Uninsured Emp. Fund v. Clara Annette Thrush

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
THE UNINSURED EMPLOYER'S FUND
v. Record No. 1273-96-1 MEMORANDUM OPINION *
PER CURIAM
CLARA ANNETTE THRUSH (WIDOW), DECEMBER 10, 1996
BRIAN LEE THRUSH (DECEASED)
AND TEAUNA MAE THRUSH (INFANT)
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James S. Gilmore, III, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General; Julia D. Tye, Assistant Attorney
General, on brief), for appellant.
(Robert J. Macbeth, Jr.; Rutter & Montagna,
on brief), for appellees.
The Uninsured Employer's Fund ("the Fund") contends that the
Workers' Compensation Commission erred in calculating the average
weekly wage of Brian Lee Thrush ("the decedent") based upon a
forty-hour work week at six dollars per hour. Clara Annette
Thrush, the decedent's widow, filed a Motion to Dismiss the
Fund's appeal on the ground that this Court's January 11, 1996
memorandum decision is res judicata. Although we hold that the
doctrine of res judicata is not applicable to this case, the "law
of the case" doctrine mandates affirmance of the Fund's appeal.
Accordingly, we hold that this appeal is without merit, and we
summarily affirm the commission's decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The "law of the case" doctrine provides:
"Where there have been two appeals in the
same case, between the same parties and the
facts are the same, nothing decided on the
first appeal can be re-examined on a second
appeal. . . . It differs from res judicata
in that the conclusiveness of the first
judgment is not dependent upon finality."
American Filtrona Co. v. Hanford, 16 Va. App. 159, 164-65, 428
S.E.2d 511, 514 (1993) (quoting Steinman v. Clinchfield Coal
Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687 (1917)).
On January 11, 1996, in a memorandum opinion, we remanded
this case to the commission with the direction that the
commission redetermine the decedent's average weekly wage using a
forty-hour work week at six dollars per hour. On remand, the
commission followed our directive and recalculated the decedent's
average weekly wage at $240. In this second appeal, the Fund
raises the precise issue that was previously determined by us in
our prior memorandum opinion. Because our January 11, 1996
ruling on the average weekly wage calculation became the "law of
the case," we cannot re-examine this issue on the Fund's second
appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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