COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
ROBERT B. WAINWRIGHT
OPINION BY
v. Record No. 1129-06-1 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 25, 2007
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Stephen F. Forbes (Forbes and Broadwell, on briefs), for appellant.
Lawrence P. Postol (Seyfarth Shaw LLP, on brief 1 ), for appellee.
Robert B. Wainwright (claimant) appeals a decision of the Workers’ Compensation
Commission (commission) denying his claim for temporary disability benefits. Claimant
contends the commission erred in finding he abandoned his claim and in concluding the two-year
statute of limitations contained in Code § 65.2-601 barred his claim. We agree with claimant
and, therefore, reverse the commission’s judgment and remand this matter to the commission for
further proceedings.
I. BACKGROUND
The relevant facts and procedural posture of this case are not in dispute. While working
for Newport News Shipbuilding and Dry Dock Company (employer), claimant sustained a
compensable injury by accident on March 6, 1996, when he was struck from behind by a forklift.
1
Following oral argument, employer filed a motion to file a supplemental brief and an
accompanying brief intended to aid us by providing “a full discussion of the issues.” Because
we did not request any additional briefing by the parties and because the brief submitted by
employer adds nothing new to the discussion but, instead, merely reiterates the same argument
already presented by employer, we deny the motion.
By letter dated April 5, 1996, and filed with the commission on April 10, 1996, claimant asserted
a “[c]laim . . . for all benefits to which he is or may be entitled pursuant to the Virginia Workers’
Compensation Act.” Claimant added, however, that he was pursuing a concurrent claim under
the federal Longshore and Harbor Workers’ Compensation Act (LHWCA) and would not
therefore need to schedule a hearing before the commission at that time.
On October 31, 1997, employer notified the commission that it accepted claimant’s claim
as compensable. Employer further informed the commission that claimant “was being paid
benefits under the [LHWCA]” and that there were no issues that needed to be resolved by the
commission at that time.
By letter dated November 24, 1997, claimant requested “a hearing on the issue of total
permanent disability.” That request, however, was not pursued, and the matter was never
docketed.
By letter dated February 12, 1998, and filed with the commission on February 20, 1998,
claimant requested a hearing in connection with his desire to continue receiving treatment from
his long-time treating physician, Dr. Alvin Bryant, and the licensed clinical psychologist to
whom Dr. Bryant referred him, Dr. H.W. Cole. According to claimant, employer was
“attempting to medically manage [his] case” and was “refusing to authorize treatment” by
Drs. Bryant and Cole. No other issue was raised in claimant’s letter.
In response to claimant’s February 12, 1998 letter, the commission informed employer
that it was “in receipt of a claim for medical benefits in this case” and directed employer to
submit a response to that claim. On March 25, 1998, employer filed a form with the commission
again indicating that it accepted claimant’s claim as compensable and that claimant was
receiving benefits under the LHWCA. Employer further stated that the continuing treatment by
Drs. Bryant and Cole was the “only issue[] to be resolved.” By letter to the commission dated
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August 10, 1998, claimant agreed that the only issue in dispute was “whether Dr. Bryant
remain[ed] the primary treating physician” and was, thus, authorized to refer claimant to
Dr. Cole for psychological treatment.
On October 2, 1998, Deputy Commissioner Phillips conducted a hearing on claimant’s
request to continue receiving treatment from Drs. Bryant and Cole for the injuries he suffered as
a result of the March 6, 1996 industrial accident. Employer’s sole defense to claimant’s request
was that Dr. Bryant “should be removed as treating physician and rehabilitation specialist Mark
Ross, M.D., be so designated.” The parties stipulated that the work-related injuries claimant
sustained on March 6, 1996 were compensable, that employer accepted claimant’s claim, and
that claimant was receiving benefits pursuant to the LHWCA.
In her opinion dated April 6, 1999, Deputy Commissioner Phillips reviewed the treatment
received by claimant from Dr. Bryant, Dr. Cole, Dr. Ross, a rehabilitation specialist, and the
other specialists to whom Dr. Bryant had referred claimant. The deputy commissioner also
reviewed the evaluations rendered by some of the specialists to whom employer had referred
claimant. Following those reviews, the deputy commissioner found that claimant’s condition
required the treatment of a single qualified physician who specialized in chronic pain
management, rather than the treatment of a general surgeon, like Dr. Bryant, who relied on
“various referrals.” The deputy commissioner further found that Dr. Ross, given his
acknowledgment that he was uncertain “what to do next” to treat claimant’s condition, was not a
suitable replacement as claimant’s treating physician. In addition, the deputy commissioner
found that claimant was no longer in need of psychological treatment. Accordingly, Deputy
Commissioner Phillips removed Dr. Bryant as claimant’s treating physician and directed
employer “to offer a panel of physicians skilled in chronic pain management from which . . .
claimant [was to] choose a new treating physician.” The deputy commissioner made no other
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determinations or rulings, and neither party requested review of the deputy commissioner’s
opinion.
By letter dated October 27, 2003, and filed with the commission on October 29, 2003,
claimant requested a “hearing for payment of indemnity and medical benefits and authorization
of a treating physician.” Claimant subsequently clarified that, in addition to medical benefits for
the injuries he sustained as a result of his March 6, 1996 injury by accident, he was seeking
temporary total disability benefits for the period October 2, 2002, to July 5, 2004; temporary
partial disability benefits for the ten-week period beginning July 6, 2004; and resumption of
temporary total disability benefits thereafter. The parties stipulated that claimant’s March 6,
1996 injury by accident was compensable and that claimant had previously been paid disability
benefits under the LHWCA. In defending the claim, employer asserted, inter alia, that
claimant’s request for disability benefits was barred because it “was not timely filed.”
Deputy Commissioner Lahne conducted hearings on claimant’s claim on October 15,
2004, and January 13, 2005. In his opinion dated August 9, 2005, Deputy Commissioner Lahne
ruled, inter alia, that, although claimant’s April 5, 1996 letter constituted a valid claim for
disability benefits, claimant’s October 29, 2003 application for temporary disability benefits was
“time barred and/or . . . barred by the doctrine of res judicata” because claimant “could have
sought an award ‘for record purposes’ [at the October 2, 1998 hearing] in order to preserve his
rights under the Virginia [Workers’ Compensation] Act” but did not do so. Thus, the deputy
commissioner held that claimant’s claim for disability benefits was, “at that point, concluded.”
Upon review, the full commission determined that the doctrine of res judicata did not
apply to bar claimant’s October 29, 2003 request for temporary disability benefits because the
“period of compensation” sought by claimant was different than that sought by him in the
previously litigated claim. Accordingly, the commission reversed the decision of the deputy
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commissioner to the extent he “relied on the doctrine of res judicata in denying” claimant’s
claim.
However, a majority of the full commission affirmed the deputy commissioner’s decision
that claimant’s October 29, 2003 request for temporary disability benefits was untimely,
reasoning as follows:
The record reflects that the claimant filed a timely claim on
April 10, 1996, associated with his industrial accident on March 6,
1996, wherein he sought “all benefits” to which he might be
entitled under the Act. Encompassed by the request for “all
benefits” is the claim for wage loss compensation. A July 9, 1998,
Notice of Hearing indicated the claimant’s April 10, 1996, and
February 20, 1998, claims would be heard on October 2, 1998.
Deputy Commissioner Phillips’ April 6, 1999, Opinion did not
address the claim for disability benefits, and did not enter an award
of compensation for record purposes or otherwise. Neither party
requested Review of the Deputy Commissioner’s Opinion.
Based on the record, it appears that the claimant opted to
forego his opportunity to pursue entry of an award of disability
benefits at the October 2, 1998, Hearing. That issue was before
Deputy Commissioner Phillips and could have been litigated. We
frequently have held that the Commission does not adjudicate
cases piecemeal. Issues that are raised and not pursued are deemed
abandoned, unless specifically deferred. We find that by choosing
not to appeal the Deputy Commissioner’s April 6, 1999, Opinion,
the claimant abandoned his April 10, 1996, claim for disability
benefits.
(Citations omitted.) The commission further reasoned as follows:
[T]he claimant’s April 10, 1996, claim was disposed of by
Deputy Commissioner Phillips’ April 6, 1999, Opinion, and no
award of compensation was entered. Virginia Code § 65.2-601
provides that the right to compensation shall be forever barred,
unless a claim is filed with the Commission within two years of the
accident. Code § 65.2-708 states that no review of an award may
be made more than 24 months after the last day compensation was
paid pursuant to an award. Although the claimant filed his April
10, 1996, claim with the Commission within the applicable time
limit, no award of compensation was entered as a result of the
Hearing on that claim. Thus, the claim filed October 29, 2003,
seeking periods of disability benefits beginning October 2002 and
continuing, related to the March 6, 1996, injury by accident, is
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untimely under the statute of limitations found in § 65.2-601.
Virginia Code § 65.2-708 is inapplicable, because there is no
previous award of compensation. Therefore, we affirm Deputy
Commissioner Lahne’s finding that the statute of limitations bars
the claimant’s October 29, [2003,] claim.
The dissenting commissioner concluded that claimant’s October 29, 2003 request for
temporary disability benefits was not time barred because
the claimant filed a timely claim for wage loss compensation under
the [Workers’ Compensation] Act, because such claim was not
previously adjudicated by the Commission, and because the record
reflects that the claimant was disabled due to his workplace injury
within two years of its occurrence.
This appeal by claimant followed.
II. ANALYSIS
On appeal, claimant contends the commission erred in affirming Deputy Commissioner
Lahne’s decision that claimant’s October 29, 2003 request for temporary disability benefits was
time barred. Specifically, claimant argues the commission erred in finding he abandoned his
April 10, 1996 claim for disability benefits and in concluding his October 29, 2003 request was
thus barred by the two-year statute of limitations set forth in Code § 65.2-601. 2
In response, employer contends the commission correctly found that claimant abandoned
his April 10, 1996 claim for disability benefits and correctly concluded, based on that finding,
that claimant’s October 29, 2003 request for temporary disability benefits was time barred.
Alternatively, employer asserts claimant’s request for disability benefits was also time barred
because claimant’s April 5, 1996 letter did not constitute a valid claim. Employer further asserts
the commission’s ruling that claimant’s request for disability benefits was barred may “also be
2
Claimant further argues that the commission “should have applied” the doctrines of
imposition and de facto award to this case. In light of our resolution of this appeal, we need not
address this additional argument.
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upheld under the doctrine of res judicata.” Thus, employer concludes, the commission properly
denied claimant’s request for disability benefits. We disagree with employer.
In reviewing the commission’s judgment, we view the evidence in the light most
favorable to employer, the prevailing party below. See R. G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). “Factual findings of the . . . [c]ommission 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). However, the commission’s legal
determinations are not binding on appeal and will be reviewed de novo. Robinson v. Salvation
Army, 20 Va. App. 570, 572, 459 S.E.2d 103, 104 (1995).
We first consider employer’s assertion that claimant’s request for temporary disability
benefits was time barred under Code § 65.2-601 because claimant’s April 5, 1996 letter did not
constitute a valid claim. Specifically, employer argues the April 5, 1996 letter was inadequate to
constitute a valid claim because it failed to specify “what part of the body was injured” and
“what benefits were being claimed.”
“A claim for compensation must be filed with the commission within two years after the
accident or the claim shall be forever barred. This provision is jurisdictional, and failure to file
within the prescribed time will bar a claim.” Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18,
20, 441 S.E.2d 349, 350 (1994) (citing Code § 65.2-601). “The intent and purpose of Code
§ 65.2-601 is to require notice to the employer of its potential liability for an injury sustained by
an employee.” Metro Machine Corp. v. Sowers, 33 Va. App. 197, 204, 532 S.E.2d 341, 345
(2000). To that end, the claim “must identify the employer, the date of accident, the location of
the accident, and the injuries suffered” and “‘fairly apprise the commission that a claim [is] being
made.’” Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 938, 434 S.E.2d 353, 355
(1993) (quoting Trammel Crow Co. v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634
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(1991)). Formal pleadings, however, “are not required, and so long as the notice advises the
commission of necessary elements of the claim, it activates the right of the employee to
compensation and invokes the jurisdiction of the commission.” Keith v. Ball Metal Beverage
Container Corp., 45 Va. App. 50, 54, 608 S.E.2d 501, 503 (2005). Whether the information filed
with the commission is sufficient to constitute a timely filed claim is a question of fact, and the
commission’s finding will not be disturbed on appeal if supported by credible evidence. See
Fairfax County Sch. Bd. v. Humphrey, 41 Va. App. 147, 158, 583 S.E.2d 65, 70 (2003).
Here, the commission found that claimant’s April 5, 1996 letter, which was filed with the
commission on April 10, 1996, contained sufficient information to constitute a valid, timely filed
claim. The commission’s finding is supported by credible evidence. The April 5, 1996 letter
properly listed claimant’s name, employer’s name, employer’s location, and the date of the
accident. Furthermore, it expressly noted that claimant’s injury was to “both legs” and that claim
was being “made for all benefits to which [claimant] . . . may be entitled pursuant to the Virginia
Workers’ Compensation Act.” Such information was plainly adequate to notify employer of the
injury for which it was potentially liable and to apprise the commission that a claim was being
made. Accordingly, we uphold the commission’s finding that the information in the April 5,
1996 letter was sufficient to constitute a valid, timely filed claim.
We therefore reject as meritless employer’s assertion that claimant’s request for
temporary disability benefits was time barred because the April 5, 1996 letter did not constitute a
valid claim.
We next turn to claimant’s contention that the commission erred in finding he abandoned
his April 10, 1996 claim for disability benefits. That finding, claimant argues, is unsupported by
the evidence in the record. Hence, he concludes the commission erred as a matter of law in
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making that finding and in ruling, based thereon, that his October 29, 2003 request for temporary
disability benefits was time barred.
“Although the findings of the . . . [c]ommission, if based on credible evidence, are
conclusive and binding upon us, the [c]ommission’s findings of fact are not binding upon us
when there is no credible evidence to support them. The question of sufficiency of the evidence
then becomes one of law.” Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279,
348 S.E.2d 876, 877 (1986); see also Hercules v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d
185, 187 (1991) (“Whether credible evidence exists to support a factual finding is a question of
law which is properly reviewable on appeal.”).
In affirming the deputy commissioner’s decision that claimant’s request for disability
benefits was time barred because claimant failed to obtain an award of compensation at the
October 2, 1998 hearing before Deputy Commissioner Phillips, the commission held that
“[i]ssues that are raised and not pursued are deemed abandoned, unless specifically deferred.”
The commission then found that the issue of disability benefits was raised “before Deputy
Commissioner Phillips and could have been litigated” but was not pursued by claimant. The
commission further found that, because claimant’s April 10, 1996 claim for disability benefits
“was disposed of” by Deputy Commissioner Phillips’s April 6, 1999 opinion with “no award of
compensation . . . entered as a result of the [h]earing on that claim” and because claimant did not
appeal the deputy commissioner’s opinion, claimant abandoned his April 10, 1996 claim for
disability benefits.
Upon our review of the record, we agree with claimant that the commission’s analysis is
flawed. While it is true generally that “[i]ssues that are raised and not pursued are deemed
abandoned, unless specifically deferred,” we find no evidence in the record that supports the
commission’s critical finding that the issue of disability benefits was before the deputy
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commissioner at the October 2, 1998 hearing. To the contrary, the evidence in the record makes
it abundantly clear that the only issue before the deputy commissioner at that hearing was the
continuing treatment of claimant by Drs. Bryant and Cole. Indeed, the record supports no other
conclusion.
As previously mentioned, claimant filed a valid claim on April 10, 1996, seeking “all
benefits to which he . . . may be entitled” under the Workers’ Compensation Act in connection
with his March 6, 1996 injury by accident. That claim necessarily included a claim for disability
benefits. Employer accepted the claim as compensable. Both parties acknowledged that no
hearing was needed before the commission at the time since claimant was being paid benefits
under the LHWCA and there were no state-related issues in dispute.
However, on February 20, 1998, claimant requested a hearing regarding the management
of his medical treatment. Claimant asserted that employer was “refusing to authorize treatment”
by Drs. Bryant and Cole, from whom he desired to continue receiving treatment. Claimant
raised no other issue in his request for a hearing. Employer expressly acknowledged that the
only issue in dispute was the continuing treatment by Drs. Bryant and Cole. At the October 2,
1998 hearing on that issue, employer’s sole defense was that Dr. Bryant “should be removed as
treating physician” and another doctor appointed to replace him. The parties stipulated that the
work-related injury claimant sustained on March 6, 1996 was compensable, that employer
accepted claimant’s claim, and that claimant was receiving benefits pursuant to the LHWCA.
No other issues were raised at that hearing. Following the hearing, Deputy Commissioner
Phillips removed Dr. Bryant as claimant’s treating physician and directed employer to provide a
list of qualified physicians from which claimant could “choose a new treating physician.” The
deputy commissioner made no determinations or rulings relating to disability benefits, and
neither party requested review of the deputy commissioner’s opinion.
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It is clear, therefore, that neither party raised any issue relating to claimant’s April 10,
1996 claim for disability benefits before Deputy Commissioner Phillips at the October 2, 1998
hearing. It is also clear that the deputy commissioner did not adjudicate or otherwise “dispose
of” any issue relating to claimant’s claim for disability benefits. The commission’s findings to
the contrary are not supported by the record. Accordingly, we hold the commission erred in
finding that claimant abandoned his April 10, 1996 claim for disability benefits.
Moreover, as the dissenting commissioner pointed out, “the mere fact that the
[c]ommission did not adjudicate . . . claimant’s [claim for] disability [benefits] within two years
of his workplace accident [did] not preclude him from recovering wage loss compensation under
the [Workers’ Compensation] Act.” Indeed, while a “claim for compensation must be filed
within two years after the accident,” the employee “is not required to prove the disability during
the two-year period.” Metro Machine Corp. v. Lamb, 33 Va. App. 187, 192-93, 532 S.E.2d 337,
339 (2000). Rather, the employee must prove that the disability occurred within the two-year
period. See id. at 193, 532 S.E.2d at 339 (“[T]he employee’s claim must allege a present and
existing disability within two years of the accident, and he must prove that disability to receive
benefits.”).
Here, claimant filed a timely claim for disability benefits on April 10, 1996. Although
claimant did not seek a hearing on that claim within two years of the accident, the record
establishes that claimant was disabled as a result of his compensable injury within two years of
the accident. Thus, because claimant did not abandon his claim for disability benefits, we hold
the commission erred in concluding the two-year statute of limitations contained in Code
§ 65.2-601 barred his October 29, 2003 request for temporary disability benefits.
Lastly, we turn to employer’s contention that the doctrine of res judicata also applies to
bar claimant’s October 29, 2003 request for disability benefits. Employer asserts the doctrine of
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res judicata applies here because Deputy Commissioner Phillips’s April 6, 1999 opinion
subsumed claimant’s claim for disability benefits.
The doctrine of res judicata “precludes relitigation of a claim or issue once a final
determination on the merits has been reached.” Commonwealth ex rel. Gray v. Johnson, 7
Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989). “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 a tribunal in a prior cause of action.” Fodi’s v. Rutherford, 26 Va. App. 446, 449,
495 S.E.2d 503, 505 (1998). Moreover, that party must prove the “identity of the remedies sought.”
Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986).
As previously discussed, the sole issue before Deputy Commissioner Phillips at the
October 2, 1998 hearing was whether Dr. Bryant was to be removed as claimant’s treating
physician. The issue of claimant’s claim for disability benefits was not before the deputy
commissioner at that hearing. Accordingly, the instant issue was not previously raised and
decided. Moreover, the remedies sought in a claim for continuing medical benefits are plainly not
the same as the remedies sought in a claim for temporary disability benefits.
Consequently, employer failed to meet its requisite burden of proof. We hold, therefore,
that the commission correctly ruled that the doctrine of res judicata was inapplicable to this case.
III. CONCLUSION
For these reasons, we reverse the commission’s judgment that claimant abandoned his
claim for temporary disability benefits and that the two-year statute of limitations contained in
Code § 65.2-601 barred his claim. Accordingly, we remand this matter to the commission for
further proceedings consistent with this opinion.
Reversed and remanded.
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