Boukhira v. University
| Decision Date | 08 December 2015 |
| Docket Number | Record No. 0204-15-4 |
| Court | Virginia Court of Appeals |
| Parties | MOHAMMED BOUKHIRA v. GEORGE MASON UNIVERSITY/COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Petty, Alston and Senior Judge Felton
Argued by teleconference
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (McCandlish Lillard, on briefs), for appellant.
Scott John Fitzgerald, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney General; Ronald N. Regnery, Senior Assistant Attorney General, on brief), for appellee.
Mohammed Boukhira, (claimant), appeals the decision of the Commission finding that his March 12, 2014 claim for permanent partial disability (PPD) benefits is barred by the doctrine of res judicata. Claimant's appeal details eight separate assignments of error which can be summarized as follows: (1) the Commission's July 12, 2013 opinion was not a final adjudication on the merits of claimant's right to PPD benefits so as to implicate the doctrine of res judicata, (2) the Commission's July 12, 2013 opinion, which stated that claimant could re-file his claim within the statutory period, as well as its January 13, 2014 letter, which dismissed claimant's second application without prejudice, implied and caused claimant to detrimentally rely on those orders in his belief that the Commission retained jurisdiction over claimant's PPD claim, thus, entitling him to refile his claim for PPD benefits, and (3) theCommission erred in finding that claimant failed to provide sufficient evidence to prosecute his PPD claim based upon a change in condition.
Claimant, a computer technician, was injured on February 20, 2007. According to claimant, he was leaving the Commerce Building at George Mason University (employer) to enter his vehicle when he stepped on a steel utility cover located in a landscaped area. When claimant stepped on the utility cover, due to it not being properly secured, his left leg fell into the hole causing his back to strike the side of the manhole. As a result, claimant alleged that he suffered right lower leg and back pain.
On July 30, 2009, the Commission entered an order indicating that the matter in controversy had been resolved by an agreed award order, which provided that the parties agreed that claimant sustained a compensable lower-back injury at an average weekly wage of $994.88 per week. As a result, employer agreed to pay claimant $663.25 per week in temporary partial disability benefits.
Between August 17, 2010 and August 16, 2011, claimant and employer entered into several supplemental agreements to pay benefits as well as termination of wage loss awards.
On February 24, 2012, claimant was examined by Dr. Salter, an orthopedic surgeon.1 Dr. Salter's evaluation provided that in his opinion, claimant suffered a L5 spondylolysis unilateral on the left as indicated by a lumbar spine CT dated August 20, 2008. Dr. Salter stated that claimant had "reached maximum medical improvement" and using the Fifth Edition of the AMA Guide to Evaluation of Permanent Impairment, rated an "11% impairment of the left lowerextremity as a result of the injury sustained on February 20, 2007, within a reasonable degree of medical certainty and probability."
On March 2, 2012, claimant filed an application for hearing requesting entry of an order awarding PPD benefits with the Commission based on the 11% disability rating provided by Dr. Salter. Claimant's hearing was held on September 17, 2012. Claimant testified to the events on the day of his injury, his treatment with a Dr. Schuler, and stated that his left leg would frequently "give out."2 Claimant also filed Dr. Salter's medical evaluation with the Commission in support of his claim.
The deputy commissioner issued an opinion on September 27, 2012, finding in favor of claimant and ordering employer to pay claimant PPD benefits based upon an 11% loss of use of the left leg at the weekly rate of $663.26 commencing on February 24, 2012, and continuing for a period of 19.25 weeks. The deputy commissioner further ordered that medical benefits continue for as long as necessary and awarded claimant costs and fees.
On October 16, 2012, employer filed its request for review by the full Commission. Employer argued that the deputy commissioner erred because his award was based on pain only and that there was no evidence presented that the "pain interfered with [claimant's] functional use of the member or his ability to work." In response, claimant argued that the evidence supported the deputy commissioner's ruling because claimant proved that he sustained permanent loss of use of the left lower extremity due to his February 20, 2007 lower back injury. Further, that claimant's evidence showed that his injuries restricted his ability to work; specifically his ability to walk, stand, or lift heavy objects.
On July 12, 2013, the Commission issued its opinion reversing the decision of the deputy commissioner. The Commission found that there was no evidence on the record to show that claimant suffered a PPD to his left leg. The Commission opined that Dr. Salter's physical examination did not reveal any loss of use and that there was "no reason [for the Commission] to credit Dr. Salter's opinion solely because it [was] the only opinion of PPD." The Commission also found that claimant's testimony was insufficient to substantiate a claim of ongoing loss of use of his left leg. The Commission "removed [the matter] from the Review Docket" and stated in its order, "Claimant has the right to appeal this decision to the Court of Appeals of Virginia by filing a Notice of Appeal with the Commission and a copy of the Notice of Appeal with the Court of Appeals of Virginia within 30 days of the date of the opinion."
Claimant did not appeal the Commission's decision. Rather, on August 7, 2013, claimant filed a letter of application of hearing requesting an award of PPD benefits for his "left lower extremity." The letter stated On November 25, 2013, employer filed a motion to dismiss claimant's August 7, 2013 application.
Employer argued that the motion should be dismissed because claimant failed to file any supporting medical records within 90 days of the initial filing date. Commission Rule 1.3.3 Claimant responded arguing that all medical evidence had been filed and was already in the Commission file at the time of the August 7, 2013 application. Specifically, claimant referred to Dr. Salter's report. Employer argued that the Commission found Dr. Salter's February 24, 2012 rating to be "defective as a matter of law." Therefore, no medical records were present to support claimant's pending PPD claim. Further, employer argued that even if claimant were torely on Dr. Salter's records, his claim was barred by res judicata. Lastly, employer argued that without evidence, the claim should be dismissed. In his surrebutal, claimant argued that the Commission did not find Dr. Salter's findings to be a nullity, but rather, found that further explanation was needed to support a rating based upon claimant's "ongoing S1 distribution pain." Claimant also argued that while the Commission reversed the deputy commissioner's ruling, it did not dismiss claimant's claim for PPD benefits.
On January 13, 2014, the deputy commissioner sent a letter to counsel. The letter provided in relevant part:
On January 14, 2014, claimant appealed the deputy commissioner's January 13, 2014 ruling to the full Commission. Claimant argued that the deputy commissioner erred in granting the motion to dismiss because it precluded claimant from being awarded PPD benefits. Claimant also contended that the deputy commissioner erred by failing to follow Commission case law holding that a claim for PPD benefits is timely filed when the claimant presents "some evidence of a permanent functional disability within the statutory period." Further, that the deputy commissioner erred by finding that Dr. Salter's report provided insufficient evidence of a permanent functional disability. Lastly, claimant argued that the Commission's finding that the rating of Dr. Salter was "defective as a matter of law" was not intended to deprive the claimant of his right to forever claim PPD due to his work-related injury.
On February 12, 2014, the Commission issued an opinion in response to claimant's January 14, 2014 appeal. The...
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