COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

JOHN D. BAYS 

v. Record No. 2397-96-3 MEMORANDUM OPINION*

 PER CURIAM 

SWB CONSTRUCTION CORPORATION MARCH 18, 1997 

AND 

THE HOME INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Lawrence L. Moise, III; Vinyard & Moise, on 

brief), for appellant. 

 (L. Johnson Sarber, III; Johnson, Ayers & 

Matthews, on brief), for appellees. 

 John D. Bays (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that (1) he 

failed to prove that he suffered from disability causally related 

to his compensable October 30, 1993 left shoulder injury; and (2) 

Dr. William E. Kennedy's April 9, 1996 report did not qualify as 

after-discovered evidence. 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. 

 I. 

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

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 

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

designated for publication. 
 2 

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. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 On January 25, 1995, Dr. Richard Kozakiewicz, claimant's 

treating physician, opined that "it would be very difficult for 

me to state that there is a greater than 50% chance that the pain 

in Mr. Bays' left shoulder is related to his October, 1993 work 

accident." Dr. Kozakiewicz' opinion, coupled with evidence that 

claimant performed substantial work from November 1, 1993 until 

at least January 1996, supports the commission's finding that 

claimant failed to prove that his disability, if any, was caused 

by his compensable accident. Accordingly, we cannot find as a 

matter of law that claimant's evidence sustained his burden of 

proof. 

 II. 

 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 

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). 
 3 

 Although Dr. Kozakiewicz reluctantly referred claimant to an 

orthopedic surgeon on January 25, 1995, claimant did not seek 

treatment from Dr. Kennedy until April 1996, two months after the 

February 7, 1996 hearing and approximately one month after the 

issuance of the deputy commissioner's decision. No evidence 

proved that claimant could not have obtained Dr. Kennedy's report 

before the hearing nor did claimant request that the record be 

left open for its submission. In addition, Dr. Kennedy's report 

would not have necessarily produced a different result. Dr. 

Kennedy's opinion conflicted with the opinion of Dr. Kozakiewicz. 

 As fact finder, the commission was entitled to accept Dr. 

Kozakiewicz' opinion and to reject Dr. Kennedy's opinion. 

Because Bays did not satisfy the second and fourth prongs of the 

test set forth in Williams, we cannot say that the commission 

erred in denying his motion to reopen the record. 

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

 Affirmed.