Billy E. Tibbs, Jr. v. Island Creek Coal Company ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
BILLY E. TIBBS, JR.
MEMORANDUM OPINION*
v. Record No. 2152-00-3 PER CURIAM
FEBRUARY 27, 2001
ISLAND CREEK COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Billy E. Tibbs, Jr., pro se, on briefs).
(Michael F. Blair; Lisa Frisina Clement; Penn
Stuart, on brief), for appellee.
Billy E. Tibbs, Jr. (claimant) contends that the Workers'
Compensation Commission erred in denying his application
alleging a change in condition on the ground that it was barred
by the doctrine of res judicata. 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.
In denying claimant's application, the commission found as
follows:
[C]laimant had long-standing pre-existing
back problems associated with degenerative
disc disease. There is no dispute that in
September of 1997, he suffered strains of
the left knee, left leg and lower back.
However, as found by Deputy Commissioner
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Bruner in his Opinion of April 10, 1998, the
medical evidence preponderated in
establishing that the compensable strains
had resolved and that the claimant had
returned to his pre-injury condition.
When the claimant submitted his change
in condition application in May of 1998, he
continued to complain of disability causally
related to problems with his severe
degenerative disc disease. After reviewing
the voluminous medical record, however, the
Deputy Commissioner found that the claimant
had recovered from his minor strains and
sprains, and found "that symptoms caused by
the degenerative disease claimant has were
not caused, precipitated or aggravated by
the September 26, 1997 accident." We
affirmed the Deputy Commissioner's Opinion,
none of the parties sought an appeal before
the Court of Appeals, and the decision
became final.
The medical evidence upon which
claimant primarily relies in this
application is Dr. [Paul C.] Peterson's
April 8, 1999 letter, in which he reports
his belief that the claimant's degenerative
disc disease was causally related to the
compensable accident. Dr. Peterson has not
identified any new condition, or suggested
that the claimant has, subsequent to his
previous change in condition application,
developed any different form of degenerative
disc disease or symptomology. The claimant
has introduced no evidence that would
suggest that the causal relationship between
the injury by accident and his current
condition could not have been determined
prior to the present application. Dr.
Peterson has merely offered an opinion as to
the cause of the claimant's symptomatic
degenerative disc disease that is contrary
to those that formed the basis of the
Commission's decision on the claimant's
earlier change in condition application.
Because the Deputy Commissioner's
earlier opinion finding that the claimant's
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ongoing complaints associated with
degenerative disc disease were not "caused,
precipitated or aggravated" by the
compensable accident is final, the claimant
cannot now re-litigate the issue merely
because he has acquired a new, contrary
opinion of causation.
In Fodi's and Aetna Cas. & Sur. Co. v. Rutherford, 26 Va.
App. 446, 495 S.E.2d 503 (1998), we recognized the following:
Code § 65.2-101 defines a "change in
condition" as "a change in the physical
condition of the employee as well as a
change in the conditions under which
compensation was awarded, suspended, or
terminated which would affect the right to,
amount of, or duration of compensation."
When an employee applies for reinstatement
of disability benefits based upon a change
in condition, the commission must determine:
(1) whether a "change in condition" has
occurred as defined in Code § 65.2-101, that
affects the employee's capacity to work, and
(2) if so, whether the change is due to a
condition causally connected with the
original compensable injury. Where an
application for a change in condition is
filed for the sole purpose of presenting
additional evidence in support of a claim
that has previously been denied, res
judicata will bar reconsideration of the
claim.
Id. at 448, 495 S.E.2d at 504 (citations omitted).
Here, credible evidence supports the commission's finding
that claimant's application was barred by the doctrine of res
judicata. Claimant's award was terminated on April 10, 1998
based upon the deputy commissioner's finding that claimant no
longer suffered from a disability that was causally related to
his compensable September 26, 1997 injury by accident. The
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deputy commissioner found that the evidence failed to prove that
claimant's degenerative disc disease was a result of or
aggravated by the September 26, 1997 incident. Furthermore, on
April 30, 1999, the commission affirmed Deputy Commissioner
Burchett's decision denying claimant's application alleging a
change in condition on the ground that he failed to prove that
his degenerative disc disease was caused by or aggravated by the
September 26, 1997 incident. Thus, prior to claimant's January
25, 1999 application, it had twice been determined that
claimant's ongoing disability was the result of degenerative
disc disease that was not caused by or aggravated by his
compensable accident. Accordingly, the commission correctly
concluded that claimant's January 25, 1999 change in condition
application, alleging that his degenerative disc disease, the
accompanying treatment, and resulting disability were caused by
or aggravated by his September 26, 1997 work-related accident,
was barred by the doctrine of res judicata. Where an employee
seeks a change in condition with both incapacity and causation
in issue after the rejection of a previous application, the new
application is barred by res judicata, when the only new
evidence is a change in the physician's opinion on the issue of
causation. See Amp, Inc. v. Ruebush, 10 Va. App. 270, 275, 391
S.E.2d 879, 882 (1990).
Based upon this record, the commission did not err in
applying the doctrine of res judicata to bar claimant's January
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25, 1999 application alleging a change in condition. Because
our ruling on the res judicata issue disposes of this appeal, we
need not address the causation issue raised by claimant.
Affirmed.
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