Michael Ray Manes v. TCB Construction

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
MICHAEL RAY MANES
MEMORANDUM OPINION*
v. Record No. 0019-99-3 PER CURIAM
JUNE 22, 1999
TCB CONSTRUCTION, INC. AND
ERIE INSURANCE EXCHANGE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael Ray Manes, pro se, on briefs).
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellees.
Michael Ray Manes (claimant) contends that the Workers'
Compensation Commission (commission) (1) erred in denying his June
7, 1994 and December 4, 1995 claims alleging a change-in-condition
on the ground that they were barred by the doctrine of res
judicata and/or collateral estoppel; (2) erred in denying those
claims, and alleged amendments to those claims, on the ground that
they were not timely filed; (3) erred in finding that his November
21, 1996 claim requesting an award of permanent partial disability
benefits ("PPD") was barred by the doctrine of res judicata and
was not timely filed; (4) failed to respond to his request that
the commission designate a new treating physician; (5) erred in
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
finding that TCB Construction, Inc. and its insurer (hereinafter
referred to as "employer") were not responsible for the cost of
his July 22, 1996 right ulnar nerve transposition and right carpal
tunnel release surgery; and (6) failed to address his request for
rehabilitation training. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27. 1
I. and II.
On August 3, 1993, claimant filed a claim alleging that he
sustained an injury by accident on July 6, 1993, resulting in a
"broken right elbow." Claimant requested an award of temporary
total disability ("TTD") benefits beginning July 6, 1993.
In a June 7, 1994 letter (incorrectly dated June 7, 1993),
filed with the commission on June 10, 1994, claimant amended his
August 3, 1993 claim. In that letter, claimant asserted that he
also suffered injuries to his "cervical spine, thoracic spine,
left and right shoulders, fracture of the radial head of the right
arm, and injuries to the right and left arms," as a result of the
July 6, 1993 accident. Again, claimant requested TTD benefits
beginning July 6, 1993. Claimant also requested that the
1
Claimant's brief sets forth thirteen issues. Some of the
issues designated by claimant are duplicative or relate to
another issue. Accordingly, we have combined some of the issues
presented by claimant and will address them together for
purposes of this appeal.
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commission hold employer responsible for the cost of medical
treatment provided by Dr. Norman J. Cowen.
On December 21, 1994, the commission held a hearing on the
August 3, 1993 claim and the June 10, 1994 amendment to that
claim. At that hearing, the parties stipulated that claimant
sustained a fractured right radial head as a result of the July
6, 1993 injury by accident and that employer made certain
voluntary payments to claimant for disability through January
20, 1994. The only injuries asserted at the hearing by
claimant's counsel related to claimant's July 6, 1993 accident
included a fractured radial head and carpal tunnel syndrome.
Claimant testified that he believed he sustained injuries to his
right wrist, elbow, right shoulder, upper back, neck, both
shoulders, and left arm as a result of the July 6, 1993
accident.
In his March 7, 1995 opinion, Deputy Commissioner Tabb
considered all of the injuries asserted by claimant. Tabb ruled
that claimant's right carpal tunnel syndrome was causally
related to his July 6, 1993 accident; that claimant failed to
market his residual capacity and was not entitled to benefits
after January 20, 1994; and that Dr. Cowen was not an authorized
treating physician. Both parties requested review of Tabb's
decision. However, neither party raised issues concerning the
compensability of injuries other than those to claimant's right
forearm and his carpal tunnel syndrome.
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On July 19, 1995, the full commission affirmed Tabb's
decision, finding that claimant was not credible; that Dr. Cowen
was not an authorized treating physician; and that claimant was
partially disabled and had failed to market his residual
capacity. However, Tabb's finding of causal connection between
claimant's carpal tunnel syndrome and his accident was vacated
and remanded for a hearing on that issue and any new claims that
had been filed and were ripe for hearing.
The second hearing, on October 18, 1995, included the
carpal tunnel issue as well as claims filed by claimant on March
13, 1995, April 12, 1995, June 28, 1995 and August 14, 1995. In
those claims, among other issues, claimant asserted he was
entitled to TTD benefits beginning March 31, 1995, payment for
Dr. John Johnson's medical treatment, and recognition of Dr.
Johnson as the authorized treating physician. At the hearing,
claimant again testified to problems he believed were related to
the July 6, 1993 injury by accident, including tingling in his
hands and down both sides of his arms, headaches, neck, arm and
back pain, fluid leaking from his ears, and numbness in his arms
after leaning on his elbows.
On November 15, 1995, Tabb issued an opinion in which he
"adopt[ed] the medical recitals as set forth in the Commission's
Opinion of July 19, 1995, and the medical facts as found in the
Opinion of March 7, 1995 . . . ." Tabb also cited various
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medical records detailing claimant's numerous complaints. Based
upon the evidence, Tabb found as follows:
[C]laimant's July 6, 1993, fractured radial
head has healed, and . . . any continuing
problems he may have, are either the result
of unrelated matters or right carpal tunnel
syndrome which pre-existed his July 6, 1993,
accident. There has previously been a
stipulation that an accident occurred on
July 6, 1993, which necessitated treatment
for his fractured radial head for which we
assume all medical payments have been made.
There is no continuing need for medical
treatment and no continuing disability.
(Emphasis added.)
In his December 4, 1995 request for review of Tabb's
November 15, 1995 decision, claimant asserted that he suffered
from continuing neck, upper back, and shoulder pain and fluid
leaking from his ears. Claimant argued that Tabb erred in
ruling that those continuing medical problems were not causally
related to his July 6, 1993 injury by accident. Claimant
reiterated his position in several letters filed thereafter.
On March 12, 1996, the full commission affirmed Tabb's
November 15, 1995 decision that claimant's right carpal tunnel
syndrome was not causally related to his compensable July 6, 1993
injury by accident.
On September 24, 1996, this Court summarily affirmed the
commission's findings that claimant was not credible; that his
right carpal tunnel syndrome and continuing disability were not
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causally related to his compensable July 6, 1993 injury by
accident; and that he failed to market his residual capacity.
On July 16, 1997, the commission held a hearing on claims
filed by claimant on June 7, 1994, December 4, 1995, and November
21, 1996. The December 4, 1995 claim asserted that claimant
sustained a broken right elbow and a non-displaced radial head
fracture of the right elbow as a result of the July 6, 1993
accident. Claimant requested TTD benefits beginning January 20,
1994 and continuing.
On April 22, 1996, claimant amended that claim to allege a
change-in-condition including "a large rotator cuff tear of the
left shoulder, bi-lateral ulnar nerve compression of both elbows
and possible thoracic outlet syndrome and possible nerve damage to
the neck and/or spine." Claimant sought TTD benefits beginning
January 20, 1994 and continuing, payment of medical bills, and
reimbursement for mileage expenses. He also requested vocational
rehabilitation and recognition of Drs. Richard Whitehill and
Gregory Degnan as authorized treating physicians. By letter filed
on June 5, 1996, claimant again amended the December 4, 1995
change-in-condition claim to include injuries to his cervical
spine, thoracic spine, right and left arms, right and left elbows,
right and left shoulders, and neck.
The November 21, 1996 claim requested an award of PPD
benefits for an impairment rating to his right upper extremity.
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In a December 16, 1997 opinion, Deputy Commissioner Herring
found that claimant's June 7, 1994, December 4, 1995 and
accompanying amendments, and November 21, 1996 claims were barred
by res judicata and/or collateral estoppel. In support of that
ruling, Herring cited Tabb's November 15, 1995 opinion, which was
rendered after a hearing that encompassed all of the injuries
raised by claimant in his June 7, 1994 and December 4, 1995
claims, and which was affirmed by the full commission and this
Court.
On December 4, 1998, the full commission affirmed Herring's
December 16, 1997 opinion and dismissed all pending claims. In
that opinion, the commission held that Tabb's November 15, 1995
opinion, affirmed by the commission and this Court
extinguish[ed] allegation of other injuries
contained in the June 1994 amended claim.
The additional injuries are precluded from
being relitigated because either they were
resolved by the stipulation [at the December
21, 1994 hearing] and the Deputy's finding
which makes res judicata applicable, or they
could have been litigated at that time but
were not which makes collateral estoppel
apply.
The December 4, 1995, claim was for a
broken right elbow and a non-displaced
radial head fracture. The right elbow
fracture had already been determined to be
compensable pursuant to the stipulation and
earlier decision. The Deputy, in the
November 15, 1995, decision, specifically
found that the claimant's disability was
unrelated to the compensable accident.
Therefore, a claim for benefits from January
20, 1994, and continuing is barred by res
judicata.
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* * * * * * *
[C]laimant's statement that he was unaware
of the injuries until after the hearings is
also contradicted by the discussion at the
last hearing where, when asked why the other
injuries were not raised, he alleged it was
because of incompetent counsel. He further
stated that he begged counsel to raise the
other injuries at the earlier hearings. If
this is the case, collateral estoppel would
be applicable because it was an issue that
could have been raised at that time but was
not. As noted earlier, the claimant did
testify to injury to other body parts,
medical records noted other complaints and
the earlier review delineated the various
injures [sic] and possible diagnosis.
Therefore res judicata would prevent
relitigation.
The commission's finding that the June 7, 1994 and December
4, 1995 claims were barred by res judicata and/or collateral
estoppel is fully supported by the record. Res judicata applies
"where there is a valid, personal judgment obtained by a
defendant on the merits of an action. The judgment bars
relitigation of the same cause of action, or any part thereof
which could have been litigated between the same parties and
their privies." K & L Trucking Co. v. Thurber, 1 Va. App. 213,
219, 337 S.E.2d 299, 302 (1985).
Before the July 16, 1997 hearing, claimant had already
litigated or could have already litigated the issue of his
entitlement to an award of TTD benefits beginning January 20,
1994 with respect to all of the various injuries alleged by him
in his June 7, 1994 and December 4, 1995 claims. Tabb's
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November 15, 1995 decision, which encompassed or could have
encompassed these claims, and which was affirmed by the
commission and this Court, adjudicated the claims made by
claimant in his June 7, 1994 and December 4, 1995 claims.
Therefore, res judicata and/or collateral estoppel prevented
claimant from subsequently relitigating the issue of his
entitlement to TTD benefits beginning January 20, 1994 and
continuing due to the injuries alleged by him at the July 16,
1997 hearing. 2
III.
The commission correctly applied the doctrine of res
judicata to find that Tabb's November 15, 1995 decision,
affirmed on review by the commission and appeal to this Court,
barred the commission from awarding claimant PPD benefits as
requested in his November 21, 1996 application. Tabb's November
15, 1995 decision constituted a final and binding determination
that claimant's fractured radial head had healed; that any
continuing problems that he may have were either due to his
pre-existing right carpal tunnel syndrome or matters unrelated
2
The record also supports the commission's alternative
finding that the December 4, 1995, April 18, 1996, and May 8,
1996 claims, if they assert new injuries or injuries diagnosed
after December 1994 and the previous hearings, would be barred
by the statute of limitations. None of these claims were filed
before July 6, 1995, within two years of the date of the
accident. In addition, as the commission noted "even if the
1996 claims were truly amendments, they would still be time
barred because the December 1995 claim was not timely filed."
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to his July 6, 1993 injury by accident; and that there was no
continuing disability or need for further medical treatment.
Accordingly, the commission did not err in finding that
claimant's November 21, 1996 claim for PPD benefits was barred
by the doctrine of res judicata.
IV. – VI.
Because our rulings affirming the commission's findings
with respect to the issues of res judicata, collateral estoppel,
and the statute of limitations dispose of this appeal, we need
not address the remaining issues raised by claimant. 3
For these reasons, we affirm the commission's decision.
Affirmed.
3
Employer moved this Court to dismiss claimant's appeal due
to his failure to comply with Rules 5A:20(c) and 5A:25(d). We
deny that motion.
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