Debra Levy v. Wegmans Food Markets, Inc. ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Humphreys and O’Brien
Argued at Fredericksburg, Virginia
PUBLISHED
DEBRA LEVY
OPINION BY
v. Record No. 1634-17-4 JUDGE ROBERT J. HUMPHREYS
APRIL 3, 2018
WEGMANS FOOD MARKETS, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
M. Thomas McWeeny (Koonz, McKenney, Johnson, DePaolis &
Lightfoot, L.L.P., on briefs), for appellant.
Alex M. Mayfield (Franklin & Prokopik, P.C., on brief), for appellee.
On September 7, 2017, the Virginia Workers’ Compensation Commission (“the
Commission”) denied Debra Levy’s (“Levy”) compensation claim. On appeal, four of Levy’s
five assignments of error essentially restate her basic argument that the Commission erred in
applying both the claim and issue preclusion aspects of the doctrine of res judicata1 to her
compensation claim. Levy’s fifth assignment of error asserts that the Commission’s erroneous
understanding of res judicata deprived her of her due process rights under the Fourteenth
Amendment to the United States Constitution.
I. BACKGROUND
Levy, an employee of Wegmans Food Markets, Inc. (“Wegmans”) damaged her right
knee, which had pre-existing arthritis, in a June 26, 2011 incident where she slipped and fell in
1
Res judicata, “a thing adjudicated,” is a doctrine which prevents rehearing of a matter
by the courts following a final judgment, it is further discussed below.
the back of Wegmans’s walk-in freezer. This injury required surgery, a partial medial
meniscectomy. Levy filed a number of claims related to this injury over a protracted period.
The claim at issue was filed on April 29, 2015, seeking approval of arthroscopic knee
surgery, proposed by Levy’s doctor, Dr. John Stanton (“Dr. Stanton”), and protective disability
claims continuing from January 29, 2015. In a September 21, 2015 review opinion the full
Commission found
no indication in Dr. Stanton’s records that the claimant’s
compensable injury is playing a role in any disability which [Levy]
may have . . . . The surgery he is contemplating clearly appears to
be related solely to the claimant’s arthritis, which was at an
advanced stage even before the compensable accident.
The day following the decision of the Commission, Levy requested an evidentiary
hearing for the surgery and related disability. On December 30, 2015, Levy filed “new” claims
for a 27% permanent partial disability to the right leg, and added “aggravation/acceleration of
[her] right knee arthritis as a compensable consequence of the June 26, 2011 injury.” Levy
deposed Dr. Stanton on January 7, 2016. In this deposition Dr. Stanton stated that the partial
meniscectomy following the 2011 incident had accelerated the degenerative condition of her
knee and that his proposed surgery was necessary and causally related to her 2011 injury.
This evidence for the surgery and the “new” claims was heard before a deputy
commissioner on May 19, 2016. The deputy commissioner requested that the parties brief why
the claims were not barred by the doctrine of res judicata based on the September 21, 2015
review opinion. This request caused Levy to withdraw the total disability claims and proceed
only on the partial disability and surgery claims. The requested briefs were provided, and the
deputy commissioner found that the partial disability and surgery-related claims were barred by
the doctrine of res judicata. The deputy commissioner also found the aggravation/acceleration
claim barred by res judicata.
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Levy sought review of this decision by the full Commission. Oral argument before the
Commission occurred on August 16, 2017, where Levy argued that the claim was a new
compensable consequence claim which had not been litigated. The full Commission affirmed
the deputy commissioner’s opinion on September 7, 2017, leading Levy to seek reconsideration,
which was denied. Levy subsequently appealed the Commission’s decision to this Court on
October 5, 2017.
II. ANALYSIS
A. Standard of Review
Whether a claim or issue is precluded by res judicata principles is a question of law
which we review de novo. See Rhoten v. Commonwealth, 286 Va. 262, 267, 750 S.E.2d 110,
112 (2013). “‘The doctrine of res judicata is applicable to decisions of deputy commissioners
and the full commission. . . . [and] “precludes the re-litigation of a claim or issue once a final
determination on the merits has been reached.’”” Pruden v. Plasser Am. Corp., 45 Va. App. 566,
573, 612 S.E.2d 738, 742 (2005) (quoting Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App.
119, 128, 510 S.E.2d 255, 259 (1999) (en banc)).
B. Res Judicata in General
The doctrine of res judicata is based upon the practical necessity for court judgments
resolving legal disputes to be final so that the parties may rely upon them going forward and
refers to the preclusive effect on future litigation of a final judgment already rendered, this effect
is bifurcated into claim preclusion and issue preclusion categories. See Taylor v. Sturgell, 553
U.S. 880, 892 (2008). Claim preclusion “bars ‘successive litigation [between the same parties]
of the very same claim, whether or not relitigation of the claim raises the same issues as the
earlier suit.’” Brock v. Voith Siemens Hydro Power Generation, 59 Va. App. 39, 45, 716 S.E.2d
485, 488 (2011) (quoting Taylor, 553 U.S. at 892). Claim preclusion extends beyond the
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presented claim itself to include “those [claims] ‘incident to or essentially connected with the
subject matter of the litigation, whether the same, as a matter of fact, were or were not
considered.’” Id. at 46, 716 S.E.2d at 488 (quoting Lofton Ridge, LLC v. Norfolk S. Ry., 268
Va. 377, 381, 601 S.E.2d 648, 650 (2004)). Claim preclusion is governed by Rule 1:6 of the
Rules of the Supreme Court of Virginia:
A party whose claim for relief arising from identified conduct, a
transaction, or an occurrence, is decided on the merits by a final
judgment, shall be forever barred from prosecuting any second or
subsequent civil action against the same opposing party or parties
on any claim or cause of action that arises from that same conduct,
transaction or occurrence, whether or not the legal theory or rights
asserted in the second or subsequent action were raised in the
prior lawsuit, and regardless of the legal elements or the evidence
upon which any claims in the prior proceeding depended, or the
particular remedies sought.
(Emphasis added).
The issue preclusion component of the doctrine of res judicata bars re-litigation between
the same parties of “any issue of fact actually litigated and essential to a valid and final personal
judgment in the first action.” Brock, 59 Va. App. at 45, 716 S.E.2d at 488 (quoting Rawlings v.
Lopez, 267 Va. 4, 4-5, 591 S.E.2d 691, 692 (2004)).
Levy’s assignments of error address both res judicata as a whole and claim preclusion
specifically. She argues that the Commission erroneously considered issue preclusion in what
was a claim preclusion analysis. However, the Commission’s September 7, 2017 opinion
addressed her successive surgery claims using both an issue preclusion and claim preclusion
analysis. The Commission found that, while the surgery had not been a claim considered by the
Commission at the previous hearing, the “medical evidence supporting the need for that surgery
was fully considered” and as a result “the concept of issue preclusion bars reconsideration of
whether the need for surgery is causally related.” Further, the Commission agreed with Levy
that whether her “pre-existing arthritis was aggravated as a compensable consequence of her
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June 26, 2011 injury” was “a new issue not previously litigated” but that this claim was still
barred by claim preclusion because no evidence was presented which could not have been
presented at the previous hearing.
Levy argues that the Commission’s claim preclusion analysis is in error because had she
attempted an aggravation/acceleration claim prior to this deposition, it would have lacked
sufficient evidence, Dr. Stanton’s deposition, to succeed. The situation is analogous to Brock
where the claimant failed to present sufficient evidence to fully support his claims.
In Brock, the claimant sought “benefits for injuries to his shoulder, back, and hips,”
which was later amended to include additional injuries to his head and leg. Id. at 42, 716 S.E.2d
at 486. The claimant was notified by the Commission that a hearing would be held to address
“all issues.” Id. At this hearing, the claimant produced no evidence of injuries to any body part
but his left shoulder. The claimant later attempted to bring “new” claims for injuries to his back,
hip, and legs from the same accident. Id. at 43, 716 S.E.2d at 486. We reiterated Virginia’s
“could-have-litigated-should-have-litigated principle” as applied to compensation claims, which
holds that claim preclusion bars not only the claims made in the pleadings but any claim which
“‘incident to or essentially connected with the subject matter of the litigation, whether the same,
as a matter of fact, were or were not considered.’” Id. at 46, 716 S.E.2d at 488 (quoting Lofton
Ridge, LLC, 268 Va. at 381, 601 S.E.2d at 650).
Levy attempts to distinguish Brock on the basis that the claimant in Brock failed to
reserve the issues before the Commission. Levy did not reserve the causation issue either, but
claims that she did not have to because it was “new” and therefore not before the Commission at
the time. Levy describes the issue as new because she did not have the evidence to support it
until she deposed Dr. Stanton. Levy also argues that her arthritis is a “new” issue because it was
introduced as a defense by Wegmans.
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Regardless of who raised the issue, the Commission addressed causation. Levy cites no
case law or other authority which considers the party raising an issue as a component of a res
judicata analysis. The Commission noted in its September 21, 2015 opinion that Levy’s
“pre-existing arthritic condition could have been aggravated by the compensable injury and
subsequent surgery, but that there was no medical opinion before it to support such a finding.”
Therefore, neither the issue of causation nor the evidence relayed in Dr. Stanton’s deposition,
concerning a condition which predated the initial 2011 injury, may be fairly categorized as
“new.”
Levy states that she did not depose Dr. Stanton at an earlier date because it is an
expensive process. If the claimant chooses not to gather as much medical information as is
necessary for the Commission to make a determination, they are gambling with their chances of
success; an unwise decision, and a decision in which the courts will not act as underwriters.
“Where an application for a change in condition is filed for the sole purpose of presenting
additional evidence in support of a claim that has previously been denied, res judicata will bar
reconsideration of the claim.” Fodi’s v. Rutherford, 26 Va. App. 446, 448, 495 S.E.2d 503, 504
(1998).
Levy’s case is likewise similar to AMP, Inc. v. Ruebush, 10 Va. App. 270, 391 S.E.2d
879 (1990), where the claimant filed a change in condition claim which was denied for failing to
establish a definite causal connection. When this claim was denied, the claimant gathered more
medical evidence from her physician and filed a second claim, which the Commission granted.
This Court reversed, finding “that it was error for the deputy commissioner and the full
commission to rehear the same claim on the issue of causation after final judgment had been
entered denying Ruebush’s application for reinstatement of benefits.” Id. at 275, 391 S.E.2d at
882.
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Levy argues that the claimant in Ruebush was estopped from using the medical evidence
to prove causation because the Commission denied her motion to keep the record open for
gathering additional medical evidence on the first change in condition claim, while Levy made
no such motion and sought no such evidence. In other words, Levy essentially argues because
she did not attempt to gather the evidence, the Commission did not rule on her ability to do so,
and she therefore should have a second chance at proving causation. This “better to beg
forgiveness than ask permission” theory of procedure would incentivize gamesmanship. Were
this approach authorized it would quickly lead to claimants seeking only piecemeal evidence
supporting a select and narrow theory of causation, in the full knowledge that should this theory
fail, they will have other opportunities so long as the Commission or court is unaware they have
alternative theories. Such a carefully cultivated willful ignorance with a goal of guaranteeing
additional attempts to prove a claim is antithetical to the purpose of res judicata, which “protects
not only parties from having to try the same case twice but also society from having to pay the
institutional cost of adjudicating needlessly fragmented litigation.” Funny Guy, LLC v. Lecego,
LLC, 293 Va. 135, 142, 795 S.E.2d 887, 890 (2017).
C. Due Process
Finally, Levy argues that her due process rights were violated by the Commission’s
confusion of claim preclusion and issue preclusion. Levy argues this confusion prevented her
from filing compensable consequence claims related to her pre-existing arthritis. Any confusion
here is attributable to Levy, not the Commission. We reiterate that the Commission properly
addressed both claim and issue preclusion and that an application of res judicata does not violate
due process as that has already been provided by the prior litigation opportunity but, rather, “is a
fundamental concept in the organization of every jural society.” Funny Guy, LLC, 293 Va. at
142, 795 S.E.2d at 890.
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III. CONCLUSION
The Commission’s September 21, 2015 determination that there was no medical evidence
causally linking Levy’s workplace injury to her arthritis was not an invitation for Levy to create
this evidence and “take another swing,” but rather a plain statement that no such evidence had
been presented at the hearing. At that hearing, Levy had the opportunity to offer evidence of
causation for the contemplated surgery, she chose not to, and to reward her with another
opportunity to do so would incentivize piecemeal litigation, undermine the finality of judgments,
and multiply the number of proceedings - the very evils the doctrine of res judicata was
developed to address. Consequently, the Commission’s judgment is affirmed.
Affirmed.
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