 20, 

1994 change in condition application, now before us on appeal. 

 III. 

CHANGE IN CONDITION 

 We also hold that the commission did not err in determining 

that claimant failed to establish a change in condition. 

Claimant attempted to introduce additional medical evidence from 

Dr. Silk to refute the opinions of her original treating 

physicians that her post-February 15, 1993 complaints were 

unrelated to her workplace injury. We are reminded, however, 

that "'[a] final judgment based on a determination by the 
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commission on the issue of causation conclusively resolves the 

claim as to that particular injury. Thereafter, after fraud or 

mistake, the doctrine of res judicata bars further litigation on 

that claim.'" Mize, 11 Va. App. at 604, 401 S.E.2d at 202 

(quoting AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 

879, 881 (1990)). Here, claimant conceded that her condition did 

not change since this Court's December 6, 1994 decision. 

 Based on the foregoing, we affirm the commission's 

decisions. 

Affirmed.
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BENTON, J., dissenting. 

 In rejecting Mildred Gravely's application to re-open the 

record to consider the report of Dr. Silk, the commission ruled 

that this Court's decision in Gravely v. Rappahannock General 

Hospital, Record No. 0974-94-3 (Memorandum op., December 6, 

1994), barred it from considering that evidence. It did not. 

This Court stated that the evidence would not be considered on 

appeal "since the full commission did not have the opportunity to 

consider this issue." That ruling did not preclude Gravely from 

asking the commission to consider the evidence and did not 

preclude the commission from determining whether under its rules 

the evidence could now be timely offered. The commission simply 

misread this Court's opinion. Therefore, I would reverse the 

commission's decision and remand for reconsideration.