COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
PRICE GUTTERING & INSULATING AND
CGU INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0910-01-3 JUDGE G. STEVEN AGEE
OCTOBER 16, 2001
NOLAND JEFFERY KILGORE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kevin T. Streit (James G. Muncie, Jr.;
Midkiff, Muncie & Ross, P.C., on briefs), for
appellants.
P. Heith Reynolds (Wolfe, Farmer, Williams &
Rutherford, on brief), for appellee.
Price Guttering & Insulating and its insurer, CGU Insurance
Company (herein collectively referred to as "the employer"),
appeal from a decision of the Workers' Compensation Commission
awarding benefits to Noland Jeffery Kilgore (the claimant). The
employer contends the commission erred in finding that the
claimant filed his claim for benefits related to his neck within
the statutory period, that the claim was not barred by the
doctrine of res judicata, and the evidence presented was
sufficient to prove that the claimant's treatment was
reasonable, necessary and/or causally related to the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
work-related accident. We disagree with the employer and affirm
the commission's decision.
I. BACKGROUND
On April 5, 1996, the claimant fell off a wet roof on which
he was installing gutters. He fell approximately fourteen feet
to the ground and landed on his right shoulder and right hip.
The subsequent claim for benefits identified an injury to the
right shoulder, but during discovery the claimant submitted
interrogatory answers reflecting a neck injury. In the deputy
commissioner's first opinion, dated September 19, 1996, the
accident was determined to be compensable, and the claimant was
awarded medical benefits for as long as necessary and temporary
total disability benefits from April 5, 1996 through August 16,
1996. The first opinion did not make a finding of fact as to
what injury (shoulder, neck, neither or both) was the "injury by
accident" under Code § 65.2-101.
On July 2, 1999, the claimant filed a second claim with the
commission seeking an order requiring the employer to pay his
unpaid medical expenses pursuant to the first opinion, including
certain expenses related to claimed injuries to his neck. The
employer defended on the basis that the treatment provided was
not causally related to the April 1996 accident, that the
claimant suffered only an injury to his right shoulder as a
consequence of the accident, and that treatment to the neck or
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any other conditions claimed to be causally related to the
accident were barred by the doctrine of res judicata.
The deputy commissioner who wrote the first opinion also
wrote a second opinion, dated October 19, 1999. In pertinent
part, the second opinion contained the following discussion:
[T]he previous opinion found that the
claimant suffered an injury to the right
shoulder . . . .
* * * * * * *
[W]e do not have [a medical] opinion based
upon a complete and accurate history
advising what injuries claimant may have
suffered in addition to the right shoulder.
. . . [C]laimant denied having any previous
difficulties with his neck and upper back
. . . . With the record we have been
presented with . . . we have no way of
determining whether or not specific
treatment that has not been paid for was for
injuries claimant suffered on April 5, 1996.
It was then ordered that the employer was to pay for all
treatment associated with the right shoulder, but "any other
treatment not causally related to that injury or reasonable and
necessary to treat that injury are not the responsibility of
[the employer]."
The claimant timely appealed this decision to the full
commission. The employer argued that the treatment to the
claimant's neck was not causally related to the April 1996
accident, was not timely filed under Code § 65.2-601 and, in the
alternative, that the first opinion only covered treatment for
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the right shoulder, not the neck, and re-litigation was barred
by the doctrine of res judicata.
In an opinion dated March 6, 2001, a majority of the full
commission found "that the evidence clearly preponderates that
the claimant's neck and right shoulder symptoms are causally
related to his accident." The opinion cites numerous references
in the claimant's medical file of complaints of neck pain and
diagnoses of cervical strain by several physicians. The
commission found that Dr. Kanwal, the treating internist since
the accident, had "stated unequivocally that the shoulder and
neck problems are causally related." It is also noted that
Dr. Ahmad, who has treated the claimant since 1997, opined that
the shoulder and neck problems were causally related.
The commission rejected the statute of limitations and the
res judicata arguments. Regarding res judicata, the majority
opined that the deputy commissioner's first opinion, which
awarded benefits, did not exclude a neck injury. Commissioner
Tarr dissented as to the res judicata determination.
II. ANALYSIS
On appeal, the employer contends (1) the commission lacked
jurisdiction to award benefits for a neck injury because
claimant failed to file a timely claim for these injuries; (2)
the commission failed to properly apply the doctrine of res
judicata, which would bar consideration of the claimant's neck
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injury claims; and (3) even if the commission had jurisdiction
and res judicata does not apply, the record contains no evidence
to support the commission's finding of causation. We disagree
with these contentions and affirm the opinion of the commission.
A. Statute of Limitations
"The right to compensation under [the Workers' Compensation
Act] shall be forever barred, unless a claim be filed with the
Commission within two years after the accident." Code
§ 65.2-601; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499,
237 S.E.2d 794, 796-97 (1977). "This is the notice which
activates the right of the employee to compensation and which
invokes the jurisdiction of the [Workers' Compensation
Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73,
197 S.E.2d 191, 194 (1973).
It is the intent of Code § 65.2-601 that, within the time
prescribed by the section,
an employee must assert against his employer
any claim that he might have for any injury
growing out of the accident. . . . Failure
to give such notice within [the statutorily
prescribed period] would seriously handicap
the employer . . . in determining whether or
not there was in fact an injury, the nature
and extent thereof, and if related to the
accident. The reason for the limitation
. . . is a compelling one.
Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d
849, 853 (1975).
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While the only injury listed by the claimant in his initial
claim form was "[i]njury to right shoulder," he identified a
neck injury in response to the interrogatory request to
"[d]escribe in detail and with particularity each and every
injury which you contend you suffered as a result of your
alleged accidental injury." This discovery answer was placed
into evidence in 1996, prior to the first opinion. Accordingly,
the employer and the commission were on notice that the claimant
was complaining of a neck injury in 1996. This is well within
the statute of limitations so the Shawley doctrine does not
apply.
At oral argument, but not by brief, the employer cited our
recent unpublished opinion in McKee Foods Corporation v. Atkins,
No. 2727-00-3 (Va. Ct. App. July 3, 2001), as support for its
Shawley claim. McKee, though, is clearly distinguishable as the
employer in that case was only notified of injuries listed in
the parties' Memorandum of Agreement. The untimely claimed
injury in McKee was not listed. In the case at bar, by
contrast, the employer was provided specific timely notice by
the claimant of his neck injury in direct answer to the
employer's interrogatories.
B. Res Judicata
The doctrine of res judicata is applicable to decisions of
deputy commissioners and the full commission. K & L Trucking
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Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302
(1985). "'Res judicata precludes the re-litigation of a claim
or issue once a final determination on the merits has been
reached.'" Rusty's Welding Service, Inc. v. Gibson, 29 Va. App.
119, 128, 510 S.E.2d 255, 259 (1999) (quoting Gottlieb v.
Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669 (1994)).
Therefore, when a decision has been made, absent fraud or
mistake, the decision of the commission or a deputy commissioner
from which no party seeks timely review is binding upon the
commission. Thurber, 1 Va. App. at 219, 337 S.E.2d at 302.
It is the employer's contention that the first opinion,
issued by the deputy commissioner in 1996, determined that the
claimant suffered only an injury to his right shoulder, and,
since a neck injury was complained of at that time, the claimant
was barred from later making a claim based on the neck injury.
It is further argued that any ambiguity relating to the neck
injury determination in the first opinion was clarified by the
same deputy commissioner's second opinion. The employer reads
the second opinion to definitively hold the claimant sustained
only a shoulder injury. The full commission disagreed, finding
"the initial hearing, which awarded benefits, did not exclude
neck treatment." We agree with the commission's determination.
We dealt with the basic principles regarding the
application of res judicata to decisions of the commission in
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Rusty's Welding Service, 29 Va. App. at 126-31, 510 S.E.2d at
258-61. Accordingly, we review de novo the commission's
determination as to the applicability of res judicata, a
question of law. Id. at 128, 510 S.E.2d at 259.
As the party seeking to assert res judicata
the employer must prove that the deputy
commissioner rendered a final judgment in
its favor. Generally, a judgment is final
for the purposes of res judicata when
"nothing more is required to settle the
rights of the parties or the extent of those
rights." Furthermore, the employer must
prove by a preponderance of the evidence
that the issue previously raised was decided
on the merits.
Id. (internal citations omitted).
The employer has failed to meet its burden. The first
opinion is vague and does not identify, from among the injuries
in evidence, which injury (or injuries) is the basis for the
finding of "injury by accident." Even if the deputy
commissioner thought he made a finding excluding recovery for
the neck injury in the first opinion, there is nothing in the
first opinion by which anyone could determine he did so. The
commission, like the trial court, speaks through its orders.
Id. at 129, 510 S.E.2d at 260. We cannot say the neck injury
was litigated and decided at the 1996 hearing, as a matter of
law.
We find no support for the employer's contention that the
deputy commissioner's second opinion can retroactively rewrite
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the first opinion to exclude the neck injury. While the second
opinion identifies a right shoulder injury, it does not exclude
a neck injury. Even assuming, arguendo, that the deputy
commissioner's second opinion made a determination excluding a
neck injury, this is the first time that determination was
communicated and the claimant timely appealed the second
opinion. We, therefore, cannot say as a matter of law that the
full commission erred in finding the doctrine of res judicata
inapplicable.
C. Causation
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 789 (1990). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
In ruling that the claimant proved by a preponderance of
the evidence that the treatment provided to him for his neck was
causally related to his 1996 compensable injury by accident, the
commission found as follows:
From this record, we find the evidence
clearly preponderates that the claimant's
neck and right shoulder symptoms are
causally related to his accident.
Dr. Kanwal, the internist who has treated
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him since the accident, stated unequivocally
that the shoulder and neck problems are
causally related. Dr. Ahmad, who has
treated him since August 1997, has also
stated unequivocally that the cervical and
right shoulder conditions are causally
related. It is well established that when
faced with conflicting medical opinions, the
Commission gives greater deference to the
unequivocal opinions of the treating
physicians than to the opinion of a
non-treating independent medical evaluator.
Pilot Freight Carriers v. Reeves, 1 Va. App.
435, 439, 339 S.E.2d 570, 572 (1986). We[,]
therefore[,] find that the neck and right
shoulder conditions are reasonable,
necessary[] and causally related to the
compensable accident.
In its role as fact finder, the commission was entitled to weigh
the medical evidence, to accept the opinions of Drs. Kanwal and
Ahmad, and to reject any contrary medical opinions. The
opinions of the treating physicians constitute credible evidence
to support the commission's decision. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's decision." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). Moreover, "[i]n determining whether credible evidence
exists, the appellate court does not retry the facts, reweigh
the preponderance of the evidence, or make its own determination
of the credibility of the witnesses." Id.
For these reasons, we affirm the commission's decision.
Affirmed.
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