COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARGARET J. MULLINS 

 MEMORANDUM OPINION*

v. Record No. 1700-96-3 PER CURIAM 

 JANUARY 14, 1997 

CLINCHFIELD COAL COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Daniel H. Sachs, on brief), for appellant. 

 (H. Ashby Dickerson; Penn, Stuart & Eskridge, 

on brief), for appellee. 

 Margaret J. Mullins ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in denying her 

motion that the commission reopen the record to allow the 

pulmonary committee to consider the original of a June 16, 1995 

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

allowing her 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. 
 2 

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: 

 [W]e find it significant that the claimant, 

intentionally or unintentionally, initially 

predicated her claim upon a film copy, rather 

than an original. Assuming for the sake of 

argument that she did not know that at first, 

she either knew or should have known 

otherwise on or about October 4, 1995, when 

she was provided the defendant's x-ray 

interpretations, two of which included 

negative comments about the film's quality, 

and one which specifically indicated that the 

film was a copy. Even though at least 

potentially armed with that knowledge, 

claimant's counsel neither obtained the 

original film before the hearing nor made a 

motion during that proceeding for its 

posthearing submission or consideration. 

Because of that failure, and because the time 

limit for filing posthearing evidence is 

within the hearing Commissioner's discretion, 

the Deputy Commissioner had every right to 

deny counsel's subsequent motion. 

 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 her motion to reopen the record 

for after-discovered evidence. 
 3 

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

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.