Rusty's Welding Service, Inc. v. Gibson

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, * Annunziata, Bumgardner, Lemons and
Senior Judge Overton
Argued at Richmond, Virginia

RUSTY'S WELDING SERVICE, INC. AND
HARLEYSVILLE MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 2552-97-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 2, 1999
EDWARD WAYNE GIBSON

UPON A REHEARING EN BANC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

S. Vernon Priddy, III (Sands, Anderson,
Marks & Miller, on brief), for appellants.

Laura Ann McDonald (Craig B. Davis;
Christopher C. Booberg; Geoffrey R.
McDonald & Associates, on briefs), for
appellee.

Rusty's Welding Service, Inc. (employer) appealed the

commission's award of benefits to Edward Wayne Gibson (claimant).

Employer contended the award was barred by principles of res
judicata and that the award improperly required employer

simultaneously to pay permanent partial disability (PPD) and

temporary partial disability (TPD) benefits. A panel of this

Court agreed and reversed the commission's decision. A hearing

en banc was granted upon the petition of claimant. For the

reasons that follow, we affirm the commission's decision.
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
 I.

THE REHEARING EN BANC

Employer first argues that claimant is barred from having

his argument considered on rehearing en banc and asks this Court

to dismiss his petition on the ground that claimant elected not

to brief the issues on the initial appeal or present argument

with respect to them. Claimant, proceeding pro se and as the

prevailing party, simply stated in writing that he intended to

rely on the previous filings and the decisions of the Workers'

Compensation Commission in the case as his response to employer's

appeal.
In support of its position, employer cites inter alia

Coleman v. City of Richmond, in which we observed that

"[o]rdinarily, a petition for rehearing will not be granted for

the purpose of allowing counsel to submit additional authority

that could have been represented in brief or oral argument." 6

Va. App. 296, 297 n.1, 368 S.E.2d 298, 300 n.1 (1988). Our

decision in Coleman does not establish an absolute bar to
claimant's petition for rehearing en banc. 1 Under the

circumstances of this case, we find no reason which precludes our
1
Although we set forth a general prohibition against the
submission of additional authority on rehearing that could have
been presented before the original panel, in our consideration of
the petition for rehearing in Coleman, we permitted the
presentation of additional authority. Id. at 297-99, 368 S.E.2d
at 299-300 (examining a decision of the United States Supreme
Court on petition for rehearing that the petitioner had not asked
the panel to consider on original appeal).

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consideration of claimant's petition, the brief he filed in

support of it and the argument he advanced before this Court.

Without exception, the authorities claimant cited in his petition

for rehearing are the same as those cited by the original panel's

majority or dissenting opinion. Claimant's arguments are

premised on the original panel's dissenting opinion.

Furthermore, the policy considerations which underlie our

holding in Coleman are not implicated here. The relevant

considerations include the avoidance of surprise to the opposing

party, together with the concomitant and related need to foster

and preserve an orderly and comprehensive review by the appellate

court. A piecemeal consideration of authority serves neither

purpose. In this case, however, neither of these policy

considerations is jeopardized by granting claimant's petition to

rehear this matter en banc. Because the issues raised in

claimant's petition for rehearing en banc are the same as those

considered by the panel and because the authorities upon which

claimant relies in his petition are the same as those cited in

either the majority or the dissenting panel opinion, dismissal of

claimant's petition for rehearing for the reasons advanced by

employer would elevate form over substance. We decline to follow

such a course.

Finally, we find nothing in our rules or the rules governing

proceedings in the Virginia Supreme Court that precludes claimant

from filing a petition for rehearing en banc. See Rules 5A:26,

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5A:33, 5A:34. Accordingly, we decline to adopt the position

urged by employer.

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 II.

RES JUDICATA

We view the relevant facts in the light most favorable to

the claimant. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.

211, 212, 390 S.E.2d 788, 788 (1990). While carrying a bottle of

acetylene on November 12, 1994, claimant sustained an accidental

injury to his back. Employer accepted the injury as compensable

and paid benefits. In applications filed July 16, 1996 and

October 29, 1996, respectively, claimant sought an increase in

TPD benefits, an order holding employer responsible for medical

expenses for claimant's left knee, and an award of PPD benefits

for a 40% impairment to claimant's left leg. All of claimant's

requests were based upon the medical opinion of Dr. Gurpal S.

Bhuller.
After an on-the-record review, the deputy commissioner

issued an opinion on March 4, 1997, in which he wrote that Dr.

Bhuller did not adequately explain how claimant's leg injury was

caused by the compensable back injury. The deputy commissioner

also noted that Dr. Bhuller did not explain that the 40% leg

impairment was permanent or that claimant had reached maximum

medical improvement. He wrote that, "on the evidence before us

we cannot conclude that maximum medical improvement has been

reached and accordingly deny permanent partial disability

benefits at this time." The deputy commissioner ordered

employer's insurance carrier to submit a report showing

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claimant's earnings and employer's payments to claimant, and

concluded as follows:
Accordingly, the claimant's application is
DENIED insofar as it has requested permanent
partial disability benefits for the left leg
and is DENIED to the extent requesting
payment for medical treatment to the left
knee. In all other respects, the claimant's
application is continued on the Dispute
Resolution Docket in accordance with the
provisions of this opinion with the carrier
to comply with the ORDERS stated above.

Neither party sought review of this opinion.
On April 9, 1997, claimant filed another application seeking

PPD benefits for a 40% impairment in his left leg. In support of

his application, claimant submitted an additional opinion of Dr.

Bhuller explaining claimant's 40% impairment in his left leg and

stating that claimant had reached maximum medical improvement.

In an opinion filed May 29, 1997, the deputy commissioner awarded

claimant PPD benefits for a 40% loss of use of his left leg.

Employer was ordered to pay claimant a lump sum of $25,767.70 in

accrued benefits.

On review, the commission acknowledged that Dr. Bhuller's

opinion submitted in support of the May 29, 1997 award "was not

based on a contemporaneous evaluation but represented a more

complete discussion of the basis for the disability rating." The

commission also acknowledged that the issue addressed in the May

29, 1997 opinion was identical to the issue addressed in the

March 4, 1997 opinion. The commission held as follows:
[T]he issue was not determined with finality.
The Deputy Commissioner specifically stated

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 that, based "on the evidence before us,"
permanent partial disability benefits were
denied "at this time" [emphasis added]. The
Commission interprets the Opinion of March 4,
1997, to have left the issue of permanent
partial disability unresolved for future
determination.

The commission also held that it had discretion to order

simultaneous payment of TPD and PPD benefits.

Employer argues that the award of PPD benefits on claimant's

second application is barred by the doctrine of res judicata.

Unlike questions of fact, which are binding on this Court if

supported by evidence, we review questions of law de novo.
Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474

S.E.2d 856, 857-58 (1996).

The doctrine of res judicata is applicable to decisions of

deputy commissioners and the full commission. K & L Trucking

Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302

(1985). Generally, "[r]es judicata precludes the re-litigation

of a claim or issue once a final determination on the merits has

been reached." Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448

S.E.2d 666, 669 (1994). Therefore, 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." Thurber, 1 Va. App. at 219, 337 S.E.2d at 302.

As the party seeking to assert res judicata, employer must

prove that the deputy commissioner rendered a final judgment in

its favor. Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va.

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349, 353, 495 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." 8B Michie's Jurisprudence, Former Adjudication or

Res Judicata § 13 (1994). Furthermore, the employer must prove

by a preponderance of the evidence that the issue previously

raised was decided on the merits. Fodi's v. Rutherford, 26 Va.

App. 446, 449, 495 S.E.2d 503, 505 (1998).
There is no question that, if the hearing remained open for

further evidence, res judicata would not apply to bar appellant's

claim. See Straessle, 253 Va. at 353, 495 S.E.2d at 389. This

is precisely what the commission determined to be the posture of

the case when a second hearing was held before the deputy

commissioner. The commission "interpret[ed] the Opinion of March

4, 1997, to have left the issue of permanent partial disability

unresolved for future determination" and held that the former

adjudication was not final. The commission premised its holding

that the former adjudication lacked finality on the deputy

commissioner's statement in the body of the opinion that PPD

benefits were denied "at this time."

Proceeding from that conclusion, the commission considered

the additional medical evidence which claimant filed with his

second application. The commission described the evidence as "a

new medical report from his treating physician, Dr. Gurpal S.

Bhuller." In the report, Dr. Bhuller fully explained claimant's

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40% permanent partial impairment rating and opined for the first

time that claimant had reached maximum medical improvement.

Employer contends, however, that the body of the deputy

commissioner's opinion should be disregarded, that the operative

holding is stated at the end of the opinion and that the deputy

commissioner's decision, thus viewed, fails to reflect any intent

to hold the hearing open for further evidence. The language upon

which employer specifically relies is contained in the final

paragraph of the deputy commissioner's opinion letter, where the

following conclusion is set forth: "claimant's application is

DENIED insofar as it has requested permanent partial disability

benefits for the left leg."
While no Virginia case directly addresses the issue before

us, we note the general principle that courts have the authority

to interpret their own orders. See Anderson v. Stephens, 875

F.2d 76, 80 n.8 (4th Cir. 1989); Schwinn Cycling & Fitness Inc.

v. Benonis, 217 B.R. 790, 795 (N.D. Ill. 1997). Furthermore,

when construing a lower court's order, a reviewing court should

give deference to the interpretation adopted by the lower court.
See Anderson, 875 F.2d at 80 n.8; Matter of Xonics, Inc. v.

First Wisconsin Financial Corp., 813 F.2d 127, 130 (7th Cir.

1987). We hold that these principles apply when interpreting the

adjudicative orders of an administrative agency. 2
2
We also note the applicability, by analogy, of principles
developed in relation to the Worker's Compensation Commission's
rule-making authority. The commission has the power to make and
enforce rules not inconsistent with the Workers' Compensation Act

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 Principles applicable to the construction of judicial

judgments and decrees are also instructive. Judgments and

decrees entered by courts, and by extension by non-judicial

adjudicative bodies, are the instruments through which they elect

to speak. Thus, when the trier of fact issues an opinion at the

time its decree is entered, the opinion is instructive as to the

decree's reasoning and, by extension, its effect. See Lindsey v.

Lindsey, 158 Va. 647, 653, 164 S.E. 551, 553 (1932) (stating that

opinions entered by a trial court are "often exceedingly useful

and frequently serve to bring to our attention incidents of

importance which would otherwise not be noted in the record, and

which could not readily be made to appear, even by bills of

exception"). See also Middle-West Concrete Forming & Equip. Co.

v. General Ins. Co. of America, 267 S.E.2d 742, 745 n.4 (W. Va.

1980) ("Where the written opinion of the trial court is made part

of the record, the reviewing court may consider the written

opinion in determining the reasons for the trial court's rulings

in order to carry out the provisions of the Act. Code
§ 65.2-201(A); Arellano v. Pam E. K's Donuts Shop, 26 Va. App.
478, 482, 495 S.E.2d 519, 521 (1998). Additionally, the
commission has the power to interpret its own rules. Id. at
482-83, 495 S.E.2d at 521; Brushy Ridge Coal Co. v. Blevins, 6
Va. App. 73, 78 n.2, 367 S.E.2d 204, 206 n.2 (1988). When a
challenge is made to the commission's construction of its rules,
the appellate court's review is limited to a determination of
whether the commission's interpretation was reasonable.
Arellano, 26 Va. App. at 483, 495 S.E.2d at 521. The
commission's interpretation will be accorded great deference and
will not be set aside unless arbitrary or capricious. Specialty
Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235
(1992).

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and judgment."); State ex rel. Moore v. Munchmeyer, 197 S.E.2d

648, 653 (W. Va. 1973) (stating that a decree should be construed

with reference to the court's intent and to other parts of the

record) (citing Beecher v. Foster, 66 S.E. 643, 645 (W. Va.

1909)).

Applying the principles enunciated, we hold that the

commission is entitled to interpret its own orders in determining

the import of its decisions. We further hold that it is within

the commission's discretion to reach beyond the confines of the

ultimate paragraph of the deputy commissioner's opinion and to

examine the opinion of the deputy commissioner as a whole in

order to ascertain the result intended. We further find that the

exercise of its discretion with respect to this issue was

reasonable and not arbitrary or capricious. The record supports

the commission's conclusion that the deputy commissioner's use of

the words "claim denied," followed by the phrase "at this time"

signified a lack of finality in the proceedings. Because the

deputy commissioner's decision was not a final determination on

the merits of the matter before him, the doctrine of res judicata
does not apply. See Cook v. Clinchfield Coal Co., 215 Va. 599,

212 S.E.2d 263 (1975). 3 Accordingly, we affirm the commission's
3
In Cook, the record disclosed that claimant's prior
application "was dismissed by the deputy commissioner because the
medical evidence at the hearing before him failed to disclose the
existence of any occupational disease." The Court held as
follows:

Since claimant could not prove his 1968 claim
by medical evidence before the deputy

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decision that the appellant's claim is not barred under the

principles of res judicata.

commissioner, he was not barred from filing
his second claim when he obtained a positive
diagnosis on June 13, 1973 . . . .

Id. at 600, 212 S.E.2d at 264.

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 III.

THE MERITS

Under well recognized principles governing the standard of

review on appeal, we must affirm the commission's judgment

awarding PPD if those findings are supported by credible evidence

in the record, regardless of whether contrary evidence exists or

contrary inferences may be drawn. See Code § 65.2-706(A);

Stenrich Group v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798

(1996); Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 68,
455 S.E.2d 267, 271 (1995). We find that the commission's

decision is supported by credible evidence and must be affirmed.

When the first application was considered by the deputy

commissioner, the attending physician had expressed no opinion as

to whether claimant had reached maximum improvement from his

work-related injury. Until the deputy or commission received

medical evidence that the injured employee attained maximum

medical improvement, the deputy was without authority to make an

award for permanent injury. See County of Spotsylvania v. Hart,

218 Va. 565, 568, 238 S.E.2d 813, 815 (1977). Therefore, on the

first application for an award based on permanency, the deputy

correctly ruled that "at this time" claimant's request had to be

denied because the compensation provided by Code § 65.2-503 is

not awardable "until the injury has reached a state of

permanency, i.e.[,] maximum [medical] improvement, when the

degree of loss may be medically ascertained." See id.; Nicely v.

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Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531

(1954).

When claimant filed his second application, he attached what

the commission termed "a new medical report from his treating

physician, Dr. Gurpal S. Bhuller." Dr. Bhuller's report

contained claimant's statement that his "symptoms still persist"

and Dr. Bhuller's opinion, for the first time, established that

claimant had reached maximum medical improvement and set forth

the basis for the 40% rating which Dr. Bhuller had given

claimant's lower extremity impairment on August 1, 1996. Dr.

Bhuller's report of March 12, 1997 provides credible evidence to

support the commission's finding that claimant had reached

maximum medical improvement as of August 1, 1996.
Employer further contends on appeal that the commission's

order requiring employer to pay the PPD benefits simultaneously

with ongoing TPD benefits was erroneous. Code § 65.2-503

provides that "[c]ompensation awarded pursuant to this section

[for a scheduled impairment] . . . shall be payable after
payments for temporary total incapacity pursuant to § 65.2-500

. . . [but] may be paid simultaneously with payments for

[temporary] partial incapacity pursuant to § 65.2-502."

(Emphasis added). Employer contends the statutory language

provides employer, rather than the commission, with the

discretion to make simultaneous or successive payments of TPD

and PPD benefits.

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 We disagree. The commission has the power under the

Workers' Compensation Act to enter awards granting or denying

benefits under the Act and dictating the terms under which those

benefits will be paid as long as those terms do not conflict with

the requirements of the Act. See, e.g., Code §§ 65.2-101,

65.2-201. Therefore, the only reasonable construction of Code

§ 65.2-503, which provides that payments for a rating "may be

paid simultaneously with payments for [temporary] partial

incapacity," (emphasis added), is that the commission has

discretion to order such payments. In cases where the commission

does not order such payments, employer would be free to make

simultaneous payments voluntarily.
For these reasons, we affirm the commission's decision

modified to the extent that only the PPD benefits that had

accrued after August 1, 1996 were payable in a lump sum.

Affirmed.

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