Mildred F. Gravely v. Rappahannock General Hospital ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
MILDRED F. GRAVELY
v. Record Nos. 1784-95-3 MEMORANDUM OPINION * BY
and 0992-95-3 JUDGE LARRY G. ELDER
MAY 7, 1996
RAPPAHANNOCK GENERAL HOSPITAL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lawrence L. Moise, III (Vinyard and Moise,
P.C., on briefs), for appellant.
Linda M. Ziegler (Karen A. Gould; Crews &
Hancock, P.L.C., on briefs), for appellee.
In two separate yet inter-related appeals, Mildred Gravely
(claimant) appeals from the Workers' Compensation Commission's
(commission) denial of her claim for a change in condition and
refusal to reopen the record to allow after-discovered evidence.
Claimant contends that the commission erred (1) in determining
that she did not establish a change in condition and (2) in
refusing to reopen the record to consider after-discovered
evidence. Because the commission did not err in either case, we
affirm its decisions.
I.
FACTS
Claimant sustained a work-related injury by accident while
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
working for the Rappahannock General Hospital (employer) on
January 27, 1992. On December 28, 1992, claimant filed a claim
for benefits alleging an injury by accident. While claimant
received temporary total and temporary partial benefits for
certain periods of disability, the parties agreed that claimant
was physically able to return to her pre-injury employment as of
February 15, 1993. Because claimant returned to full-duty work
on February 15, 1993, yet requested disability benefits from that
date forward, the deputy commissioner treated claimant's December
28, 1992 claim as one for a change in condition. Based on
various medical records from different treating physicians, the
deputy commissioner found on October 15, 1993, that claimant
failed to establish a causal connection between her present
condition and the original accident and denied benefits for any
period after February 15, 1993.
During claimant's appeal to the full commission, Dr. Adnan
Silk performed an MRI on claimant. The results, which were
described in a February 22, 1994 report, revealed that claimant
suffered from degenerative disc disease, scarring, and midline
recurrent disc herniation at L5-S1. A March 16, 1994 letter from
Dr. Silk revealed that claimant continued to suffer from pain and
showed scarring and bulging at L5-S1. Claimant did not attempt
to introduce these records to the full commission before it
decided the appeal from the deputy commissioner.
On May 9, 1994, the commission affirmed the deputy
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commissioner's opinion. After the commission's decision,
claimant continued to receive medical documents from Dr. Silk.
In a letter dated May 23, 1994, Dr. Silk stated that claimant had
been disabled since her original workplace injury and continued
to be disabled. An April 3, 1995 report from Dr. Silk stated
that claimant's current problem "was probably related" to the
original workplace injury.
On appeal, claimant asked the Court of Appeals to remand the
case to the commission so that it could consider the after-
discovered evidence obtained from Dr. Silk. On December 6, 1994,
the Court of Appeals rejected claimant's request, affirmed the
commission's decision, and held that claimant failed to prove
causality. The Court also held that it could not consider
additional medical evidence which had not been before the
commission, as "claimant failed to make a motion on review to the
full commission requesting that it consider after-discovered
evidence."
On December 20, 1994, two weeks after this Court's opinion,
claimant again filed a claim for benefits based on a change in
condition. On February 2, 1995, claimant also filed a petition
to reopen the record to allow after-discovered evidence. The
application and the petition are the subject of these appeals.
On April 7, 1995, the commission denied claimant's petition to
reopen the record to submit the evidence, stating that, "[t]he
evidence that the claimant wishes the Commission to consider as a
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'mistake' is the same after-discovered evidence that the Court of
Appeals had before it and determined was not part of the record
of the case." Claimant appeals this decision to this Court.
On April 12, 1995, an assistant claims examiner rejected
claimant's claim for benefits alleging a change in condition,
stating that the claim was barred by the commission's April 7,
1995 decision and that the commission was foreclosed from
considering any evidence from Dr. Silk. On July 18, 1995, the
commission affirmed the assistant claims examiner's rejection of
claimant's application. Claimant also appeals this decision to
this Court.
II.
AFTER-DISCOVERED EVIDENCE
Rule 1.6(D) of the Rules of the Workers' Compensation
Commission states that, "[o]nly information contained in the file
at the time of the original decision along with the review
request and any response from the opposing party will be
considered. Additional evidence will not be accepted."
Rule 3.3 (former Rule 2(C)) provides an exception to Rule
1.6(D):
No new evidence may be introduced by a
party at the time of review [from the deputy
commissioner's decision] except on agreement
of the parties. A petition to reopen or
receive after-discovered 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
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absolutely necessary and advisable and 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.
This Court reiterated the rules for reviewing petitions to reopen
the record to receive after-discovered evidence in Williams v.
People's Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883
(1995). See Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App.
327, 328-29, 338 S.E.2d 352, 353 (1986).
In this case, claimant did not file a motion to consider the
after-discovered evidence, namely, Dr. Silk's first two medical
reports, before the full commission rendered its May 9, 1994
decision. As this Court held in its December 6, 1994 memorandum
opinion, "[t]he February 22, 1994 MRI results were available to
claimant pending review of the deputy commissioner's decision by
the full commission." Because claimant failed to file the
appropriate motion, "the full commission did not have the
opportunity to consider this issue, [and] we will not consider it
on appeal." The same reasoning guides our holding in this case.
To allow claimant to frustrate Rule 3.3 would be to thwart the
"finality of the decision making process." Charcoal Hearth, 1
Va. App. at 329, 338 S.E.2d at 353.
We recognize that two reports from Dr. Silk, dated May 23,
1994, and April 3, 1995, were obtained after the full
commission's original decision on May 9, 1994. However, as this
Court noted in its December 6, 1994 memorandum opinion, Dr.
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Silk's medical opinions, as contained in these letters, were
available before the full commission's decision. Failure to
obtain medical records that were available does not constitute
due diligence. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App.
601, 614, 401 S.E.2d 200, 207 (1991). Claimant cannot prove that
she could not have obtained Dr. Silk's medical reports prior to
the full commission's decision through the exercise of due
diligence. Furthermore, this record does not disclose the
occurrence of the type of mistake contemplated in Harris v.
Diamond Constr. Co., 184 Va. 711, 36 S.E.2d 573 (1946).
We do not hold that the commission is forever barred from
considering the evidence obtained from Dr. Silk if appropriate
and consistent with the commission's rules in addressing future
applications. However, for reasons described below, Dr. Silk's
evidence could not be used to support claimant's December 20,
1994 change in condition application, now before us on appeal.
III.
CHANGE IN CONDITION
We also hold that the commission did not err in determining
that claimant failed to establish a change in condition.
Claimant attempted to introduce additional medical evidence from
Dr. Silk to refute the opinions of her original treating
physicians that her post-February 15, 1993 complaints were
unrelated to her workplace injury. We are reminded, however,
that "'[a] final judgment based on a determination by the
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commission on the issue of causation conclusively resolves the
claim as to that particular injury. Thereafter, after fraud or
mistake, the doctrine of res judicata bars further litigation on
that claim.'" Mize, 11 Va. App. at 604, 401 S.E.2d at 202
(quoting AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d
879, 881 (1990)). Here, claimant conceded that her condition did
not change since this Court's December 6, 1994 decision.
Based on the foregoing, we affirm the commission's
decisions.
Affirmed.
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BENTON, J., dissenting.
In rejecting Mildred Gravely's application to re-open the
record to consider the report of Dr. Silk, the commission ruled
that this Court's decision in Gravely v. Rappahannock General
Hospital, Record No. 0974-94-3 (Memorandum op., December 6,
1994), barred it from considering that evidence. It did not.
This Court stated that the evidence would not be considered on
appeal "since the full commission did not have the opportunity to
consider this issue." That ruling did not preclude Gravely from
asking the commission to consider the evidence and did not
preclude the commission from determining whether under its rules
the evidence could now be timely offered. The commission simply
misread this Court's opinion. Therefore, I would reverse the
commission's decision and remand for reconsideration.
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