Rickey A. Maggard v North Fork Coal Corp., et al.

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 post-
hearing 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 after-
discovered 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 after-
discovered 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.