COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
THEODORE MACK SEAL
v. Record No. 2371-95-2 MEMORANDUM OPINION *
PER CURIAM
THE MUFFLER SHOP, INC. MARCH 19, 1996
AND
ERIE INSURANCE GROUP
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Gerald G. Lutkenhaus, on brief), for
appellant.
(Lynne Jones Blain; Lori Morris Whitten;
Morris & Morris, on brief), for appellees.
Theodore Mack Seal ("claimant") contends that the Workers'
Compensation Commission erred in (1) finding that the doctrine of
res judicata did not bar the commission from considering the
change in condition application filed by Muffler Shop, Inc. and
its insurer (hereinafter collectively referred to as "employer");
(2) finding that employer proved claimant was able to return to
his pre-injury work without restrictions as of April 11, 1995;
and (3) deciding employer's application on-the-record and in
refusing to grant claimant an evidentiary hearing. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Res Judicata
The commission found that employer's April 18, 1995
application was not barred by the doctrine of res judicata. The
April 18, 1995 application presented the issue of whether
claimant could return to his pre-injury work without restrictions
as of April 11, 1995. This issue was not, and could not have
been, previously litigated and determined as to these parties.
Indeed, employer based its April 18, 1995 application upon new
evidence, including Dr. Benjamin R. Allen, Jr.'s April 4, 1995
examination of claimant and claimant's test results, and Dr.
Allen's April 4 and April 11, 1995 reports. Therefore, the
commission did not err in finding that the doctrine of res
judicata did not bar it from considering employer's April 18,
1995 change in condition application.
II. Return to Work
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission 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).
In ruling that employer proved claimant could return to work
without restrictions, the commission accepted the opinion of Dr.
Allen, a neurosurgeon, and rejected the contrary opinion of Dr.
Basava Raj, a neurologist. In April 1995, Dr. Allen opined that
2
claimant's MRI, myelogram, and post-myelogram CT scan did not
reveal any significant discogenic disease. Noting that claimant
might have a complaint of pain, but that he did not have any
neurologic deficit, Dr. Allen concluded that claimant could
return to all activities related to his pre-injury work for
employer. Dr. Allen's opinion constitutes credible evidence to
support the commission's findings. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's finding." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
III. Denial of Evidentiary Hearing
Claimant contends that the deputy commissioner's
on-the-record review of the case denied claimant the opportunity
to testify concerning his inability to perform the duties of his
pre-injury work. He argues that the on-the-record procedure
denied him due process.
The deputy commissioner's use of the on-the-record hearing
procedure satisfied the requirements of due process. "[D]ue
process is flexible and calls for such procedural protections as
the particular situation demands." Mathews v. Eldridge, 424 U.S.
319, 334 (1976). "[T]he fundamental requisite of due process of
law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S.
254, 267 (1970). The commission had before it the issue of
whether claimant had been released to return to his pre-injury
3
work. This case did not require an evidentiary hearing because
such a hearing would not have produced any additional medical
testimony necessary to resolve any conflict in the medical
evidence. See Duncan v. ABF Freight System, Inc., 20 Va. App.
418, 457 S.E.2d 424 (1995); Williams v. Virginia Electric and
Power Co., 18 Va. App. 569, 445 S.E.2d 693 (1994). The
commission properly considered the issue raised by employer's
application as a medical question, which did not require
claimant's testimony regarding his inability to work. Based upon
this record, the commission did not abuse its discretion in
deciding employer's application on-the-record, nor did it deny
claimant due process by refusing to grant his request for an
evidentiary hearing.
For these reasons, we affirm the commission's decision.
Affirmed.
4