COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

COUNTY OF CHESTERFIELD 

 MEMORANDUM OPINION*

v. Record No. 1696-96-2 PER CURIAM 

 DECEMBER 17, 1996 

ARTHUR L. SCOTT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Steven L. Micas, County Attorney; Michael P. 

Kozak, Assistant County Attorney, on briefs), 

for appellant. 

 (Laura L. Geller; McDonald & Snesil, P.C., on 

brief), for appellee. 

 County of Chesterfield ("employer") contends that the 

Workers' Compensation Commission ("commission") erred in 

(1) finding that employer failed to prove that Arthur L. Scott's 

("claimant") post-August 2, 1995 disability was not causally 

related to his compensable May 16, 1995 injury by accident; 

and (2) in denying employer's petition requesting that the 

commission consider Dr. David Muron's February 5, 1996 report 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 

 

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

designated for publication. 
 2 

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

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

"General principles of workman's compensation law provide that 

'[i]n an application for review of any award on the ground of 

change in condition, the burden is on the party alleging such 

change to prove his allegations by a preponderance of the 

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 

572 (1986)). Unless we can say as a matter of law that 

employer's evidence sustained its 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). 

 In denying employer's change in condition application, the 

commission found as follows: 

 The employer has not met [its] burden. 

Dr. Muron diagnosed two conditions, an 

avulsion fracture and avascular necrosis and 

his reports establish disability after the 

accident from these conditions. While 

surgery on August 2, 1995 was for the 

necrosis, there is nothing in Dr. Muron's 

reports that states the injury from the 

fracture had healed by the surgery or that 

disability after the surgery was caused 

exclusively by the claimant's pre-existing 

necrosis. 

 Dr. Muron's statement that the claimant 

was disabled from work until the surgery is 

ambiguous - it might mean that disability 

from the fracture had ended or it might mean 

that disability after the surgery was 

predominately caused by the necrosis. In 

view of this conflict, we cannot say the 
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employer has met its burden of proof. 

 Based upon the lack of any persuasive opinion from Dr. Muron 

concerning the cause of claimant's post-August 2, 1995 

disability, we cannot say as a matter of law that the commission 

erred in finding that the medical evidence was not sufficient to 

justify terminating claimant's disability award and that employer 

failed to meet its burden of proving that there was no causal 

link between claimant's current disability and his work-related 

injury. "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). 

 II. 

 As the party seeking to reopen the record on the basis of 

after-discovered evidence, employer 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). 

 In denying employer's petition, the commission stated as 

follows: 

 The employer asks us to admit Dr. 

Muron's February 5, 1996 office note. This 

report does not qualify as after-discovered 
 4 

evidence. Dr. Muron's opinion concerning the 

necrosis and compensability could have been 

obtained before the Deputy Commissioner 

closed the record. Moreover, even if it were 

admitted and relevant, it would not change 

the result. This report supports our finding 

that the employer is not responsible for the 

necrosis. It does not overcome the failure 

of the evidence to establish that the 

claimant was no longer disabled from the May 

16, 1995 industrial accident. 

 Credible evidence supports these findings. Claimant had 

been treating with Dr. Muron since the time of his industrial 

accident. The surgery for claimant's necrosis took place in 

August 1995 and the record on employer's change in condition 

application was not closed until January 26, 1996. Based upon 

this record, the commission could reasonably conclude that 

employer had ample opportunity to obtain Dr. Muron's opinion 

before the record closed. Moreover, the February 5, 1996 office 

notes would not change the result reached by the commission. The 

office notes confirmed that claimant's necrosis was not 

work-related, but they did not address the issue of whether 

claimant's continuing disability was caused in whole, or in 

part, by his work-related injury. Because employer did not 

satisfy the second and fourth prongs of the Williams test, the 

commission did not err in denying employer's petition to receive 

after-discovered evidence. 

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

 Affirmed.