COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
TARIF SHABAZZ ALLAH
v. Record No. 0929-95-2 MEMORANDUM OPINION *
PER CURIAM
ROCKINGHAM CONSTRUCTION COMPANY SEPTEMBER 19, 1995
AND
ARGONAUT MIDWEST INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Tarif Shabazz Allah, pro se, on brief).
(Alan D. Sundburg; Friedlander, Misler, Friedlander,
Sloan & Herz, on brief), for appellees.
Tarif Shabazz Allah ("claimant") contends that the Workers'
Compensation Commission erred in finding (1) that he was not
entitled to an award of temporary total disability benefits from
April 15, 1993 through August 5, 1994; (2) that he unjustifiably
refused selective employment offered to him by Rockingham
Construction Company ("employer"); and (3) that employer was not
responsible for the cost of treatment rendered to claimant at the
Medical College of Virginia ("MCV"). 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.
I. and II.
In denying claimant's application, the commission adopted
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and affirmed the deputy commissioner's findings of fact and
conclusions of law. In holding that claimant did not prove the
total disability he claimed, the deputy commissioner found as
follows:
We agree with the defendants that the period
claimed from April 15, 1993 through November
9, 1993 was adjudicated in the December 7,
1993 Opinion as at the November 9, 1993
hearing [claimant] claimed continuing total
incapacity from July 13, 1992. Accordingly,
the finding of no disability from April 15,
1993 up to the time of the hearing is res
judicata. Moreover, pursuant to Rule 1.2 B,
additional benefits may not be awarded more
than ninety days before the filing of a
change in condition application. As a
result, benefits are not awardable earlier
than mid-June 1994. However, thereafter the
claimant was clearly capable of light duty
and thus was under an obligation to make a
reasonable effort to market his residual
capacity in order to receive compensation for
total work incapacity . . . . However, the
claimant made no such effort and no effort to
accept previously offered employment with the
defendant employer. As a result, he has not
proven the total disability claimed.
At the November 9, 1993 hearing, claimant sought temporary
total disability benefits from January 13, 1992, the date of
accident, and continuing. In the December 7, 1993 opinion, the
deputy commissioner ruled that claimant was released to light
duty employment as of November 12, 1992. Because claimant had
refused employer's offer of selective employment and had not made
any effort to secure suitable employment on his own, the deputy
commissioner ruled that claimant was not entitled to temporary
total disability after November 12, 1992. This ruling was not
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properly appealed to the full commission. Therefore, it became
final as to these parties.
Res judicata . . . precludes relitigation of
a claim or issue once a final determination
on the merits has been reached by a court of
competent jurisdiction . . . . In short,
once a matter or issue has been adjudicated,
it may be relied upon as conclusive between
the parties, or their privies, in any
subsequent suit.
Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376
S.E.2d 787, 788 (1989).
In his September 16, 1994 application, which is the subject
of this appeal, claimant sought temporary total disability
benefits for the same period of time previously litigated and
determined as to these parties in the December 7, 1993 opinion.
Accordingly, the commission did not err in finding that res
judicata barred claimant from receiving an award of temporary
total disability benefits from April 15, 1993 through November 9,
1993.
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).
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless
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claimant's evidence sustained his burden of proving total
disability as a matter of law, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission's finding that temporary total disability
benefits were not awardable before mid-June 1994 is supported by
Rule 1.2 B of the Rules of the Virginia Workers' Compensation
Commission. Moreover, its finding that claimant was not entitled
to an award of benefits from mid-June 1994 through August 5, 1994
is supported by Dr. Donald L. MacNay's opinions and claimant's
testimony. On November 12, 1992, Dr. MacNay released claimant to
light to moderate duty work. Dr. MacNay reiterated this opinion
in June 1994. Claimant admitted that his physical condition had
not changed since the last hearing on November 9, 1993, that he
had not sought further work from employer, and that he had not
sought work on his own (aside from submitting one job application
on October 25, 1994). Based upon this evidence, we cannot say as
a matter of law that claimant met his burden of proving a
compensable change in condition.
Accordingly, the commission did not err in denying
claimant's application seeking an award of temporary total
disability benefits from April 15, 1993 through August 5, 1994.
III.
It was undisputed that claimant chose Dr. MacNay as his
treating physician, and that he did not seek a referral from Dr.
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MacNay, employer, insurer, or the commission when he relocated to
Richmond and began seeking treatment at MCV. In 1993, claimant
sought treatment at the MCV emergency department and from Dr.
James B. Wade at MCV. In 1994, claimant continued to seek
treatment from Dr. MacNay while also seeking treatment from Dr.
James B. Carr at MCV. Based upon this evidence, the commission
did not err in finding that the treatment rendered to claimant at
MCV was unauthorized.
"Without a referral from an authorized treating physician,
Code § 65.2-603(C) provides for treatment by an unauthorized
physician in an 'emergency' or 'for other good reason.'"
Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421
S.E.2d 483, 485 (1992).
[I]f the employee, without authorization but
in good faith, obtains medical treatment
different from that provided by the employer,
and it is determined that the treatment
provided by the employer was inadequate
treatment for the employee's condition and
the unauthorized treatment received by the
claimant was medically reasonable and
necessary treatment, the employer should be
responsible, notwithstanding the lack of
prior approval by the employer.
Id. at 212, 421 S.E.2d at 486. Claimant did not present evidence
to prove that he sought unauthorized treatment from MCV in good
faith, that the treating physician, Dr. MacNay, rendered
inadequate treatment, or that the unauthorized treatment received
by claimant was medically reasonable or necessary. Therefore, we
cannot say as a matter of law that the commission erred in
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concluding that employer was not responsible for the cost of the
unauthorized treatment rendered at MCV.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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