COURT OF APPEALS OF VIRGINIA

ROMINGER LEGAL

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

MICHAEL RAY MANES

MEMORANDUM OPINION*

v. Record No. 0019-99-3 PER CURIAM

JUNE 22, 1999

TCB CONSTRUCTION, INC. AND

ERIE INSURANCE EXCHANGE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Michael Ray Manes, pro se, on briefs).

(Benjamin J. Trichilo; Trichilo, Bancroft,

McGavin, Horvath & Judkins, P.C., on brief),

for appellees.

Michael Ray Manes (claimant) contends that the Workers'

Compensation Commission (commission) (1) erred in denying his June

7, 1994 and December 4, 1995 claims alleging a change-in-condition

on the ground that they were barred by the doctrine of res

judicata and/or collateral estoppel; (2) erred in denying those

claims, and alleged amendments to those claims, on the ground that

they were not timely filed; (3) erred in finding that his November

21, 1996 claim requesting an award of permanent partial disability

benefits ("PPD") was barred by the doctrine of res judicata and

was not timely filed; (4) failed to respond to his request that

the commission designate a new treating physician; (5) erred in

finding that TCB Construction, Inc. and its insurer (hereinafter

referred to as "employer") were not responsible for the cost of

his July 22, 1996 right ulnar nerve transposition and right carpal

tunnel release surgery; and (6) failed to address his request for

rehabilitation training. 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. See

Rule 5A:27.

I. and II.

On August 3, 1993, claimant filed a claim alleging that he

sustained an injury by accident on July 6, 1993, resulting in a

"broken right elbow." Claimant requested an award of temporary

total disability ("TTD") benefits beginning July 6, 1993.

In a June 7, 1994 letter (incorrectly dated June 7, 1993),

filed with the commission on June 10, 1994, claimant amended his

August 3, 1993 claim. In that letter, claimant asserted that he

also suffered injuries to his "cervical spine, thoracic spine,

left and right shoulders, fracture of the radial head of the right

arm, and injuries to the right and left arms," as a result of the

July 6, 1993 accident. Again, claimant requested TTD benefits

beginning July 6, 1993. Claimant also requested that the

commission hold employer responsible for the cost of medical

treatment provided by Dr. Norman J. Cowen.

On December 21, 1994, the commission held a hearing on the

August 3, 1993 claim and the June 10, 1994 amendment to that

claim. At that hearing, the parties stipulated that claimant

sustained a fractured right radial head as a result of the July

6, 1993 injury by accident and that employer made certain

voluntary payments to claimant for disability through January

20, 1994. The only injuries asserted at the hearing by

claimant's counsel related to claimant's July 6, 1993 accident

included a fractured radial head and carpal tunnel syndrome.

Claimant testified that he believed he sustained injuries to his

right wrist, elbow, right shoulder, upper back, neck, both

shoulders, and left arm as a result of the July 6, 1993

accident.

In his March 7, 1995 opinion, Deputy Commissioner Tabb

considered all of the injuries asserted by claimant. Tabb ruled

that claimant's right carpal tunnel syndrome was causally

related to his July 6, 1993 accident; that claimant failed to

market his residual capacity and was not entitled to benefits

after January 20, 1994; and that Dr. Cowen was not an authorized

treating physician. Both parties requested review of Tabb's

decision. However, neither party raised issues concerning the

compensability of injuries other than those to claimant's right

forearm and his carpal tunnel syndrome.

On July 19, 1995, the full commission affirmed Tabb's

decision, finding that claimant was not credible; that Dr. Cowen

was not an authorized treating physician; and that claimant was

partially disabled and had failed to market his residual

capacity. However, Tabb's finding of causal connection between

claimant's carpal tunnel syndrome and his accident was vacated

and remanded for a hearing on that issue and any new claims that

had been filed and were ripe for hearing.

The second hearing, on October 18, 1995, included the

carpal tunnel issue as well as claims filed by claimant on March

13, 1995, April 12, 1995, June 28, 1995 and August 14, 1995. In

those claims, among other issues, claimant asserted he was

entitled to TTD benefits beginning March 31, 1995, payment for

Dr. John Johnson's medical treatment, and recognition of Dr.

Johnson as the authorized treating physician. At the hearing,

claimant again testified to problems he believed were related to

the July 6, 1993 injury by accident, including tingling in his

hands and down both sides of his arms, headaches, neck, arm and

back pain, fluid leaking from his ears, and numbness in his arms

after leaning on his elbows.

On November 15, 1995, Tabb issued an opinion in which he

"adopt[ed] the medical recitals as set forth in the Commission's

Opinion of July 19, 1995, and the medical facts as found in the

Opinion of March 7, 1995 . . . ." Tabb also cited various

medical records detailing claimant's numerous complaints. Based

upon the evidence, Tabb found as follows:

[C]laimant's July 6, 1993, fractured radial

head has healed, and . . . any continuing

problems he may have, are either the result

of unrelated matters or right carpal tunnel

syndrome which pre-existed his July 6, 1993,

accident. There has previously been a

stipulation that an accident occurred on

July 6, 1993, which necessitated treatment

for his fractured radial head for which we

assume all medical payments have been made.

There is no continuing need for medical

treatment and no continuing disability.

(Emphasis added.)

In his December 4, 1995 request for review of Tabb's

November 15, 1995 decision, claimant asserted that he suffered

from continuing neck, upper back, and shoulder pain and fluid

leaking from his ears. Claimant argued that Tabb erred in

ruling that those continuing medical problems were not causally

related to his July 6, 1993 injury by accident. Claimant

reiterated his position in several letters filed thereafter.

On March 12, 1996, the full commission affirmed Tabb's

November 15, 1995 decision that claimant's right carpal tunnel

syndrome was not causally related to his compensable July 6, 1993

injury by accident.

On September 24, 1996, this Court summarily affirmed the

commission's findings that claimant was not credible; that his

right carpal tunnel syndrome and continuing disability were not

causally related to his compensable July 6, 1993 injury by

accident; and that he failed to market his residual capacity.

On July 16, 1997, the commission held a hearing on claims

filed by claimant on June 7, 1994, December 4, 1995, and November

21, 1996. The December 4, 1995 claim asserted that claimant

sustained a broken right elbow and a non-displaced radial head

fracture of the right elbow as a result of the July 6, 1993

accident. Claimant requested TTD benefits beginning January 20,

1994 and continuing.

On April 22, 1996, claimant amended that claim to allege a

change-in-condition including "a large rotator cuff tear of the

left shoulder, bi-lateral ulnar nerve compression of both elbows

and possible thoracic outlet syndrome and possible nerve damage to

the neck and/or spine." Claimant sought TTD benefits beginning

January 20, 1994 and continuing, payment of medical bills, and

reimbursement for mileage expenses. He also requested vocational

rehabilitation and recognition of Drs. Richard Whitehill and

Gregory Degnan as authorized treating physicians. By letter filed

on June 5, 1996, claimant again amended the December 4, 1995

change-in-condition claim to include injuries to his cervical

spine, thoracic spine, right and left arms, right and left elbows,

right and left shoulders, and neck.

The November 21, 1996 claim requested an award of PPD

benefits for an impairment rating to his right upper extremity.

In a December 16, 1997 opinion, Deputy Commissioner Herring

found that claimant's June 7, 1994, December 4, 1995 and

accompanying amendments, and November 21, 1996 claims were barred

by res judicata and/or collateral estoppel. In support of that

ruling, Herring cited Tabb's November 15, 1995 opinion, which was

rendered after a hearing that encompassed all of the injuries

raised by claimant in his June 7, 1994 and December 4, 1995

claims, and which was affirmed by the full commission and this

Court.

On December 4, 1998, the full commission affirmed Herring's

December 16, 1997 opinion and dismissed all pending claims. In

that opinion, the commission held that Tabb's November 15, 1995

opinion, affirmed by the commission and this Court

extinguish[ed] allegation of other injuries

contained in the June 1994 amended claim.

The additional injuries are precluded from

being relitigated because either they were

resolved by the stipulation [at the December

21, 1994 hearing] and the Deputy's finding

which makes res judicata applicable, or they

could have been litigated at that time but

were not which makes collateral estoppel

apply.

The December 4, 1995, claim was for a

broken right elbow and a non-displaced

radial head fracture. The right elbow

fracture had already been determined to be

compensable pursuant to the stipulation and

earlier decision. The Deputy, in the

November 15, 1995, decision, specifically

found that the claimant's disability was

unrelated to the compensable accident.

Therefore, a claim for benefits from January

20, 1994, and continuing is barred by res

judicata.

* * * * * * *

[C]laimant's statement that he was unaware

of the injuries until after the hearings is

also contradicted by the discussion at the

last hearing where, when asked why the other

injuries were not raised, he alleged it was

because of incompetent counsel. He further

stated that he begged counsel to raise the

other injuries at the earlier hearings. If

this is the case, collateral estoppel would

be applicable because it was an issue that

could have been raised at that time but was

not. As noted earlier, the claimant did

testify to injury to other body parts,

medical records noted other complaints and

the earlier review delineated the various

injures [sic] and possible diagnosis.

Therefore res judicata would prevent

relitigation.

The commission's finding that the June 7, 1994 and December

4, 1995 claims were barred by res judicata and/or collateral

estoppel is fully supported by the record. Res judicata applies

"where there is a valid, personal judgment obtained by a

defendant on the merits of an action. The judgment bars

relitigation of the same cause of action, or any part thereof

which could have been litigated between the same parties and

their privies." K & L Trucking Co. v. Thurber, 1 Va. App. 213,

219, 337 S.E.2d 299, 302 (1985).

Before the July 16, 1997 hearing, claimant had already

litigated or could have already litigated the issue of his

entitlement to an award of TTD benefits beginning January 20,

1994 with respect to all of the various injuries alleged by him

in his June 7, 1994 and December 4, 1995 claims. Tabb's

November 15, 1995 decision, which encompassed or could have

encompassed these claims, and which was affirmed by the

commission and this Court, adjudicated the claims made by

claimant in his June 7, 1994 and December 4, 1995 claims.

Therefore, res judicata and/or collateral estoppel prevented

claimant from subsequently relitigating the issue of his

entitlement to TTD benefits beginning January 20, 1994 and

continuing due to the injuries alleged by him at the July 16,

1997 hearing.

III.

The commission correctly applied the doctrine of res

judicata to find that Tabb's November 15, 1995 decision,

affirmed on review by the commission and appeal to this Court,

barred the commission from awarding claimant PPD benefits as

requested in his November 21, 1996 application. Tabb's November

15, 1995 decision constituted a final and binding determination

that claimant's fractured radial head had healed; that any

continuing problems that he may have were either due to his

pre-existing right carpal tunnel syndrome or matters unrelated

to his July 6, 1993 injury by accident; and that there was no

continuing disability or need for further medical treatment.

Accordingly, the commission did not err in finding that

claimant's November 21, 1996 claim for PPD benefits was barred

by the doctrine of res judicata.

IV. - VI.

Because our rulings affirming the commission's findings

with respect to the issues of res judicata, collateral estoppel,

and the statute of limitations dispose of this appeal, we need

not address the remaining issues raised by claimant.

For these reasons, we affirm the commission's decision.

Affirmed.

*Pursuant to Code 17.1-413, recodifying Code 17-116.010,

this opinion is not designated for publication.

Claimant's brief sets forth thirteen issues. Some of the

issues designated by claimant are duplicative or relate to

another issue. Accordingly, we have combined some of the issues

presented by claimant and will address them together for

purposes of this appeal.

The record also supports the commission's alternative

finding that the December 4, 1995, April 18, 1996, and May 8,

1996 claims, if they assert new injuries or injuries diagnosed

after December 1994 and the previous hearings, would be barred

by the statute of limitations. None of these claims were filed

before July 6, 1995, within two years of the date of the

accident. In addition, as the commission noted "even if the

1996 claims were truly amendments, they would still be time

barred because the December 1995 claim was not timely filed."

Employer moved this Court to dismiss claimant's appeal due

to his failure to comply with Rules 5A:20(c) and 5A:25(d). We

deny that motion.

	ROMINGER LEGAL
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