COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Overton 

Argued at Salem, Virginia 

RICKEY A. MAGGARD 

v. Record No. 2060-95-3 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

NORTH FORK COAL CORPORATION APRIL 30, 1996 

and 

OLD REPUBLIC INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Gerald L. Gray (Gerald Gray Law Firm, P.C., 

on briefs), for appellant. 

 S. T. Mullins (Street, Street, Street, Scott 

& Bowman, on briefs), for appellees. 

 On appeal from a decision of the Virginia Workers' 

Compensation Commission denying him temporary total disability 

benefits, Rickey A. Maggard contends (1) that no credible 

evidence supports the commission's finding that he unjustifiably 

refused necessary medical treatment, and (2) that the commission 

erred in refusing to reopen the record based on after-discovered 

evidence. We disagree and affirm the commission's decision. 

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

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

The findings of the commission, if based on credible evidence, 

are conclusive and binding on this Court. Morris v. Badger 

 

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

designated for publication. 
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Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 

877 (1986). 

 On January 10, 1994, Maggard, employed as a maintenance 

repairman by North Fork Coal Corporation, stepped in a hole and 

twisted his hip and back. Pursuant to a memorandum of agreement 

and supplemental memorandum of agreement, the commission awarded 

him temporary total disability compensation from April 18 through 

May 30, 1994, and from June 6 through June 12, 1994. 

 On May 23, 1994, because Maggard's condition had not 

improved, his treating physician, Dr. Neal A. Jewell, an 

orthopaedist, recommended surgery. On July 7, 1994, Dr. Jewell 

advised Maggard that his condition was not likely to improve 

without surgery. On September 14, 1994, Maggard sought a second 

opinion from Dr. Jeffrey R. McConnell. Dr. McConnell concluded 

that conservative treatment had failed and recommended surgery. 

Maggard chose not to undergo surgery. On October 24, 1994, Dr. 

Jewell found that Maggard had reached maximum medical improvement 

and released him to permanent light work. Dr. Jewell again 

advised Maggard to have surgery, but Maggard again rejected this 

advice. 

 On October 6, 1994, Maggard sought reinstatement of benefits 

from July 21, 1994 due to a change in condition. The deputy 

commissioner denied his petition, finding that Maggard had 

unjustifiably refused medical treatment recommended by his 

treating physician and had failed to market his residual 
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capacity. 

 Maggard requested review by the full commission. He 

petitioned to reopen the record for additional evidence, a posthearing report by Dr. Jewell stating that Maggard's election not 

to have surgery was a valid decision. The commission held that 

Dr. Jewell's post-hearing report did not qualify as afterdiscovered evidence and denied Maggard's petition to reopen the 

record. The commission further held that Maggard had 

unjustifiably refused recommended surgery. It affirmed the 

opinion of the deputy commissioner. 

 The commission's finding that Maggard unjustifiably refused 

surgery recommended by his treating physician is supported by 

credible evidence in the record. Both Dr. Jewell and Dr. 

McConnell recommended surgery. Had Maggard undergone the 

surgery, he would have been able to resume working sooner, with 

few or no restrictions. His fear of surgery was not sufficient 

justification for refusing necessary medical treatment. 

 The commission did not err in refusing to reopen the record 

to admit Dr. Jewell's post-hearing report. "The standard for 

reviewing petitions to reopen the record to receive afterdiscovered evidence is the same before the commission as it is 

before a trial court." Williams v. People's Life Insurance Co., 

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

the Workers' Compensation Commission 3.3. "The four requirements 

which must be met . . . are that (1) the evidence was obtained 
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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." Id. (citation omitted) (emphasis in original). The 

commission found that Dr. Jewell's report stating, "patient's 

progress certainly indicated that his original decision not to 

proceed with surgery was a valid decision," did not qualify as 

after-discovered evidence under Rule 3.3. Inquiry into whether 

Maggard's refusal to undergo surgery was justified could have 

been made before the hearing. 

 The commission also found that had the report been admitted, 

it would not have produced a different result. The report would 

cure the refusal of surgery because surgery was no longer 

recommended. However, it would not justify the earlier refusal 

of surgery because acceptance of surgery would have produced a 

quicker recovery. The record supports this finding. 

 We need not consider whether Maggard adequately marketed his 

residual capacity. That issue is moot. 

 The decision of the commission is affirmed. 

 Affirmed.