Mohammed Boukhira v. George Mason University/Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Felton
UNPUBLISHED
Argued by teleconference
MOHAMMED BOUKHIRA
MEMORANDUM OPINION BY
v. Record No. 0204-15-4 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 8, 2015
GEORGE MASON UNIVERSITY/
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Benjamin J. Trichilo (McCandlish Lillard, on briefs), for appellant.
Scott John Fitzgerald, Senior Assistant Attorney General (Mark R.
Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney
General; Ronald N. Regnery, Senior Assistant Attorney General, on
brief), for appellee.
Mohammed Boukhira, (claimant), appeals the decision of the Commission finding that
his March 12, 2014 claim for permanent partial disability (PPD) benefits is barred by the
doctrine of res judicata. Claimant’s appeal details eight separate assignments of error which can
be summarized as follows: (1) the Commission’s July 12, 2013 opinion was not a final
adjudication on the merits of claimant’s right to PPD benefits so as to implicate the doctrine of
res judicata, (2) the Commission’s July 12, 2013 opinion, which stated that claimant could
re-file his claim within the statutory period, as well as its January 13, 2014 letter, which
dismissed claimant’s second application without prejudice, implied and caused claimant to
detrimentally rely on those orders in his belief that the Commission retained jurisdiction over
claimant’s PPD claim, thus, entitling him to refile his claim for PPD benefits, and (3) the

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commission erred in finding that claimant failed to provide sufficient evidence to prosecute his
PPD claim based upon a change in condition.
BACKGROUND
Claimant, a computer technician, was injured on February 20, 2007. According to
claimant, he was leaving the Commerce Building at George Mason University (employer) to
enter his vehicle when he stepped on a steel utility cover located in a landscaped area. When
claimant stepped on the utility cover, due to it not being properly secured, his left leg fell into the
hole causing his back to strike the side of the manhole. As a result, claimant alleged that he
suffered right lower leg and back pain.
On July 30, 2009, the Commission entered an order indicating that the matter in
controversy had been resolved by an agreed award order, which provided that the parties agreed
that claimant sustained a compensable lower-back injury at an average weekly wage of $994.88
per week. As a result, employer agreed to pay claimant $663.25 per week in temporary partial
disability benefits.
Between August 17, 2010 and August 16, 2011, claimant and employer entered into
several supplemental agreements to pay benefits as well as termination of wage loss awards.
On February 24, 2012, claimant was examined by Dr. Salter, an orthopedic surgeon.1
Dr. Salter’s evaluation provided that in his opinion, claimant suffered a L5 spondylolysis
unilateral on the left as indicated by a lumbar spine CT dated August 20, 2008. Dr. Salter stated
that claimant had “reached maximum medical improvement” and using the Fifth Edition of the
AMA Guide to Evaluation of Permanent Impairment, rated an “11% impairment of the left lower
1
Claimant was also examined and treated by Dr. Schuler, Dr. Alexander, and
Dr. Moshirfar. However, none of these doctors rated claimant’s injury for PPD and, thus, their
evaluations and diagnosis are irrelevant to this appeal.
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extremity as a result of the injury sustained on February 20, 2007, within a reasonable degree of
medical certainty and probability.”
On March 2, 2012, claimant filed an application for hearing requesting entry of an order
awarding PPD benefits with the Commission based on the 11% disability rating provided by
Dr. Salter. Claimant’s hearing was held on September 17, 2012. Claimant testified to the events
on the day of his injury, his treatment with a Dr. Schuler, and stated that his left leg would
frequently “give out.”2 Claimant also filed Dr. Salter’s medical evaluation with the Commission
in support of his claim.
The deputy commissioner issued an opinion on September 27, 2012, finding in favor of
claimant and ordering employer to pay claimant PPD benefits based upon an 11% loss of use of
the left leg at the weekly rate of $663.26 commencing on February 24, 2012, and continuing for
a period of 19.25 weeks. The deputy commissioner further ordered that medical benefits
continue for as long as necessary and awarded claimant costs and fees.
On October 16, 2012, employer filed its request for review by the full Commission.
Employer argued that the deputy commissioner erred because his award was based on pain only
and that there was no evidence presented that the “pain interfered with [claimant’s] functional
use of the member or his ability to work.” In response, claimant argued that the evidence
supported the deputy commissioner’s ruling because claimant proved that he sustained
permanent loss of use of the left lower extremity due to his February 20, 2007 lower back injury.
Further, that claimant’s evidence showed that his injuries restricted his ability to work;
specifically his ability to walk, stand, or lift heavy objects.
2
Dr. Schuler is employed with the Virginia Spine Institute. He performed a series of
spinal injections on the claimant. Dr. Schuler noted that claimant had polio, which resulted in a
leg length discrepancy which further aggravated claimant’s ambulation. Dr. Schuler ultimately
suggested spinal surgery. His diagnosis is not relevant to this appeal as his diagnosis/evaluation
did not contain a disability rating.
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On July 12, 2013, the Commission issued its opinion reversing the decision of the deputy
commissioner. The Commission found that there was no evidence on the record to show that
claimant suffered a PPD to his left leg. The Commission opined that Dr. Salter’s physical
examination did not reveal any loss of use and that there was “no reason [for the Commission] to
credit Dr. Salter’s opinion solely because it [was] the only opinion of PPD.” The Commission
also found that claimant’s testimony was insufficient to substantiate a claim of ongoing loss of
use of his left leg. The Commission “removed [the matter] from the Review Docket” and stated
in its order, “Claimant has the right to appeal this decision to the Court of Appeals of Virginia by
filing a Notice of Appeal with the Commission and a copy of the Notice of Appeal with the
Court of Appeals of Virginia within 30 days of the date of the opinion.”
Claimant did not appeal the Commission’s decision. Rather, on August 7, 2013, claimant
filed a letter of application of hearing requesting an award of PPD benefits for his “left lower
extremity.” The letter stated “[t]his APPLICATION is filed for record purposes to allow the
Commission to retain jurisdiction. A hearing will be requested at a later date.” On November
25, 2013, employer filed a motion to dismiss claimant’s August 7, 2013 application.
Employer argued that the motion should be dismissed because claimant failed to file any
supporting medical records within 90 days of the initial filing date. Commission Rule 1.3.3
Claimant responded arguing that all medical evidence had been filed and was already in the
Commission file at the time of the August 7, 2013 application. Specifically, claimant referred to
Dr. Salter’s report. Employer argued that the Commission found Dr. Salter’s February 24, 2012
rating to be “defective as a matter of law.” Therefore, no medical records were present to
support claimant’s pending PPD claim. Further, employer argued that even if claimant were to
3
Rule 1.3 reads: “Dismissal Upon Failure to File Supporting Evidence. If supporting
evidence is not filed within 90 days after an employee’s claim is filed, it may be dismissed upon
motion of the employer after notice by the Commission to the parties.”
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rely on Dr. Salter’s records, his claim was barred by res judicata. Lastly, employer argued that
without evidence, the claim should be dismissed. In his surrebutal, claimant argued that the
Commission did not find Dr. Salter’s findings to be a nullity, but rather, found that further
explanation was needed to support a rating based upon claimant’s “ongoing S1 distribution
pain.” Claimant also argued that while the Commission reversed the deputy commissioner’s
ruling, it did not dismiss claimant’s claim for PPD benefits.
On January 13, 2014, the deputy commissioner sent a letter to counsel. The letter
provided in relevant part:
The full Commission concluded that based on “the holdings in
Washington Metro. Area Transit v. Rogers and Young v. Laurel
Park Hardware/Auto, [Dr. Salter’s PPD] rating [was] defective as a
matter of law.”
In the written statement submitted by the [claimant] in
support of his request for review, Dr. Salter’s February 24, 2012,
rating is the specific evidence he relied upon. While there is
mention of other medical examinations . . . the full Commission
found Dr. Salter's opinion, which the Commission rejected, to be
the “only opinion of permanent partial disability.”
The [claimant’s] position in opposition to the [employer’s]
motion to dismiss can be stated simply: having failed to produce
compelling evidence initially, or to convince the Commission on
review that he had done so, the [claimant] should have yet another
opportunity to find evidence necessary to an award on this
particular claim and that the [C]ommission should retain
jurisdiction while he attempted to do so. There is no legitimate
argument for that position.
Therefore, pursuant to Rule 1.3, the motion to dismiss
[claimant’s] August 7, 2013, claim, without prejudice, submitted
by [employer] is hereby GRANTED, with leave to the Claimant to
refile his claim within the period provided by law.
A request for review may be filed with the Clerk of the
Commission no later than thirty (30) days from the date of this
letter order.
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On January 14, 2014, claimant appealed the deputy commissioner’s January 13, 2014
ruling to the full Commission. Claimant argued that the deputy commissioner erred in granting
the motion to dismiss because it precluded claimant from being awarded PPD benefits. Claimant
also contended that the deputy commissioner erred by failing to follow Commission case law
holding that a claim for PPD benefits is timely filed when the claimant presents “some evidence
of a permanent functional disability within the statutory period.” Further, that the deputy
commissioner erred by finding that Dr. Salter’s report provided insufficient evidence of a
permanent functional disability. Lastly, claimant argued that the Commission’s finding that the
rating of Dr. Salter was “defective as a matter of law” was not intended to deprive the claimant
of his right to forever claim PPD due to his work-related injury.
On February 12, 2014, the Commission issued an opinion in response to claimant’s
January 14, 2014 appeal. The Commission acknowledged that it frequently retains jurisdiction
over timely-filed claims for permanency where a party has not yet reached maximum medical
improvement. The Commission opined however, that it found no justification for retaining
jurisdiction over claimant’s claim where, during the period of limitations, claimant had reached
maximum medical improvement, was at liberty to prosecute his claim, and did in fact prosecute
his claim. For this reason, the Commission declined to retain jurisdiction and affirmed the
deputy commissioner’s January 13, 2014 ruling.
On March 12, 2014, claimant filed another application for hearing requesting an award of
PPD benefits based on a 24% disability rating of the left lower extremity provided by a report
from a Dr. Charles Jackson.  Dr. Jackson’s report provided in relevant part: (1) claimant had
reached maximum medical improvement, (2) claimant’s symptoms were consistent with
radiculopathy of the left lower extremity, and (3) claimant had limited lumbar flexion, forward
flexion, and inability to perform full leg raises. Dr. Jackson diagnosed claimant with
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“[i]ntervertebral disk herniation, associated with spondylolysis with unresolved radiculopathy
left lower extremity due to injury on February 20, 2007.” In turn, Dr. Jackson concluded that
claimant suffered from a 24% permanent partial impairment of his left lower extremity due to the
injury he suffered on February 20, 2007.
Dr. Jackson then discussed Dr. Salter’s findings. Dr. Jackson’s report provided in part:
There has been no significant improvement in
Mr. Boukhira’s condition [since his IME with Dr. Salter]. He has
learned to tolerate discomfort about his low back but must limit
activities with left leg pain or numbness and weakness renders him
unstable in everyday activities.  If he is careful to heed warning
signals of pain he can prevent progressive weakness.
Dr. Jackson’s report further stated that he did “not agree with Dr. Salter in his report
dated February 24, 2012,” and noted that he would “amend” various findings in Dr. Salter’s
report regarding claimant’s muscle testing, motor weakness, and reports of pain. Dr. Jackson
speculated as to the basis for Dr. Salter’s 11% impairment rating and overall disagreed with his
evaluation, description, and rating of claimant’s injury, symptoms, and impairment rating.
On April 28, 2014, claimant filed a position statement with an attached memorandum of
law contending that his claim was not barred by res judicata. Claimant argued that because there
was no prior adjudication on the merits and because the prior dismissal of his claim was without
prejudice, he was not precluded from filing a subsequent claim for PPD benefits for the injuries
he sustained as a result of the February 20, 2007 incident. Employer responded on April 30,
2014, arguing first, that claimant’s claim was barred by res judicata because claimant failed to
produce sufficient evidence at the September 17, 2012 hearing to show a PPD, and second, that
Dr. Jackson failed to opine that claimant was suffering an ongoing loss of use of his left leg.
Claimant responded on May 12, 2014, arguing that res judicata did not apply because there was
no final and binding adjudication on the issue of permanent disability; specifically, the
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Commission dismissed claimant’s first claim without prejudice. Second, claimant argued that
pursuant to, and in reliance upon the Commission’s prior opinion, the claimant filed his present
claim on March 12, 2014, which was prior to the March 29, 2014 statutory deadline specified in
the order. Lastly, claimant contended that res judicata did not apply because claimant had
suffered a change in condition.
On July 11, 2014, the deputy commissioner concluded that res judicata applied because
the claimant elected to have his claim heard and lost on the merits. Specifically, the deputy
commissioner noted, “[t]he fact that the evidence did not ultimately suffice to meet [claimant’s]
burden of proof does not make the claim any less ripe for adjudication, nor does it negate the fact
that the claim was adjudicated on its merits.” “To the extent [the Commission is] asked to
consider any disability present at the time of the last hearing, the claimant essentially seeks
another opportunity to prove that case. This inefficiency is exactly what the preclusive doctrines
seek to avoid.” Claimant’s claim for PPD benefits was ripe for adjudication when claimant
reached maximum medical improvement. Claimant obtained a rating and sought a hearing on
the merits of his claim before the Commission on the issue of PPD. The issue was actually
litigated, and a final decision was reached. The deputy commissioner also concluded that
claimant did not meet the standard to show a change in condition noting that nothing in
Dr. Jackson’s report indicated that claimant’s condition had changed or deteriorated since seeing
Dr. Salter. For these reasons, the deputy commissioner denied claimant’s request for hearing and
dismissed the matter with prejudice.
On July 21, 2014, claimant filed his request for review by the full Commission on nearly
identical grounds as his appeal to this Court. On September 8, 2014, employer filed its response
to claimant’s memorandum and made nearly identical arguments to those it now makes to this
Court.
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On January 28, 2015, the Commission issued its opinion affirming the decision of the
deputy commissioner. The Commission opined that claimant filed two claims seeking PPD
benefits. The Commission noted the following: (1) on September 17, 2012, claimant’s claim for
PPD benefits was ripe as the parties stipulated that claimant had reached maximum medical
improvement, (2) claimant testified and introduced medical evidence in support of his claim,
(3) by opinion dated July 12, 2013, the majority of the Commission found the claimant’s medical
evidence in support of his PPD claim to be “defective as a matter of law” and reversed the award
entered by the deputy commissioner, (4) neither party appealed the Commission’s July 12, 2013
opinion, and (5) a second PPD claim was filed August 7, 2013.
This appeal followed.
ANALYSIS
I. THE COMMISSION DID NOT ERR IN CONCLUDING THAT ITS JULY 12, 2013 OPINION WAS A
FINAL DECISION ON THE MERITS, AND THUS, CORRECTLY APPLIED THE DOCTRINE OF
RES JUDICATA
Claimant argues that the Commission’s opinion dated July 12, 2013, was not a final order
because the Commission ruled that claimant’s evidence was deficient “as a matter of law” and
merely needed “further explanation” to “support a rating,” and thus, the Commission erred in
applying the doctrine of res judicata to claimant’s March 12, 2014 PPD claim. We disagree.
On appeal, this Court views the evidence in the light most favorable to the prevailing
party below. See R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990). The determination of res judicata is a question of law and is reviewed de novo.
Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127-28, 510 S.E.2d 255, 259 (1999) (en
banc); Pruden v. Plasser Am. Corp., 45 Va. App. 566, 573, 612 S.E.2d 738, 742 (2005).
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Where, as here, an employee suffers the loss of use of a scheduled
body member, the compensation provided by [Code § 65.2-503]4 is
not awardable “until the injury has reached a state of permanency,
i.e. maximum improvement, when the degree of loss may be
medically ascertained.” In other words, before [Code § 65.2-503]
benefits are awardable, it must appear both that the partial
incapacity is permanent and that the injury has reached maximum
medical improvement.
Brown v. United Airlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d 521, 523 (2001) (quoting
County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)); see also
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 678-79, 401 S.E.2d 213, 215 (1991).
To recover PPD benefits, the claimant bears the burden of establishing by a preponderance of the
evidence the existence of a disability that is the consequence of the injury by accident. Hobson,
11 Va. App. at 678, 401 S.E.2d at 215 (citing Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.
374, 387, 363 S.E.2d 433, 440 (1987); Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341 S.E.2d
394, 395 (1986)).
Claimant’s PPD claim was ripe for adjudication at the time of the September 17, 2012
hearing. On February 24, 2012, claimant obtained a medical evaluation from Dr. Salter stating
that he had reached maximum medical improvement. On March 2, 2012, claimant filed a claim
for PPD benefits based in part on Dr. Salter’s conclusion that he had reached maximum medical
improvement and suffered from an 11% impairment to his left lower extremity. At the
September 17, 2012 hearing, the parties stipulated that claimant had reached maximum medical
improvement. Therefore, claimant’s claim for PPD benefits was ripe for adjudication at that
time. Brown, 34 Va. App. at 277, 540 S.E.2d at 523; Hobson, 11 Va. App. at 678-79, 401 S.E.2d
at 215.
4
Code § 65.2-503 provides schedules of compensation periods for various partial and
permanent losses or disfigurements.
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Res judicata, literally “a thing adjudicated,” is defined as “an issue that has been
definitely settled by a judicial decision.”5 Pruden, 45 Va. App. at 573 n.2, 612 S.E.2d at 742 n.2
(citing Black’s Law Dictionary 1336-37 (8th ed. 2004)). “‘[R]es judicata . . . [rests] upon public
policy considerations which favor certainty in the establishment of legal relations, demand an
end to litigation, and seek to prevent harassment of parties.’ ‘[T]he doctrine is firmly established
in our jurisprudence and should be maintained where applicable.’” Childress v. Beatrice
Pocahontas Co., 6 Va. App. 88, 93, 366 S.E.2d 722, 725 (1988) (quoting K & L Trucking Co. v.
Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)).
“The doctrine of res judicata is applicable to decisions of deputy commissioners and the
full [C]ommission. . . . [and] precludes the re-litigation of a claim or issue once a final
determination on the merits has been reached.” Pruden, 45 Va. App. at 573, 612 S.E.2d at 742(quoting Rusty’s Welding Serv. Inc., 29 Va. App. at 128, 510 S.E.2d at 259). “Absent fraud or
mistake, ‘the decisions of the Commission or its deputy commissioners from which no party
seeks timely review are binding upon the Commission.’” Id. (quoting K & L Trucking Co., 1
Va. App. at 219, 337 S.E.2d at 302).
“As the party seeking to assert res judicata, employer must prove that the [Commission]
rendered a final judgment in its favor.”6 Rusty’s Welding Serv., Inc., 29 Va. App. at 128, 510
5
The Commission is a quasi-judicial body within its area of jurisdiction. Hudock v.
Industrial Commission, 1 Va. App. 474, 481, 340 S.E.2d 168, 172 (1986); see also Code
§ 65.2-202(A). We have held that the Commission’s power “is a concomitant of judicial power,
necessary to the proper and effective discharge of its duties.” Id.
6
“A final order is one that disposes of the whole subject, gives all the relief
contemplated, and leaves nothing to be done in the cause save to superintend ministerially
compliance with the order.” Alexander v. Morgan, 19 Va. App. 538, 540, 452 S.E.2d 370, 371
(1995). If an order leaves any “vital questions unsettled” in the matter, it may not be considered
final. Allen v. Parkey, 154 Va. 739, 748, 149 S.E. 615, 619 (1930). In short, a “final order” is
an order “that is dispositive of the entire case.” Order (final order) Black’s Law Dictionary (8th
ed. 2004).
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S.E.2d at 259 (citing Straessle v. Air Line Pilots’ Ass’n, Int’l, 253 Va. 349, 353, 485 S.E.2d 387,
389 (1997)). “Generally, a judgment is final for the purposes of res judicata when ‘nothing more
is necessary to settle the rights of the parties or the extent of those rights.’” Id. (quoting 8B
Michie’s Jurisprudence, Former Adjudication or Res Judicata § 13 (1994)).
To prevail, the party asserting the defense of res judicata must establish the presence of
the following four elements with respect to claimant’s subsequent claim: “(1) identity of the
remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of
the quality of the persons for or against whom the claim is made.” Smith v. Ware, 244 Va. 374,
376, 421 S.E.2d 444, 445 (1992) (quoting Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125,
128 (1986); see also Mowry v. City of Virginia Beach, 198 Va. 205, 211, 93 S.E.2d 323, 327
(1956)).
At the time of the September 17, 2012 hearing, claimant’s PPD claim was ripe for
adjudication. Claimant testified to the facts and circumstances that led to his injuries as well as
how his injuries impacted his ability to work. Claimant also testified about his appointments
with Dr. Schuler and Dr. Salter. In addition, claimant put forth Dr. Salter’s medical evaluation
as proof that he suffered an 11% PPD to his left leg. Claimant then submitted his PPD claim to
the deputy commissioner for a ruling on the merits.
On September 27, 2012, the deputy commissioner issued an opinion finding in favor of
claimant, however on review, the full Commission reversed the deputy commissioner and found
that claimant’s evidence was insufficient “as a matter of law” to support his claim for PPD
benefits. Pursuant to Code § 65.2-706(B),7 claimant had 30 days from the Commission’s July
7
Code § 65.2-706(B) provides:
The notice of appeal [from a decision of the Commission] shall be
filed with the clerk of the Commission within 30 days from the
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12, 2013 opinion or until August 11, 2013, to file a notice of appeal with the clerk of the
Commission and the office of the clerk of the Court of Appeals. Claimant failed to do so.
Rather than timely filing a notice of appeal, claimant chose to file an application for hearing on
August 7, 2013, in hopes that the Commission would “retain jurisdiction” over his case.
Regardless of the Commission’s decision or its rationale in denying claimant’s August 7, 2013
application,8 this filing did not constitute a properly-noticed appeal and thus, does not negate the
finality of the Commission’s July 12, 2013 order. Therefore, pursuant to Code § 65.2-706(B),
the Commission’s July 12, 2013 opinion became a final order as of August 11, 2013.9 Alexander
v. Morgan, 19 Va. App. 538, 540, 452 S.E.2d 370, 371 (1995).
date of such award. A copy of the notice of appeal shall be filed in
the office of the clerk of the Court of Appeals as provided in the
Rules of Court.
8
The Commission had the authority and ability to retain jurisdiction over the matter,
Brock v. Voith Siemens Hydro Power Generation, 59 Va. App. 39, 48-49, 716 S.E.2d 485, 489
(2011), but chose not to do so having concluded that the Commission’s July 12, 2013 opinion
was a final order. The deputy commissioner noted in his letter to counsel that claimant:
having failed to produce compelling evidence initially, or to
convince the Commission on review that he had done so, the
claimant should have yet another opportunity to find evidence
necessary to an award on this particular claim and that the
Commission should retain jurisdiction while he attempted to do so.
There is no legitimate argument for that position.
The full Commission affirmed stating:
We see no corresponding justification for retaining jurisdiction
when, during the period of limitations, maximum medical
improvement has been reached and the claimant is at liberty to
prosecute his claim. Accordingly, we decline to retain jurisdiction
in the present case.
9
Code § 65.2-706; see also, Va. Workers’ Comp. Comm’n R. 3.1 (“A request for review
of a decision, order or award of the Commission shall be filed by a party in writing with the
Clerk of the Commission within thirty (30) days of such decision, order or award.”). “Absent
fraud or mistake, ‘the decisions of the Commission or its deputy commissioners from which no
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Claimant now seeks a second hearing for PPD benefits for his left leg as a result of the
injuries he sustained on February 20, 2007. On March 12, 2014, claimant filed an application for
hearing seeking a ruling by the Commission that he suffers from a 24% PPD of his left leg. The
only difference between claimant’s first and second claims are the medical reports claimant
seeks to introduce as proof of his PPD. Specifically, claimant’s second application for hearing
seeks to rely on Dr. Jackson’s evaluation, as opposed to Dr. Salter’s evaluation, to prove that
claimant suffered a 24%, as opposed to an 11%, PPD to his left leg. Unfortunately for claimant,
his March 12, 2014 claim is barred by res judicata.
First, employer has established all four elements of a claim of res judicata. Smith, 244
Va. at 376, 421 S.E.2d at 445. Here, claimant fully and fairly litigated his claim for PPD benefits
before the Commission on September 17, 2012, and the Commission’s opinion became a final
order on August 11, 2013. Claimant now seeks to re-litigate the same claim for PPD benefits,
seeking the same PPD benefit payments, for the same member, based on the same injuries, which
resulted from the same February 20, 2007 incident, against the same employer. Id. Second,
“[w]here an application . . . is filed for the sole purpose of presenting additional evidence in
support of a claim that has been previously denied, res judicata will bar consideration of the
claim.” Fodi’s v. Rutherford, 26 Va. App. 446, 448, 495 S.E.2d 503, 504 (1998) (citing Mize v.
Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 401 S.E.2d 200 (1991); AMP, Inc. v. Ruebush,
10 Va. App. 270, 391 S.E.2d 879 (1990)). Here, that is precisely what claimant seeks to do.
Claimant initially tried his case using Dr. Salter’s evaluation as proof of the 11% PPD to his left
leg. Claimant submitted his claim to the Commission, and it was ultimately denied on the
merits. Claimant now seeks to re-litigate this very same claim using Dr. Jackson’s more
party seeks timely review are binding upon the Commission.’” Pruden, 45 Va. App. at 573, 612
S.E.2d at 742 (quoting K & L Trucking Co., 1 Va. App. at 219, 337 S.E.2d at 302). In this case,
the claimant has not alleged, nor do we find evidence of, any fraud or mistake.
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favorable medical evaluation in hopes of attaining a more favorable result. Simply stated,
claimant seeks a second bite at the apple as a result of his failure to produce sufficient evidence
to prove his claim at the September 17, 2012 hearing. This is precisely the type of re-litigation
of decided matters that res judicata was intended to prevent. Childress, 6 Va. App. at 93, 366
S.E.2d at 725. Because the prerequisites for the application of res judicata have been met,
claimant’s claim is thus precluded.
For these reasons, claimant’s March 12, 2014 claim is barred by the doctrine of res
judicata as it seeks to re-litigate a claim for which the Commission rendered a final
determination on the merits. Pruden, 45 Va. App. at 573, 612 S.E.2d at 742.
II. THE COMMISSION CORRECTLY INTERPRETED ITS FEBRUARY 12, 2014 ORDER AS NOT
PRESERVING APPELLANT’S AUGUST 7, 2013 OR MARCH 3, 2012 CLAIM
Claimant next argues that the Commission’s July 12, 2013 opinion, which stated that
claimant could re-file his claim within the statutory period, as well as its January 13, 2014 letter,
which dismissed claimant’s August 7, 2013 application without prejudice, implied and caused
claimant to detrimentally rely on those orders in his belief that the Commission retained
jurisdiction over claimant’s PPD claim, thus, entitling him to refile. We disagree.
Courts have the authority to interpret their own orders. Rusty’s Welding Serv., Inc., 29
Va. App. at 129, 510 S.E.2d at 260. “[W]hen construing a lower court’s order, a reviewing court
should give deference to the interpretation adopted by the lower court.” Id. “[T]hese principles
apply when interpreting the adjudicative orders of an administrative agency.” Id. “The
[C]ommission’s interpretation [of its orders] will be accorded great deference and will not be set
aside unless arbitrary or capricious.” Id. at 129 n.2, 510 S.E.2d at 260 n.2.
Not all workers’ compensation cases can be concluded in a single evidentiary hearing.
Brock v. Voith Siemens Hydro Power Generation, 59 Va. App. 39, 48-49, 716 S.E.2d 485, 489
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(2011). In certain cases, where an injury is pled, but is not ripe for adjudication, the Commission
has tailored the application of res judicata to enable a claimant to seek compensation once the
injury alleged becomes ripe for litigation. Id. (citing Brown, 34 Va. App. at 280-81, 540 S.E.2d
at 524-25). Frequently, the Commission allows “claimants ‘to voluntarily withdraw [a] claim
before the record has closed and the matter has been submitted to a [d]eputy [c]ommissioner for
a decision.’” Id. at 49, 716 S.E.2d at 489 (quoting Jenkins v. Webb, 47 Va. App. 404, 407, 624
S.E.2d 115, 116-17 (2006)). However, when a party submits a claim for determination on the
merits, absent a timely request to hold the claim in abeyance or remove the claim from the
hearing docket for future evidentiary findings, the party has agreed for the deputy commissioner
to determine the merits of the claim. Id.Claimant argues that retention of jurisdiction over his March 2, 2012 claim is mandated
by the deputy commissioner’s January 13, 2014 ruling dismissing his second claim without
prejudice, as well as the Commission’s February 12, 2014 opinion which provided:
The claimant’s August 7, 2013 claim is dismissed without
prejudice to his right to re-file his claim within the statutory
period. We note that the claimant last received benefits
under an award on March 29, 2011, and pursuant to Code
§ 65.2-708(A), he must file his claim and provide some
evidence of permanent partial disability within 36 months
from the last date which compensation was paid.
Claimant contends that had the Commission intended for this order to be final, it would not have
dismissed his claim without prejudice or noted his right to refile within the statutory limitations.
In its February 12, 2014 opinion the Commission specifically addressed claimant’s
contention that the Commission had retained jurisdiction over his PPD claim based on the
above-cited language. The Commission stated that “[a] claim denied in an Opinion, once final,
cannot be revived by an Opinion issued over a year thereafter.” It further held that “the
subsequently filed August 7, 2013 claim [which] was dismissed without prejudice says nothing
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of the status of the March 2, 2012 claim.” The Commission noted that it “harbored no intent to
resurrect the March 2, 2012 claim” and that even if it had harbored such intention, “it enjoyed no
jurisdiction to do so.”
This finding is an interpretation by the Commission of its own order. Thus, this Court
must give due deference to these findings of the Commission. See Vanzant v. Southern Bending
Co., 143 Va. 244, 246, 129 S.E. 268, 268 (1925) (the Commission’s factual findings are
“conclusive and binding” on appeal); Rusty’s Welding Serv., Inc., 29 Va. App. at 130, 510
S.E.2d at 260 (“[W]e hold that the [C]ommission is entitled to interpret its own orders in
determining the import of its decisions.”).
The Commission also addressed claimant’s argument that he was misled by the
Commission’s previous orders in his understanding that the Commission had retained
jurisdiction over his claim. The Commission opined that its July 12, 2013 opinion:
invites no reliance beyond the right to refile a claim within the
statutory period of limitations. It carries no implication the
claimant will prevail nor does it relieve him of his burden to
introduce competent, preponderating evidence of his entitlement to
benefits. Neither does his right to refile impede the right to assert
valid defenses including that the specific benefits sought are barred
by the doctrine of res judicata, collateral estoppel, and well-
established principles relating to the finality of judgment.
The Commission determined that its July 12, 2013 opinion was a final order. Having
already concluded that the July 12, 2013 opinion was final and that res judicata applies, we find
that the Commission’s determination was not arbitrary and capricious and thus see no reason to
disturb the Commission’s findings. Rusty’s Welding Serv. Inc., 29 Va. App. at 130, 510 S.E.2d
at 260-61.
Claimant also contends that the Commission’s July 12, 2013 opinion could not have been
final because the Commission did not warn claimant that its opinion was a final order barring
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future proceedings. In support, claimant relies on Brown, 34 Va. App. 273, 540 S.E.2d 521,
where the Court opined that the Commission must warn a claimant when it issues a final order
barring future proceedings and that the mere removal of a case from the docket, without a
dismissal, is insufficient to meet that standard. We find no legal support for claimant’s position.
As discussed supra, Brown dealt with a claim for PPD benefits that was not ripe for adjudication
because claimant had not established that she had reached maximum medical improvement. Id.
at 274, 540 S.E.2d at 522. Here, claimant had reached maximum medical improvement. As
such, the Court’s rationale in Brown is inapplicable here.
For the foregoing reasons, we find that the Commission’s determination that it did not
retain jurisdiction over claimant’s claim for PPD benefits was not arbitrary and capricious.
III. THE COMMISSION DID NOT ERR IN HOLDING THAT THE EVIDENCE DID NOT SUPPORT A
CHANGE IN CONDITION
Claimant next argues that the Commission erred in ruling that he did not prove a change
in condition. Specifically, claimant contends that it was error for the Commission not to infer a
change in condition based on the difference between Dr. Salter’s 11% PPD determination and
Dr. Jackson’s 24% PPD determination of claimant’s left leg. We disagree.
The Commission’s decisions regarding permanent impairment and maximum medical
improvement are findings of fact. McCaskey v. Patrick Henry Hosp., 225 Va. 413, 415, 304
S.E.2d 1, 2 (1983). The Commission’s factual findings will be upheld on appeal if supported by
credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). Appellate courts “do not retry facts before the Commission nor do [they] review the
weight, preponderance of the evidence, or the credibility of witnesses.” Caskey v. Dan River
Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510 (1983). “The Commission’s factual findings
are ‘conclusive and binding’ . . . .” Eccon Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d
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797, 799 (1981). “If there is evidence or reasonable inference that can be drawn from the
evidence to support the Commission’s findings, they will not be disturbed by this Court on
appeal, even though there is evidence in the record to support contrary findings of fact.” Caskey,
225 Va. at 411, 302 S.E.2d at 510-11.
Pursuant to Code § 65.2-708(A), a party may ask the Commission to review any award.
Code § 65.2-101 defines a “change in condition” as “a change in the physical condition of the
employee as well as a change in the conditions under which compensation was awarded,
suspended, or terminated which would affect the right to, amount of, or duration of
compensation.”
When an employee applies for reinstatement of disability benefits
based upon a change in condition, the [C]ommission must
determine: (1) whether a “change in condition” has occurred as
defined in Code § 65.2-101, that affects the employee’s capacity to
work, and (2) if so, whether the change is due to a condition
causally connected with the original compensable injury.
Fodi’s, 26 Va. App. at 448, 495 S.E.2d at 504 (citing King’s Market v. Porter, 227 Va. 478, 483,
317 S.E.2d 146, 148 (1984)). “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.” Id. (citing Mize, 11 Va. App. 601,
401 S.E.2d 200; Ruebush, 10 Va. App. 270, 391 S.E.2d 879).
The Commission determined that claimant failed to prove a change in condition.
Specifically, the Commission found that “Dr. Jackson [did] not suggest the claimant’s condition
[had] deteriorated since the time of Dr. Salter’s evaluation, which was the subject of the original
March 2, 2012 claim.” The Commission stated “we cannot speculate that Dr. Jackson’s test
results represent deterioration in the claimant’s condition. . . . Instead, we interpret Dr. Jackson’s
explanation to suggest that if Dr. Salter had correctly performed such a test, he would have
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reached the same conclusions as Dr. Jackson.” The Commission further opined that “[t]he
greater weight of the evidence reveals two physicians with contrary assessments of a static
medical condition litigated at the hearing of [September 17, 2012].” The Commission ultimately
found that claimant, through his testimony, “failed to establish a change in condition . . . .”
The evidence supports the Commission’s decision. Dr. Jackson’s report does not address
the issue of claimant’s alleged deterioration or change in condition. Specifically, there is no
affirmative finding by Dr. Jackson that claimant experienced a change in condition from the time
that he met with Dr. Salter to the time he met with Dr. Jackson. Rather, the only finding by
Dr. Jackson related to claimant’s prior condition is that “[t]here has been no significant
improvement in [claimant’s] condition.” Thus, a re-evaluation of claimant’s current condition
was essentially a disagreement with Dr. Salter’s prior disability rating. This statement is clearly
insufficient for this Court to conclude that claimant is entitled to re-litigate his PPD claim based
on a change in condition. Code § 65.2-101. Significantly, Dr. Jackson’s statements evince that
he simply did not agree with Dr. Salter’s evaluation of claimant or his medical conclusions; not
that claimant had experienced a change in condition. Dr. Jackson stated: “I do not agree with
Dr. Salter,” “I would have amended Dr. Salter’s findings,” “Dr. Salter’s word choice is
‘unfortunate,’” and “I am not sure what [Dr. Salter] means by this . . . .” Simply put,
Dr. Jackson’s evaluation demonstrates that he merely came to a different conclusion than that of
Dr. Salter. Nowhere can it be said that, as required by statute, Dr. Jackson opined on the issue of
deterioration or change in condition.
We cannot say that the Commission’s factual determinations are not supported by the
evidence. While claimant requests that this Court infer a change in condition based on the
disparities in Dr. Salter’s and Dr. Jackson’s medical evaluations, we decline to do so.
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CONCLUSION
For the foregoing reasons, the ruling of the Commission is affirmed.
Affirmed.
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