Spotsylvania Law Enforce v. Willard Bates Upshaw

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
SPOTSYLVANIA (COUNTY OF) LAW
ENFORCEMENT AND VIRGINIA
MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 1158-02-2 PER CURIAM
OCTOBER 22, 2002
WILLARD BATES UPSHAW, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Whitt & Associates, on brief), for
appellants.
(Wesley G. Marshall, on brief), for appellee.
Spotsylvania (County of) Law Enforcement and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that the doctrine of
res judicata barred employer's July 6, 2001 change-in-condition
application. The application alleged that Dr. James B. Macon
released Willard Bates Upshaw, Jr. (claimant) to return to his
pre-injury work on or before June 25, 2001. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On June 6, 2000, claimant sustained a compensable back
injury. Employer accepted the claim, and the commission entered
awards for various periods of temporary total and temporary
partial disability.
On February 23, 2001, employer filed an application seeking
to terminate claimant's benefits on the ground that he was
terminated for cause from selective employment. On March 13,
2001, claimant filed an application seeking temporary total
disability benefits from February 23, 2001 and continuing.
During June 2000, claimant began treatment with Dr. Macon.
Dr. Macon diagnosed claimant as suffering from a lumbosacral
strain, lumbar degenerative disc disease at L4-5 and L5-S1, and
a post-concussive syndrome. On October 12, 2000, Dr. Macon
released claimant to a light-duty sitting job. On January 30,
2001, Dr. Macon revised claimant's work status by restricting
him from working more than four hours without breaks.
On February 16, 2001, employer terminated claimant from
selective employment. On March 13, 2001, claimant returned to
Dr. Macon, who excused claimant from all work at that time.
In his May 3, 2001 deposition, Dr. Macon testified that he
removed claimant from work on March 13, 2001 because of
claimant's subjective complaints that he could not sit, and he
had a limp and numbness. Dr. Macon testified that he restricted
claimant from all work until June 1, 2001. Dr. Macon testified
that after June 1, 2001, he would re-evaluate claimant's work
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status. Dr. Macon opined that if a job was available that
allowed claimant to sit, stand and walk around as needed as of
June 1, 2001, he would release claimant to perform that job.
Dr. Macon testified that claimant could perform his pre-injury
job as a communications operator if he was given a headset,
allowed to stand while working, and the job did not require
prolonged sitting, heavy lifting, bending, twisting, crawling,
or climbing. Dr. Macon's medical records and his May 3, 2001
deposition testimony were before the deputy commissioner at the
June 4, 2001 hearing and considered by her in rendering her June
15, 2001 opinion.
In her June 15, 2001 opinion, the deputy commissioner ruled
that claimant's termination from selective employment
constituted an unjustified refusal of selective employment, but
the refusal did not constitute a termination for justified
cause. She further ruled that claimant proved he was totally
disabled from March 13, 2001 through April 19, 2001 and that he
cured his refusal of selective employment on April 20, 2001, by
finding employment with a new employer, earning more that he
earned in his selective employment with employer. The deputy
commissioner's June 15, 2001 opinion was not appealed by either
party.
On July 6, 2001, employer filed a change-in-condition
application alleging claimant was released to return to his
pre-injury work on or before June 25, 2001. As support for its
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application, employer relied upon Dr. Macon's May 3, 2001
deposition testimony and Dr. Macon's June 25, 2001 handwritten
response to a questionnaire sent to him by employer's counsel.
In the questionnaire, employer's counsel asked Dr. Macon for his
opinion as to whether claimant was physically capable of
performing his regular job as a communications operator.
Dr. Macon responded that he was "unable to add any comments
other than included in deposition." Employer also included the
affidavit of John Brown, employer's director of emergency
communications, in which Brown indicated that claimant had
available to him and was allowed to use a headset in his job as
a communications operator, and that he was allowed to sit,
stand, walk, or otherwise change positions as needed.
The commission ruled that res judicata barred employer's
July 6, 2001 application on the ground that the issue of whether
claimant's pre-injury job allowed him to stand as needed was
previously decided against employer. The commission found as
follows:
The employer's present application is
premised on the allegation that the
claimant's pre-injury job allowed him to
stand as needed, thus, meeting Dr. Macon's
opinion that the claimant could do his
regular job as a communications operator if
he could stand as needed. We agree with the
Deputy Commissioner that the employer cannot
now raise this issue.
At the first hearing, testimony was
taken as to whether the pre-injury job
allowed the claimant to stand as needed.
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John Brown testified a communications
operator "can take calls while standing."
["]The claimant denied that he could get up
and move around as desired but testified he
supposed he could move between calls or
stand during calls."
Deputy Stevick did not make a specific
finding as to whether the pre-injury job
allowed the claimant to stand as needed.
However, her finding that it did not is
implicit in her Award of temporary partial
benefits. If she were of the opinion that
the claimant could do his pre-injury work,
then she would not have awarded temporary
partial benefits when the claimant found
alternative light-duty work on April 20,
2001. If she thought the claimant could do
his pre-injury job, (i.e. he could stand as
needed) she would have terminated his award
then. Instead, she found the claimant cured
his refusal and awarded partial benefits,
which indicates she did not think he could
do his pre-injury job. That decision was
not appealed and is final.
In Lowes of Christiansburg v. Clem, 37 Va. App. 315, 557
S.E.2d 745 (2002), we recognized as follows:
[I]n a proper case "principles of res
judicata apply to Commission decisions."
Where applicable, the principle "bars
relitigation of the same cause of action, or
any part thereof which could have been
litigated between the same parties and their
privies." "One who asserts the defense of
res judicata has the burden of proving by a
preponderance of the evidence that an issue
was previously raised and decided by [the
commission] in a prior cause of action."
Id. at 322, 557 S.E.2d at 748 (citations omitted). Furthermore,
"'the commission is entitled to interpret its own orders in
determining the import of its decisions . . . and to examine the
opinion of the deputy commissioner as a whole in order to
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ascertain the result intended.'" Id. at 323, 557 S.E.2d at 748
(citation omitted).
Here, the commission could reasonably conclude that in the
deputy commissioner's June 15, 2001 opinion, she implicitly
found that claimant could not perform his pre-injury job by
awarding him temporary partial disability benefits beginning
April 20, 2001 and continuing. Employer presented no new
medical evidence to support its July 6, 2001 change-in-condition
application alleging that Dr. Macon had released claimant to
return to his pre-injury work on or before June 25, 2001.
Rather, employer relied upon Dr. Macon's May 3, 2001 deposition
testimony, which had already been considered by the deputy
commissioner, along with evidence regarding claimant's
pre-injury job duties, in rendering her June 15, 2001 opinion.
Thus, the issue of claimant's ability to perform his pre-injury
job based upon Dr. Macon's medical records and Dr. Macon's May
3, 2001 deposition testimony was or could have been litigated
before the deputy commissioner at the June 4, 2001 hearing and
was necessarily determined by her in her June 15, 2001 opinion.
Accordingly, the commission did not err in finding that
employer's July 6, 2001 application was barred by res judicata.
For these reasons, we affirm the commission's decision.
Affirmed.
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