Rusty's Welding Service, Inc. v. Gibson

• Decision Date: 02 February 1999
• Docket Number: Record No. 2552-97-2.
• Citation: 510 S.E.2d 255,29 Va. App. 119
• Parties: RUSTY'S WELDING SERVICE, INC. and Harleysville Mutual Insurance Company v. Edward Wayne GIBSON.
• Court: Virginia Court of Appeals

510 S.E.2d 255

29 Va. App. 119

RUSTY'S WELDING SERVICE, INC. and Harleysville Mutual Insurance Company v. Edward Wayne GIBSON.

Record No. 2552-97-2.

Court of Appeals of Virginia, Richmond.

February 2, 1999.

S. Vernon Priddy, III (Sands, Anderson, Marks & Miller, on brief), Richmond, for appellants.

Laura Ann McDonald (Craig B. Davis; Christopher C. Booberg; Geoffrey R. McDonald & Associates, on briefs), Richmond, for appellee.

Present: FITZPATRICK, C.J., BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER and LEMONS, JJ., and OVERTON,¹ Senior Judge.

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

Rusty's Welding Service, Inc. (employer) appealed the commission's award of benefits to Edward Wayne Gibson (claimant). Employer contended the award was barred by principles of res judicata and that the award improperly required employer simultaneously to pay permanent partial disability (PPD) and temporary partial disability (TPD) benefits. A panel of this Court agreed and reversed the commission's decision. A hearing en banc was granted upon the petition of claimant. For the reasons that follow, we affirm the commission's decision.

I. THE REHEARING EN BANC

Employer first argues that claimant is barred from having his argument considered on rehearing en banc and asks this Court to dismiss his petition on the ground that claimant elected not to brief the issues on the initial appeal or present argument with respect to them. Claimant, proceeding pro se and as the prevailing party, simply stated in writing that he intended to rely on the previous filings and the decisions of the Workers' Compensation Commission in the case as his response to employer's appeal.

In support of its position, employer cites inter alia Coleman v. City of Richmond, in which we observed that "[o]rdinarily, a petition for rehearing will not be granted for the purpose of allowing counsel to submit additional authority that could have been represented in brief or oral argument." 6 Va.App. 296, 297 n. 1, 368 S.E.2d 298, 300 n. 1 (1988). Our decision in Coleman does not establish an absolute bar to claimant's petition for rehearing en banc.² Under the circumstances of this case, we find no reason which precludes our consideration of claimant's petition, the brief he filed in support of it and the argument he advanced before this Court. Without exception, the authorities claimant cited in his petition for rehearing are the same as those cited by the original panel's majority or dissenting opinion. Claimant's arguments are premised on the original panel's dissenting opinion.

Furthermore, the policy considerations which underlie our holding in Coleman are not implicated here. The relevant considerations include the avoidance of surprise to the opposing party, together with the concomitant and related need to foster and preserve an orderly and comprehensive review by the appellate court. A piecemeal consideration of authority serves neither purpose. In this case, however, neither of these policy considerations is jeopardized by granting claimant's petition to rehear this matter en banc. Because the issues raised in claimant's petition for rehearing en banc are the same as those considered by the panel and because the authorities upon which claimant relies in his petition are the same as those cited in either the majority or the dissenting panel opinion, dismissal of claimant's petition for rehearing for the reasons advanced by employer would elevate form over substance. We decline to follow such a course.

Finally, we find nothing in our rules or the rules governing proceedings in the Virginia Supreme Court that precludes claimant from filing a petition for rehearing en banc. See Rules 5A:26, 5A:33, 5A:34. Accordingly, we decline to adopt the position urged by employer.

II. RES JUDICATA

We view the relevant facts in the light most favorable to the claimant. R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). While carrying a bottle of acetylene on November 12, 1994, claimant sustained an accidental injury to his back. Employer accepted the injury as compensable and paid benefits. In applications filed July 16, 1996 and October 29, 1996, respectively, claimant sought an increase in TPD benefits, an order holding employer responsible for medical expenses for claimant's left knee, and an award of PPD benefits for a 40% impairment to claimant's left leg. All of claimant's requests were based upon the medical opinion of Dr. Gurpal S. Bhuller.

After an on-the-record review, the deputy commissioner issued an opinion on March 4, 1997, in which he wrote that Dr. Bhuller did not adequately explain how claimant's leg injury was caused by the compensable back injury. The deputy commissioner also noted that Dr. Bhuller did not explain that the 40% leg impairment was permanent or that claimant had reached maximum medical improvement. He wrote that, "on the evidence before us we cannot conclude that maximum medical improvement has been reached and accordingly deny permanent partial disability benefits at this time." The deputy commissioner ordered employer's insurance carrier to submit a report showing claimant's earnings and employer's payments to claimant, and concluded as follows:

Accordingly, the claimant's application is DENIED insofar as it has requested permanent partial disability benefits for the left leg and is DENIED to the extent requesting payment for medical treatment to the left knee. In all other respects, the claimant's application is continued on the Dispute Resolution Docket in accordance with the provisions of this opinion with the carrier to comply with the ORDERS stated above.

Neither party sought review of this opinion.

On April 9, 1997, claimant filed another application seeking PPD benefits for a 40% impairment in his left leg. In support of his application, claimant submitted an additional opinion of Dr. Bhuller explaining claimant's 40% impairment in his left leg and stating that claimant had reached maximum medical improvement. In an opinion filed May 29, 1997, the deputy commissioner awarded claimant PPD benefits for a 40% loss of use of his left leg. Employer was ordered to pay claimant a lump sum of $25,767.70 in accrued benefits.

On review, the commission acknowledged that Dr. Bhuller's opinion submitted in support of the May 29, 1997 award "was not based on a contemporaneous evaluation but represented a more complete discussion of the basis for the disability rating." The commission also acknowledged that the issue addressed in the May 29, 1997 opinion was identical to the issue addressed in the March 4, 1997 opinion. The commission held as follows:

[T]he issue was not determined with finality. The Deputy Commissioner specifically stated that, based "on the evidence before us," permanent partial disability benefits were denied "at this time" [emphasis added]. The Commission interprets the Opinion of March 4, 1997, to have left the issue of permanent partial disability unresolved for future determination.

The commission also held that it had discretion to order simultaneous payment of TPD and PPD benefits.

Employer argues that the award of PPD benefits on claimant's second application is barred by the doctrine of res judicata. Unlike questions of fact, which are binding on this Court if supported by evidence, we review questions of law de novo. Sinclair v. Shelter Constr. Corp., 23 Va.App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996)

.

The doctrine of res judicata is applicable to decisions of deputy commissioners and the full commission. K & L Trucking Co., Inc. v. Thurber, 1 Va.App. 213, 219, 337 S.E.2d 299, 302 (1985). Generally, "[r]es judicata precludes the re-litigation of a claim or issue once a final determination on the merits has been reached." Gottlieb v. Gottlieb, 19 Va.App. 77, 81, 448 S.E.2d 666, 669 (1994). Therefore, absent fraud or mistake, "the decisions of the Commission or its deputy commissioners from which no party seeks timely review are binding upon the Commission." Thurber, 1 Va.App. at 219, 337 S.E.2d at 302.

As the party seeking to assert res judicata, employer must prove that the deputy commissioner rendered a final judgment in its favor. Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va. 349, 353, 485 S.E.2d 387, 389 (1997). Generally, a judgment is final for the purposes of res judicata when "nothing more is necessary to settle the rights of the parties or the extent of those rights." 8B Michie's Jurisprudence, Former Adjudication or Res Judicata § 13 (1994). Furthermore, the employer must prove by a preponderance of the evidence that the issue previously raised was decided on the merits. Fodi's v. Rutherford, 26 Va.App. 446, 449, 495 S.E.2d 503, 505 (1998).

There is no question that, if the hearing remained open for further evidence, res judicata would not apply to bar appellant's claim. See Straessle, 253 Va. at 353,

485 S.E.2d at 389. This is precisely what the commission determined to be the posture of the case when a second hearing was held before the deputy commissioner. The commission "interpret[ed] the Opinion of March 4, 1997, to have left the issue of permanent partial disability unresolved for future determination" and held that the former adjudication was not final. The commission premised its holding that the former adjudication lacked finality on the deputy commissioner's statement in the body of the opinion that PPD benefits were denied "at this time."

Proceeding from that conclusion, the commission considered the additional medical evidence which claimant filed with his second application. The commission described the evidence as "a new medical report from his treating physician, Dr. Gurpal S. Bhuller." In the report, Dr. Bhuller fully explained claimant's 40% permanent partial impairment rating and opined for the first time that claimant had reached maximum medical improvement.

Employer contends, however, that the body of...