Aramark Corp.& National Reliance Ins. v. VA Terry ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
ARAMARK CORPORATION AND
NATIONAL RELIANCE INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0921-99-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 14, 2000
VIRGINIA I. TERRY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Cecil H. Creasey, Jr;
Sands, Anderson, Marks & Miller, on briefs),
for appellants.
(Thomas J. Schilling, on brief), for
appellee. Appellee submitting on brief.
Aramark Corporation and its insurer, Reliance National
Insurance Company ("appellants") appeal from a decision of the
Workers' Compensation Commission awarding temporary partial
disability benefits ("TPD") to Virginia I. Terry. On appeal,
appellants contend 1) that Terry failed to establish a change in
condition warranting TPD for the period claimed; 2) that the
commission erroneously found that Terry established a causal
connection between her claimed disability and the compensable
injury she sustained; and 3) that the doctrine of res judicata
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
bars Terry's claim. We agree, and reverse the commission's
decision.
BACKGROUND
Terry was employed by Aramark at Randolph-Macon College in
Ashland, Virginia as a food service worker. While on the job,
she suffered an injury to her lower back and left knee on May
16, 1996. Immediately following her accident, Terry sought
treatment with Dr. Kimberly Smith, who diagnosed her as
suffering from a lumbar sprain and a sprained knee. Dr. Smith
noted that Terry had a prior history of back problems and a
previous injury to her left knee. On May 21, 1996, Dr. Smith
referred Terry to Dr. Steven Fiore, who met with Terry on May
23, 1996 and again on June 13, 1996. Dr. Fiore, in turn,
referred Terry to Dr. William Brickhouse, who examined Terry on
June 24, 1996, and also took note of her prior back and knee
problems.
On September 10, 1996, Dr. Brickhouse reported some
improvement in Terry's condition and authorized her return to
work on a Functional Capacity Evaluation form. He noted that
Terry had worked under certain physical restrictions even prior
to her accident and that he believed she could work "at least
[at] that level." He completed a "work status report" in which
he stated that Terry could work from six to eight hours per day.
Later, on June 12, 1997, Dr. Brickhouse reported that Terry's
- 2 -
total period of disability was from May 23, 1996 through
September 19, 1996, at which time she was capable of returning
to work and performing her pre-injury duties. Even on June 17,
1997, however, Dr. Brickhouse noted that Terry continued to
suffer from "lumbar disc derangement and synovitis [of] both
knees."
On January 8, 1997, Terry filed a claim seeking an award of
temporary total disability benefits ("TTD") beginning on May 16,
1996, the date of the accident. At a hearing before the deputy
commissioner on June 17, 1997, Terry amended her claim by
dropping her demand for continuing disability benefits. Instead
she sought TTD for a period ending on February 2, 1997. The
deputy commissioner issued an opinion on July 22, 1997, awarding
Terry TTD for the period from May 17, 1996 through August 15,
1996, and also for the period from November 6, 1996 through
November 11, 1996. Terry also was awarded TPD for the period
from November 12, 1996 through February 2, 1997. Appellants
then sought review from the full commission.
Upon review, Terry agreed to a stipulation that the
disability she experienced during the period from November 6,
1996 through February 3, 1997 was not causally connected to her
accident of May 16, 1996. The commission accepted this
stipulation, affirmed Terry's award of benefits through August
- 3 -
15, 1996, and reversed the award of benefits for the period of
November 6, 1996 through February 2, 1997.
On June 17, 1997, Terry filed a second claim in which she
alleged a change in condition, and requested ongoing TTD for a
period beginning on March 27, 1997 and continuing indefinitely.
The deputy commissioner heard argument on October 6, 1998, in
which appellants contended that Terry was not disabled during
the period alleged, that any disability she may have experienced
during that time was not causally related to her injury, and
that the relief she sought was barred by her stipulation in the
prior claim. Terry responded that she had experienced a change
in condition in the period specified in her claim and that she
was not barred by her earlier stipulation. Although the
commissioner found that Terry was only partially disabled for
the period in question, he nevertheless ruled that Terry had
established a change in condition and that she was not barred by
res judicata as a result of her previous stipulation, and
awarded her TPD for the specified period. The full commission
affirmed these conclusions, and appellants noted their appeal to
this Court.
ANALYSIS
Appellants argue that Terry cannot establish a change in
condition for the period beginning March 27, 1997 because the
evidence upon which she relies is a letter from Dr. Brickhouse
- 4 -
of May 8, 1997, a document introduced as evidence at the hearing
on her first claim. Because she stipulated at the hearing that
her disability at that time was not causally related to her
industrial accident, appellants contend that Terry cannot rely
upon the letter to evidence a "change in condition" with respect
to the period beginning on March 27. We agree.
Code § 65.2-101(4) defines a "change in condition" as "a
change in physical condition of the employee as well as any
change in the conditions under which compensation was awarded,
suspended, or terminated which would affect the right to, amount
of, or duration of compensation." See Fodi's v. Rutherford, 26
Va. App. 446, 448, 495 S.E.2d 503, 504 (1998). King's Market v.
Porter, 227 Va. 478, 317 S.E.2d 146 (1984), controls the
determination of whether Terry's claim qualifies under Code
§ 65.2-101(4) as a "change in condition" sufficient to warrant a
resumption of disability benefits. In King's Market, the
Virginia Supreme Court set forth a two-pronged test for
reinstating disability benefits where the employer seeks to
terminate benefits on a change of condition application because
the disability has ceased.
[T]he only question is whether the
employee's prior condition of work
incapacity has changed; the question of
causal connection is not an issue. On the
other hand, when an employee files an
application for reinstatement of disability
benefits, two questions arise: 1) has there
been a change in the employee's capacity to
- 5 -
work; 2) if so, is the change due to a
condition causally connected with the injury
originally compensated.
Id. at 483, 317 S.E.2d at 148; see Hercules, Inc. v. Carter, 13
Va. App. 219, 223, 409 S.E.2d 637, 639-40 (1991).
Terry's change in benefit status clearly fails the first
prong of the test. The only change she has asserted is that she
"went from a period of not receiving workers' compensation to a
change in that condition, as she sought temporary total
disability beginning March 27, 1997." Such a change in benefit
status has no bearing upon the claimant's capacity to work.
Furthermore, Terry's disability failed to satisfy the second
prong of the King's Market test. Nothing in Terry's medical
records after the date of the hearing on the first claim
demonstrates a "change due to a condition causally connected
with the injury" for which she originally sought compensation.
King's Market, 227 Va. at 483, 317 S.E.2d at 148. Indeed, Dr.
Brickhouse outlined the history of Terry's treatment with him in
a letter to the commission, dated May 8, 1997, and confirmed
that as of the date of the letter Terry continued to experience
back and knee pain which he attributed to 1) degenerative disc
and joint disease of the lumbar spine, and 2) mild degenerative
changes in her knees. Dr. Brickhouse also stated in a note
dated June 17, 1997, that Terry complained of continued knee
pain, and he reported that she had not returned to work since
- 6 -
November, 1996, because of her knee and back problems. Terry's
statements, reported by Dr. Brickhouse, demonstrate that her
disability following March 27, 1997 was the same as that which
she experienced in the period from November, 1996 through
February 2, 1997, which, by stipulation, she conceded was not
causally connected to her industrial accident. Her condition
therefore remained unchanged from the first period to the
second.
Finally, Terry's claim of disability in the second
proceeding is barred by the doctrine of res judicata. See
Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128,
510 S.E.2d 255, 259 (1999) (en banc) (res judicata applies to
decisions of the commission); Allegheny Airlines, Inc. v.
Merillat, 14 Va. App. 341, 343-44, 416 S.E.2d 467, 469 (1992)
(where claims relate to different periods of time and the claim
in the second proceeding is supported by different evidence than
was offered in the first proceeding, res judicata does not
apply).
Although Terry's second claim relates to a different period
of time than that claimed in the first proceeding, the medical
evidence she offered in the second proceeding was identical to
that offered in the first proceeding, viz. the May 8, 1997
letter from Dr. Brickhouse. Her claim is thus barred by res
- 7 -
judicata. See Merillat, 14 Va. App. at 343-44, 416 S.E.2d at
469.
For the foregoing reasons, we reverse the decision of the
commission.
Reversed.
- 8 -