COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

ARLINGTON HOSPITAL FOUNDATION, INC., 

 ARLINGTON ELDER CARE D/B/A 

 THE WASHINGTON HOUSE AND 

 HEALTHCARE PROVIDERS GROUP 

 MEMORANDUM OPINION*

v. Record No. 2449-95-4 PER CURIAM 

 FEBRUARY 27, 1996 

ESTELLE GEISEN 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (John E. McIntosh, Jr.; Crews & Hancock, on 

briefs), for appellants. 

 (Kenneth W. Smith; Haas & Dennis, on 

brief), for appellee. 

 

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

designated for publication. 

 Arlington Hospital Foundation, Inc. and its insurer 

(hereinafter collectively referred to as employer) appeal a 

decision of the Workers' Compensation Commission denying its 

application to terminate Estelle Geisen's (claimant) compensation 

benefits. Employer contends that the commission erred in 
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(1) relying upon a March 24, 1995 report of Dr. Norman Coleman, 

which claimant did not file with the commission until after the 

deputy commissioner rendered her opinion and which did not 

qualify as after-discovered evidence; and (2) finding that 

claimant was unable to return to her pre-injury work as of 

January 30, 1995. We conclude that the March 24 report should 

not have been considered and therefore reverse the commission's 

decision.1

 I. 

 On September 23, 1993, claimant sustained a compensable 

injury by accident to the right side of her face. On November 

16, 1993, claimant came under the care of Dr. Coleman, an oral 

surgeon. On January 25, 1995, Dr. Coleman wrote to employer's 

insurance carrier, releasing claimant to return to work as of 

January 30, 1995. On February 1, 1995, based upon this report, 

employer filed a change in condition application requesting that 

the commission terminate claimant's compensation benefits as of 

January 30, 1995. 

 On February 27, 1995, the deputy commissioner wrote to the 

parties informing them that the case had been selected for an 

on-the-record determination. The deputy commissioner directed 

the parties to submit position statements by March 17 and to 

submit all evidence by March 27, after which she would close the 

 1We find no merit in claimant's argument that employer 

failed to preserve its right to appeal the commission's decision 

to consider Dr. Coleman's March 24, 1995 report. 
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record. On March 16 claimant's counsel wrote to the deputy 

commissioner and requested a continuance on the grounds that Dr. 

Coleman, who had examined claimant again that day, would be out 

of town until March 20 and therefore could not prepare a report 

until after that date. Employer objected to claimant's request 

for a continuance. The deputy commissioner did not respond to 

claimant's request. 

 On March 24, 1995, Dr. Coleman rendered a report stating 

that he prematurely released claimant to return to work and that 

he was referring her for a neurological evaluation. Claimant's 

counsel filed this report with the commission on April 14, 1995, 

seven days after the deputy commissioner rendered her opinion. 

The record does not reflect when claimant's counsel sent the 

report to the commission. 

 On April 7, 1995, the deputy commissioner rendered her 

decision, granting employer's application based upon Dr. 

Coleman's January 25 report. On review, a majority of the 

commission considered Dr. Coleman's March 24 report and reversed 

the deputy commissioner's decision. The commission found that 

"it would be unjust to deprive the claimant of compensation for a 

period during which the evidence is uncontradicted that she was 

disabled." The commission also noted that had the deputy 

commissioner granted claimant's request for a continuance until 

she received Dr. Coleman's letter, the evidence clearly would 

have shown that claimant was unable to perform the duties of her 
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pre-injury job. 

 Commissioner Tarr dissented, finding that the commission 

improperly considered the March 24 report because it was not part 

of the deputy commissioner's record and it did not qualify as 

after-discovered evidence. He noted that claimant failed to 

provide any explanation for why the March 24 report, which was 

issued by Dr. Coleman before the record closed on March 27, 1995, 

was not filed with the commission before April 14, 1995. 

Commissioner Tarr found that the majority's opinion ignored the 

mandate of Rule 3:3 of the Rules of the Workers' Compensation 

Commission. 

 II. 

 "[A] rule when adopted pursuant to rule-making authority has 

the same force as a statute." Graham v. Peoples Life Ins. Co., 7 

Va. App. 61, 72, 372 S.E.2d 161, 168 (1988) (reh'g en banc). The 

General Assembly has authorized the commission to "make rules and 

regulations for carrying out the provisions of this title." Code 

§ 65.2-201. "The adoption of such rules is a legislative act, 

and the enactment is binding and law upon the parties and the 

Commission as well." Graham, 7 Va. App. at 72, 372 S.E.2d at 

168. Rule 3:3 provides as follows: 

 No new evidence may be introduced by a party at 

the time of review except upon agreement of the 

parties. A petition to reopen or receive afterdiscovered 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 absolutely necessary and advisable and 
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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 after-discovered 

evidence. 

 In Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 327, 

328-29, 338 S.E.2d 352, 353 (1986), we held that in the absence 

of a formal petition requesting the reopening of the case and the 

taking of additional testimony, the commission's rules preclude 

it from considering on review additional evidence or medical 

reports that were not available to the deputy commissioner. A 

claimant's discovery after the deputy commissioner's opinion that 

certain medical reports were omitted does not constitute a basis 

on which to reopen the record. Failure to obtain medical records 

that were available and known does not constitute due diligence. 

Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401 

S.E.2d 200, 207 (1991). 

 Here, claimant did not present Dr. Coleman's March 24 report 

to the deputy commissioner before the record closed on March 27. 

 Claimant also did not seek consideration of this report on 

review as after-discovered evidence. Moreover, Dr. Coleman's 

March 24 report did not qualify as after-discovered evidence. No 

evidence showed that claimant obtained the March 24 report after 

the record closed on March 27 or that the report could not have 

been obtained prior to the record closing through the exercise of 

reasonable diligence. See Williams v. Peoples Life Ins. Co., 19 

Va. App. 530, 532, 452 S.E.2d 881, 883 (1995). 

 As claimant did not file a petition to reopen the record and 
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the commission did not qualify the report as after-discovered 

evidence, the commission violated Rule 3:3 by considering the 

March 24 report for the first time on review. This rule "assures 

an opposing party the opportunity to rebut additional testimony 

introduced after the hearing of a case. It also supports 

finality in the decision making process." Charcoal Hearth, 1 Va. 

App. at 329, 338 S.E.2d at 353. Considering a report filed after 

the record closed without insisting upon compliance with the 

commission's own rule is error. Id. 

 We recognize, as did the full commission, that the deputy 

commissioner did not respond to claimant's request for a 

continuance. However, the continuance was not necessary once Dr. 

Coleman rendered his report on March 24, three days before the 

record closed. Claimant offered no explanation as to why she 

could not have timely filed this report. Moreover, claimant did 

not explain why the report was not filed with the commission 

until April 14, 1995, one week after the deputy commissioner 

rendered her decision. Claimant had ample opportunity to file 

Dr. Coleman's March 24 report before the deputy commissioner 

rendered her opinion, but she failed to do so for unexplained 

reasons. The full commission, faced with the requirements of 

Rule 3:3, had no authority to consider the report. 

 Accordingly, we reverse the commission's decision. 

 

 Reversed.
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Annunziata, J., dissenting. 

 I agree with the majority that the commission could not 

consider the March 24 report issued by Dr. Coleman in reaching 

its decision in this case. However, in the proper exercise of 

its discretion, the commission found the deputy commissioner 

should have granted claimant's request for a continuance for the 

purpose of receiving the report. Thus, I would remand the matter 

to the commission with instructions to remand the case to the 

deputy commissioner for consideration of Dr. Coleman's March 24 

report.