COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
EASTMAN KODAK COMPANY
v. Record No. 1406-95-2 MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
RICHARD R. STREMOVIHTG MARCH 26, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard L. Butler (Anderson & Quinn, on brief),
for appellant.
No brief or argument for appellee.
Eastman Kodak Company appeals the Workers' Compensation
Commission's decision awarding Richard R. Stremovihtg (claimant)
temporary total disability benefits from May 5, 1992 through
May 5, 1994 and all medical expenses. Eastman contends that the
commission erred by (1) holding that claimant's claim was not
barred by the two-year statute of limitations under Code
§ 65.2-708(A), (2) that claimant suffered a change in condition
beginning May 6, 1992, (3) that Eastman was barred from raising
the defense of voluntary retirement, and (4) that claimant had
been referred by his attending physician for certain chiropractic
treatment. For the following reasons, we affirm in part and
reverse in part.
On June 28, 1991, claimant sustained injuries to his back,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hip, and thigh in an accident that occurred in the course of his
employment with Eastman. He received full wages from June 28,
1991 through November 30, 1991. On December 1, 1991, he
voluntarily left his job with Eastman in return for enhanced
retirement benefits.
On November 22, 1991, claimant filed a claim with the
commission for temporary total benefits for his injuries
resulting from the accident. A hearing was held before Deputy
Commissioner Tabb on May 5, 1992. On March 16, 1992, Dr.
Christopher Young, claimant's treating physician, had returned
the claimant to regular work. At the time of the hearing,
claimant was also receiving chiropractic care from Dr. Michael D.
Pollock.
Based upon a May 5, 1992 hearing, Deputy Commissioner Tabb
awarded claimant temporary total disability benefits from July 2,
1991 through March 16, 1992. The deputy commissioner found that
Dr. Young had not referred claimant to Dr. Pollock for
chiropractic treatment, but only had acknowledged that if
claimant independently sought such treatment it would not
conflict with his treatment of the claimant. In addition, the
deputy commissioner stated that he did not "find any indication
that the claimant took early retirement on December 1, 1991 or
that he failed to cooperate with vocational rehabilitation
efforts." The deputy commissioner found that claimant had been
released to return to work on March 16, 1992, and had not proved
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that he was thereafter disabled or as of the May 5, 1992 hearing.
On June 18, 1992, claimant, alleging a change in condition,
filed a second claim for benefits. In support of this claim, he
submitted a report by Dr. Pollock dated May 4, 1992. On July 29,
1992, an assistant claims examiner informed claimant by letter
that the commission would take no further action on the second
claim because Dr. Pollock's report had been addressed by Deputy
Commissioner Tabb in the May 1992 decision. No further action
was taken on that claim until August 1994 when claimant submitted
additional medical documents in support of the June 1992 change
in condition application. The commission scheduled a hearing for
November 21, 1994. As a result of that hearing, the commission
found a change in condition as of May 5, 1992, and awarded
temporary disability benefits through May 5, 1994, and medical
benefits. The employer appealed.
I. Statute of Limitations
Code § 65.2-708(A) provides that "no [review by the
commission of an application for a change in condition] shall be
made after twenty-four months from the last day for which
compensation was paid, pursuant to an award under this title."
This Court has interpreted Code § 65.2-708(A) to mean that "the
change in condition must occur within twenty-four months from the
date compensation was last due or paid." Armstrong Furniture v.
Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987). Eastman
contends that the letter from the assistant claims examiner in
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July 1992 informing claimant that no further action would be
taken on his claim constituted a dismissal of the claim, and that
as a result, claimant did not file his claim within two years of
March 16, 1992.
Workers' Compensation Commission Rule 1.3 provides that an
employee's claim "may be dismissed upon motion of the employer
after notice by the Commission to the parties" if the employee
does not file supporting evidence within ninety days after the
claim is filed. Although claimant did not file the supporting
evidence within ninety days, the record does not reveal that
Eastman filed a motion to dismiss the claim, and even had it done
so, the commission had discretion whether to grant the motion.
Furthermore, the commission acted in accordance with the Code by
adjudicating the claim despite the fact that claimant did not
produce the additional medical evidence until August 1994.
Claimant was not required to produce the evidence prior to the
expiration of the statute of limitations so long as the claim
alleged a change in condition existing at the time of the filing.
See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508,
510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
675, 678, 401 S.E.2d 213, 215 (1991). Accordingly, the
commission did not err in holding that the claim was timely
filed.
II. Change in Condition
Eastman next challenges the commission's finding that the
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claimant "was disabled beginning May 6, 1992." The commission
stated that:
[t]his finding is based upon Dr. Pollock's
reports of May 4, 1992, and August 12, 1993.
In his report of May 4, 1992, he clearly
indicated that the claimant should not work
pending further improvement. Dr. Pollock's
report of August 12, 1993, reflects
continuing treatment, improvement, and an
apparent discharge from chiropractic care.
However, there was no release to return to
any form of employment.
In order for the commission to have found that claimant proved a
change in his condition and that he became disabled on May 6,
1992, the commission necessarily relied upon, as it stated, the
May 4, 1992 and August 12, 1993 reports of Dr. Pollock. However,
the August 12, 1993 letter does not in any way support a finding
that beginning in May of 1992, the claimant was disabled from his
pre-injury employment to which he had been previously released.
Thus, the only other evidence in the record that the commission
could or did consider to prove that claimant was disabled on May
6, 1992, was the May 4, 1992 letter. In order to infer from the
letter of May 4, 1992 that the claimant was disabled on May 6,
1992, the commission necessarily had to find that claimant was
disabled on May 4, 1992. However, Deputy Commissioner Tabb ruled
in his May 1992 opinion that claimant was not disabled on May 4,
1992. That fact has been finally decided. Thus, although
claimant could have offered evidence to prove a change in
condition and disability on May 6, 1992, the August 12, 1993
report did not do so and the claimant could not prove that he
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became disabled on May 6, 1992, by attempting to show that he was
disabled on May 4, by using the identical evidence that had been
found insufficient.
The doctrine of collateral estoppel applies "in a subsequent
action based upon a collateral and different cause of action."
Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974)
(emphasis in original). "Under the principle of collateral
estoppel, 'the parties to the first action and their privies are
precluded from litigating [in a subsequent action] any issue of
fact actually litigated and essential to a valid and final
personal judgment in the first action.'" Slagle v. Slagle, 11
Va. App. 341, 344, 398 S.E.2d 346, 348 (1990) (quoting Norfolk &
W. Ry. v. Bailey Lumber Co., 221 Va. 638, 640, 272 S.E.2d 217,
218 (1980)). "[A]n appropriate test for determining the identity
of issues involved in former and subsequent actions is 'whether
the same evidence will support both actions.'" Allegheny
Airlines, Inc. v. Merillat, 14 Va. App. 341, 343, 416 S.E.2d 467,
469 (1992) (quoting Graham v. Virginia Elec. & Power Co., 230 Va.
273, 277, 337 S.E.2d 260, 263 (1985) (quoting Pickeral v. Federal
Land Bank, 177 Va. 743, 751, 15 S.E.2d 82, 85 (1941))).
Here, Deputy Commissioner Tabb had considered Dr. Pollock's
report of May 4, 1992, in which Dr. Pollock stated that in his
opinion claimant was unable to work. Deputy Commissioner Tabb
relied "more heavily on the opinion of Dr. Young," awarded
temporary total disability benefits through March 16, 1992, when
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claimant had been released to return to work, and denied the
claim for benefits thereafter. Deputy Commissioner Tabb
necessarily found that claimant was not disabled on May 4, 1992.
Therefore, in order for the claimant to prove a change in
condition after the 1992 decision, the commission was precluded
from finding that the claimant was disabled on May 4, 1992,
unless additional evidence not considered at the 1992 hearing
proved that claimant became disabled on or after that date.
Consequently, the letter of May 4, 1992 does not support the
commission's finding that the claimant was disabled on May 6,
1992. Because the commission's finding that the claimant was
disabled beginning May 6, 1992 is not supported by credible
evidence, we reverse the award of temporary total disability
benefits.
III. Voluntary Retirement
At the May 1992 hearing, Eastman argued that claimant was
barred from recovering disability benefits because he voluntarily
retired on December 1, 1991, but Deputy Commissioner Tabb held
that there was no "indication that the claimant took early
retirement on December 1, 1991." As a result of this finding,
the deputy commissioner awarded claimant temporary total
disability benefits through March 16, 1992. Therefore, the
defense of voluntary retirement was "actually litigated and
essential to" the May 1992 award. Accordingly, the commission
did not err in holding that Eastman was collaterally estopped
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from raising this defense at the November 1994 hearing. Slagle,
11 Va. App. at 344, 398 S.E.2d at 348 (quoting Bailey Lumber Co.,
221 Va. at 640, 272 S.E.2d at 218). No new evidence was
presented to prove that the claimant had retired.
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IV. Referral
In the May 1992 opinion, Deputy Commissioner Tabb stated
that "we do not find that Dr. Young's letter of May 1, 1992 is a
referral of the claimant for chiropractic treatment but only an
acknowledgement that the claimant may so independently seek such
treatment." Nonetheless, the commission held that Eastman was
responsible for chiropractic treatment rendered by Dr. Pollock
beginning May 6, 1992. The commission based this holding on a
letter dated December 2, 1993, in which Dr. Young states that
"[p]rior to [the claimant's] chiropractic treatment [he] spoke
with Dr. Michael Pollock concerning [the claimant's] care and
authorized [the claimant's] care with Dr. Pollock."
Deputy Commissioner Tabb's finding that Dr. Young did not
refer the claimant for chiropractic treatment prior to May 5,
1992 does not preclude the claimant from proving as part of his
subsequent claim alleging a change in condition that Dr. Young
thereafter referred claimant to Dr. Pollock subsequent to May 5,
1992. See Mace v. Merchants Delivery Moving & Storage, 221 Va.
401, 405, 270 S.E.2d 717, 719 (1980) (holding that "a change in
an attending physician's opinion concerning an employee's ability
to resume work" is sufficient to prove a change in condition).
Obviously, Dr. Young's letter of December 2, 1993 was not before
Deputy Commissioner Tabb, nor "available and known" at the time
of the May 5, 1992 hearing. Cf. Mize v. Rocky Mount Ready Mix,
Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991) ("Failing
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to obtain the medical records which were available and known does
not constitute due diligence."). Dr. Young's letter proves that
he subsequently referred the claimant to Dr. Pollock, and is
sufficient to require that we affirm the commission's holding
that Eastman is responsible for all medical treatment rendered by
Dr. Pollock beginning May 6, 1992.
In summary, we hold that the commission erred by awarding
claimant temporary total disability benefits, but did not err in
awarding the medical benefits authorized by the attending
physician. Therefore, we reverse the commission's decision in
part and remand with instructions to enter an order consistent
with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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