dissenting:
I must respectfully dissent from the majority opinion because I think it misconstrues the application of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943) and Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), and because it ignores the principle — virtually axiomatic in this area of the law — that workmen’s compensation laws are to be construed liberally in furtherance of their remedial purpose.
I. FULL FAITH AND CREDIT
The lynchpin of the Supreme Court's holding in Magnolia was the Court’s finding that the Texas workmen’s compensation statute at issue was intended to be exclusive of all other remedies, including remedies afforded by the workmen’s compensation laws of other states. The Court based its conclusion on an express statutory provision and on Texas’ judicial interpretation of the statute:
[Ujnder this statute a compensation award may not be had in Texas if the employee has claimed and received compensation for his injury under the laws of another state.
Magnolia Petroleum Co. v. Hunt, 320 U.S. at 435, 64 S.Ct. at 212 (citations omitted). From this the Court apparently inferred that the converse was also true: that once a remedy was obtained pursuant to the Texas statute, it operated to preclude successive awards pursuant to other states’ workmen’s compensation laws by application of full faith and credit.
Significantly, the Court withheld the question of the full faith and credit or res judicata effect of a workmen’s compensation award made pursuant to a statute not held to be exclusive.
We have no occasion to consider what effect would be required to be given to the Texas award if the Texas courts held that an award of compensation in another state would not bar an award in Texas, for as we have seen, Texas does not allow such a second recovery.
Id. at 443, 64 S.Ct. at 215 (emphasis added). This question was answered four years later in the Court’s unanimous opinion in McCar-tin, holding that an award pursuant to the Illinois workmen’s compensation statute was not a bar to a subsequent award in Wisconsin. The Court first noted that an award under the Illinois statute operated to bar any right of action under Illinois common law or under the Illinois Personal Injuries Act. Industrial Commission of Wisconsin v. McCartin, 330 U.S. at 627, 67 S.Ct. 886.
To that extent, the [Illinois] Act provides an exclusive remedy.
But there is nothing in the statute or in the decisions thereunder to indicate that it is completely exclusive, that it is designed to preclude any recovery by proceedings brought in another state for injuries received there in the course of an Illinois employment. And in light of the rule that workmen's compensation laws are to be liberally construed in furtherance of the purpose for which they were enacted, we should not readily interpret such a statute so as to cut off an employee’s right to sue under other legislation passed for his benefit. Only some unmistakable language by a state legislature or judiciary would warrant our accepting such a construction.
Id. at 627-28, 67 S.Ct. at 889 (emphasis added and citations omitted).
As the majority correctly notes, in McCartin there was a settlement between *633the parties which operated as a consent to the subsequent award in Wisconsin. Thus, the Supreme Court did not rest its decision solely upon its construction of the Illinois statute. Id. at 628, 67 S.Ct. 1545. But the importance of the statutory construction was re-emphasized when the Court formulated its holding in McCartin, and appears to be the principal ground of distinction from Magnolia.
But when the reservation [the agreement] in this award is read against the background of the Illinois Workmen’s Compensation Act, it becomes clear that the reservation spells out what we believe to be implicit in that Act — namely, that an Illinois workmen’s compensation award of the type here involved does not foreclose an additional award under the laws of another state.
Id. at 630, 67 S.Ct. at 890 (emphasis added).
McCartin did not overrule Magnolia. However, most commentators agree that when state compensation laws are evaluated in light of the admonition in McCartin —for “unmistakable language” indicating that such laws are exclusive of any rights an employee may have under other states’ compensation laws — successive awards should be sanctioned in almost every jurisdiction. See 4 A. Larson, The Law of Workmen’s Compensation §§ 85.10-.40 (1976). Most courts confronted with this issue have so interpreted the compensation statutes. Larson, supra at § 85.40. This reasoning is in accord with the accepted notion that such laws should be construed liberally in favor of employees, and with sister states’ interests in seeing that such employees do not become their public charges.
Turning to the Virginia statute at issue, Code of Va. § 65.1 — 40 (1973 Replacement Volume), I cannot agree with the majority’s conclusion that it is exclusive of any rights an employee may have under the workmen’s compensation laws of another state. Certainly it is exclusive of any right of action against the employer under the common law of Virginia, e. g., Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469, 471 (1947), even if the compensation award was rendered in a different state. Home Idem. Co. v. Poladian, 270 F.2d 156 (4th Cir. 1959). Presumably it would also be exclusive of any other Virginia statutory remedies, as was the Illinois statute construed in McCartin. But I cannot find a single case in which the Virginia courts have addressed the issue of whether the statute operates to bar awards under the compensation laws of other states; and the majority cites no law or legislative pronouncements to this effect.1 Indeed, deci-sional law emphasizes that the remedy under the statute is intended to be exclusive only as to an employee’s right to sue his employer for damages. Fauver v. Bell, 192 Va. 518, 526, 65 S.E.2d 575, 580 (1951). Therefore, the majority ignores the mandate of the McCartin court, the great weight of authority, and the principles of workmen’s compensation law to read tbtal exclusivity into the silent Virginia statute.
II. RES JUDICATA AND COLLATERAL ESTOPPEL
Assuming that a remedy under the Virginia statute is not exclusive of one under the laws of the District of Columbia, is Pettus’ claim otherwise barred by operation of either res judicata or collateral estoppel? I think not.
The doctrine of res judicata bars relitigation of issues already decided by a court of competent jurisdiction in a lawsuit between the same parties, or litigation of issues which could have been raised and decided in the previous lawsuit.2 See IB Moore’s Federal Practice K 0.405 (1974). Applying these principles in the context of workmen’s com*634pensation awards, it is clear that if the remedy under one state’s law is exclusive of any other state’s statutory remedies, the doctrine would apply where a subsequent award is sought in a second state. In such a case there is an initial choice of law made in the original proceeding, and that choice is accorded res judicata finality. See Magnolia Petroleum Co. v. Hunt, 320 U.S. at 437, 64 S.Ct. at 212. However, if the remedy under one state’s law is not exclusive, there is no choice of law made. The administrative tribunal in State A determines only whether the claim falls under the workmen’s compensation law of State A; it does not, and could not, determine whether the claim might also be compensable under the workmen’s compensation laws of State B. Thus in a subsequent proceeding in State B, this issue is one not previously litigated and one which could not have been litigated. No res judicata effect attaches. See Newport News Shipbuilding and Dry Dock Co. v. Director, Office of Workers’ Compensation Programs et al., 583 F.2d 1273 at 1278 (4th Cir. 1978). To hold otherwise would undercut the holding in McCartin and render that opinion a nullity.
Here, the Virginia statute at issue is not exclusive of an employee’s possible rights under the District of Columbia compensation provisions. The Industrial Commission of Virginia did not, and could not, determine what rights if any Pettus had under those provisions. Thus in the proceeding in the District of Columbia the Secretary was free to determine the issue and his consideration was not foreclosed by the doctrine of res judicata.
Although the doctrine of collateral estop-pel could apply in the successive award situation, it should not operate as a bar on the facts of this case. The issue is whether the statutory standards governing eligibility for relief in Virginia and the District of Columbia are identical so that it can be fairly said that the question of a claimant’s eligibility is an issue of fact which has been finally determined against him.
Until its amendment in 1975, Code of Va. § 65.1-88 (1950) provided:
The refusal of the employee to accept such [surgical] service when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Industrial Commission, the circumstances justified the refusal.
Section 7(d) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 907(d) (Supp. V, 1975), provides:
If at any time the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the Secretary may, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension, unless the circumstances justified the refusal.
It is clear that the two statutes vary materially. First, the Virginia statute provides only one standard by which a claimant’s refusal to submit to surgery is evaluated: whether circumstances justify the refusal. The District of Columbia statute, on the other hand, has a two-part test: whether the refusal is unreasonable and, if so, whether it is justified by the circumstances. Second, the burden of proof is different in the two statutory schemes. Under the Virginia statute, the entire burden is on the claimant to show that his refusal to have surgery is justified. Under the District of Columbia statute, the initial burden is on the Employee to show that refusal to have surgery is unreasonable; only after the Employee carries his burden must the claimant offer proof that the refusal was nevertheless justified. Finally, the operation of the Virginia statute is mandatory: unless the claimant shows that refusal to undergo surgery was justified, it “. shall bar the employee from further compensation. . . . ” (Emphasis added). On the other hand, the operation of the District of Columbia statute is permissive: “. . . the Secretary may *635suspend the payment of further compensation. . . .” (Emphasis added).
In view of the variance in the burden of proof and the allocation of that burden in the Virginia and District of Columbia proceedings, the finding of the Virginia Industrial Commission — that Pettus did not prove that his refusal was justified — cannot estop litigation in the District of Columbia on the issue of whether that refusal was unreasonable and unjustified. See Young & Co. v. Shea, 397 F.2d 185 (5th Cir.), rehearing denied, 404 F.2d 1059 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969).
Since I believe that the District of Columbia was not precluded by full faith and credit, res judicata or collateral estoppel from entertaining Pettus’ claim, I would affirm the decision of the United States Department of Labor, Benefits Review Board.
ORDER
Upon a request for a poll of the court on the suggestions that this case be reheard en banc, less than a majority of the judges in regular active service having voted in favor of rehearing en banc,
It is accordingly ADJUDGED and ORDERED that rehearing en banc shall be, and the same hereby is, denied.
The panel has considered the petitions for rehearing and is of opinion they are without merit.
It is accordingly ADJUDGED and ORDERED that the petitions for rehearing shall be, and they hereby are, denied.
It is further ORDERED that the addendum to the opinion attached to this order shall be, and the same hereby is, filed and made a part of the opinion in this case.
ALBERT V. BRYAN, Senior Circuit Judge, concurs.
K. K. HALL, Circuit Judge, dissents. He would affirm the award.
SUPPLEMENTAL OPINION
PER CURIAM:
Petitions filed by George Pettus and the Director, Office of Workers’ Compensation, for rehearing of the decision herein of September 26, 1978, have been denied, but we deem it advisable to correct a mistaken impression of the petitioners. They charge that this opinion is in conflict with ours of September 21, 1978, in No. 77-1886, Newport News Shipbuilding and Dry Dock Company v. Director, OWCP.
The conflict is said to be manifest in the denial to Pettus of the right to seek compensation under the District of Columbia Workmen’s Compensation Act (Longshoreman’s and Harbor Workers’ Compensation Act) after the Virginia Commission had dismissed his claim for refusal to comply with its order allowing compensation, but that in Newport News Shipbuilding the right to proceed under the District of Columbia law was granted employee, Jenkins, after his claim had been rejected by the Virginia Commission.
Actually, there is no inconsistency between the two adjudications. Pettus had originally been awarded compensation by the Virginia Commission with no doubt that his injury was work-related. Thus, there was no necessity for him to seek the remedy afforded by the D. C. Act in order to be compensated.
On the other hand, Jenkins had no claim whatsoever under the Virginia law, because there was no relationship proved between his injury and work. This was a finding of a jurisdictional fact, negating the jurisdiction of the Virginia Commission. It was not a finding on the merits of the claim. At all events, no relief was obtainable by him under the State law.
However, the absence initially of proof of this essential factor was not a bar under the Federal law, because it gave him a presumption of work-relatedness to start with, an assistance unavailable to him in the Virginia proceeding. Furthermore, since his burden of proof was thus lighter under the Federal statute, the result of the litigation *636before the Virginia Commission had no collateral effect and Jenkins could embrace the Federal forum without first proffering proof of the work relationship. In so doing he was making out a different case, one not entertainable in Virginia.
Thus the judgments of Pettus and Jenkins rested on separate bases. Jenkins could not recover under the State law but Pettus could. Obviously, these conclusions were not mutually contradictory.
. The majority cites 59 Va.L.R. 1632 (1973) as support for its holding; this article collects and discusses only cases standing for the accepted proposition that an award under the Virginia statute operates as a bar to any other rights at common law against the employer.
. For purposes of this discussion I will assume that there was identity of parties in the Virginia and District of Columbia proceedings.