COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
RICKY A. MILLER
MEMORANDUM OPINION * BY
v. Record No. 1176-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 20, 2001
ISLAND CREEK COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
D. Edward Wise, Jr. (Arrington, Schelin &
Herrell, P.C., on brief), for appellant.
Michael F. Blair (Lisa Frisina Clement; Penn
Stuart, on brief), for appellee.
Ricky A. Miller (claimant) contends the Workers'
Compensation Commission (commission) erred in terminating his
temporary total disability benefits from Island Creek Coal
Company (employer). Specifically, claimant argues employer's
change-in-condition application is barred by the doctrine of res
judicata, or, in the alternative, the evidence is insufficient
and does not support the commission's decision to terminate
claimant's benefits. Finding no error, we affirm.
I. FACTS
We view the evidence in the light most favorable to the
party prevailing below. See Westmoreland Coal Co. v. Russell,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The
commission's factual findings will be upheld on appeal if
supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"The fact that there is contrary evidence in the record is of no
consequence." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991).
So viewed, claimant, an electrician, sustained a
compensable injury on January 31, 1998. Employer accepted the
claim, and benefits were paid accordingly. Claimant was
released to return to full duty work June 15, 1998. However,
claimant chose to retire at that time rather than return to
work. The commission entered an award for temporary total
disability benefits covering January 31, 1998 through June 15,
1998.
On February 2, 1999, claimant returned to Dr. Alain Desy,
his treating physician, with complaints of continued lumbar
pain. Dr. Desy opined, "[T]here is no history of recent trauma
or injury to his back. It seems that he never was free of
symptoms. I do believe that the symptoms are all related to the
initial lumbar injury he sustained while working in the mines
. . . ." Dr. Desy concluded the claimant was unable to work due
to his compensable work injury. Based on Dr. Desy's medical
report, employer voluntarily reinstated benefits and the
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commission issued an award for temporary total disability
benefits beginning February 2, 1999.
On June 2, 1999, employer sent claimant to Dr. William
McIlwain for an independent medical evaluation. Dr. McIlwain
opined that claimant's "current medical condition as a result of
his injury is improved." However, he also said claimant
exhibited "symptom magnification and positive distraction tests"
that prevented him from determining if claimant was temporarily
totally disabled.
Dr. Desy reviewed Dr. McIlwain's report and "basically
agree[d]" with the recommendations of Dr. McIlwain. Claimant
treated with both physicians from June 1999 to June 2000. In a
letter to the carrier dated March 7, 2000, Dr. McIlwain stated
"[I]t is my feeling that [the claimant's] findings on both
physical examination as well as imaging studies are consistent
with continuing symptoms of spinal stenosis. This pre-existed
his industrial injury." Dr. Desy reviewed Dr. McIlwain's letter
and responded "I don't agree with that finding [of spinal
stenosis] since I never had any clinical evidence of spinal
stenosis initially and after following Mr. Miller for two years.
By reviewing Dr. McIlwain's evaluation of June 1999, I don't
have any clinical findings or signs pointing at the possibility
of spinal stenosis."
Employer filed a change-in-condition application based on
the March letter from Dr. McIlwain. Claimant argued that res
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judicata barred the commission's re-litigation of the earlier
award reinstating benefits in February. The commission found
that the doctrine of res judicata was inapplicable and that the
employer met its burden of proof on the change-in-condition
application and terminated benefits.
II. RES JUDICATA
Claimant first contends employer's change-in-condition
application is barred by the doctrine of res judicata because it
asked the deputy commissioner to "re-litigate" the issue of
causation of claimant's symptoms. We disagree.
"A final judgment based on a determination by the
commission on the issue of causation conclusively resolves the
claim as to that particular injury. Thereafter, absent fraud or
mistake, the doctrine of res judicata bars further litigation of
that claim." AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391
S.E.2d 879, 881 (1990) (citing K & L Trucking Co. v. Thurber, 1
Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)).
Claimant contends that the holding in Ruebush requires
reversal of the commission; however, Ruebush is distinguishable
from the instant case. We held in Ruebush that prior
determinations of causation cannot be re-litigated. That
holding does not prevent employers from challenging the
relationship of a current disability to the compensable work
injury. In Ruebush, the employee filed two change-in-condition
applications. The commission denied the first application
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because it lacked medical documentation. The commission awarded
benefits on the second application incorporating by reference
all prior opinions. Employer argued that a change-in-condition
application did not allow the commission to re-adjudicate its
prior decision on causation. The Supreme Court agreed and set
forth the distinction between employer and employee
applications.
[The difference between an employer's
application for termination of benefits
based on a change in condition and an
employee's application for reinstatement of
disability benefits is that in an employer's
change of condition application] the only
question is whether the employee's prior
condition of work incapacity has changed;
the question of causal connection is not an
issue. On the other hand, when an employee
files an application for reinstatement of
disability benefits, two questions arise:
(1) has there been a change in the
employee's capacity to work; (2) if so, is
the change due to a condition causally
connected with the injury originally
compensated.
King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148
(1984). Accordingly, employer, by filing a change-in-condition
application after the issuance of an award, had to prove that
claimant's prior work incapacity changed and was no longer
related to the work injury.
Pursuant to Code § 65.2-708 1 an employer may, at any time
after the injury, file a change-in-condition application.
1
Code § 65.2-708 provides in pertinent part: A. Upon its
own motion or upon the application of any party in interest, on
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"Where . . . causal connection between an industrial accident
and disability has been established by the entry of an award, an
employer has a right to apply for termination of benefits upon
an allegation that the effects of the injury have fully
dissipated and the disability is the result of another cause."
Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d
687, 690 (1985).
The voluntary reinstatement of benefits by the employer and
the issuance of an award by the commission memorializing the
voluntary reinstatement of benefits does not forever bar the
employer from filing a change-in-condition application
challenging the relationship of the compensable injury to the
claimant's current medical condition. See id. See also
Code § 65.2-708(A). Applying this standard to the instant case,
employer was not re-litigating the cause of claimant's earlier
work-related disability. Rather, it relied on Dr. McIlwain's
assessment that claimant's current condition was unrelated to
his earlier compensable injury and was a result of age-related
spinal stenosis. Thus, we hold the doctrine of res judicata
does not apply.
the ground of a change in condition, the Commission may review
any award and on such review may make an award ending,
diminishing or increasing the compensation previously
awarded . . . .
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III. SUFFICIENCY OF THE EVIDENCE
Claimant next contends that no credible evidence supports
the commission's decision to terminate his benefits and the
employer failed to meet its burden of proof.
"The employer bears the burden of proving by a
preponderance of the evidence the allegations contained in its
application for a change in condition." Westmoreland Coal, 31
Va. App. at 19-20, 520 S.E.2d at 841 (citing Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1970)). In general, the commission will give greater
weight to the treating physician's opinion over a non-treating
physician. See Pilot Freight, 1 Va. App. at 439, 339 S.E.2d at
572. "'The probative weight to be accorded [medical] evidence
is for the Commission to decide; and if it is in conflict with
other medical evidence, the Commission is free to adopt that
view "which is most consistent with reason and justice."'"
Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d
267, 269 (2000) (quoting C.D.S. Services v. Petrock, 218 Va.
1064, 1070, 243 S.E.2d 236, 241 (1978)).
In the instant case, the commission was "more persuaded by
Dr. McIlwain's well-reasoned opinion . . . than . . . Dr. Desy's
less well-explained opinion to the contrary." In reviewing the
evidence, the commission found "Dr. McIlwain's testimony
specifically differentiated between a pre-existing symptomatic
stenoic condition and symptoms attributable to the claimant's
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industrial injury." Further, the commission stated "Dr.
McIlwain's opinion is consistent with the uncontradicted
evidence that the claimant was released to return to his regular
work without restriction by Dr. Desy in June 1998, that he went
nearly eight months without additional medical treatment for any
back pain and that the recurrence of his symptomatology did not
result from any specific aggravation of his back." The record
supports the commission's finding that the claimant's disability
was not related to his compensable injury, and we hold there is
credible evidence to support the commission's decision.
For the foregoing reasons, the decision of the commission
is affirmed.
Affirmed.
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