Steve M. Hayes v 4 E Corporation, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Frank
STEVE M. HAYES
MEMORANDUM OPINION*
v. 	Record No. 1857-99-2 	PER CURIAM
JANUARY 18, 2000
4 E CORPORATION
AND
TRAVELERS CASUALTY & SURETY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Malcolm Parks; Christopher A. Jones;
Maloney, Huennekens, Parks, Gecker & Parsons,
on briefs), for appellant.
(S. Vernon Priddy III; Sands, Anderson,
Marks & Miller, on brief), for appellees.
Steve M. Hayes (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that the
"law of the case" doctrine did not apply to save his
November 5, 1996 claim seeking an award of permanent total
disability benefits from the bar of the applicable statute of
limitations.1 Upon reviewing the record and the briefs of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1 In his "Questions Presented" claimant also assigned error
to the commission's decision to amend its September 13, 1996
review opinion. 	However, claimant did not present any argument
with respect to that question. 	Accordingly, we will not address
it on appeal. 	See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992) (statements unsupported by argument do
not merit appellate consideration).

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parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. 	See
Rule 5A:27.
"The [law of the case] doctrine,
briefly stated, is this: 	Where there have
been two appeals in the same case, between
the same parties, and the facts are the
same, nothing decided on the first appeal
can be reexamined on a second appeal. 	Right
or wrong, it is binding on both the trial
court and the appellate court, and is not
subject to reexamination by either. 	For the
purpose of that case, though only for that
case, the decision on the first appeal is
law."
American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428
S.E.2d 511, 514 (1993) (emphasis added) (quoting Steinman v.
Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687
(1917)).
In holding that the law of the case doctrine did not apply
to save claimant's November 5, 1996 claim, which was filed more
than three years after June 4, 1993, the correct date for which
compensation was last paid to claimant, the commission concluded
as follows:
[T]he statement of the erroneous date for
last payment, December 13, 1993, by the full
Commission in the 1996 Review Opinion was
not, in itself, a conclusion of law or a
finding of fact to which the doctrine of the
law of the case applies. 	The decision did
not turn on when payments were last made and
the erroneous statement played no role in
the decision denying the 1994 claim. 	That
decision solely was based on the finding
that the claimant failed to prove he was
unable to use his right hand and leg to any

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substantial degree in gainful employment.
Thus, the date for which the claimant was
last paid benefits played no part in the
viability of the 1994 claim, its omission
would have taken nothing away, and its
inclusion added nothing to the opinion's
force. 	Thus, the law of the case doctrine
does not apply.
The commission also found that "[t]his conclusion applies
equally to the Court of Appeals' erroneous statement [in its
April 1, 1997 opinion] that the claimant's eligibility for
temporary compensation benefits expired in 1994." 	We agree.
The date upon which compensation was last paid to claimant
was not at issue when the 1994 claim was addressed by the
commission or by this Court. 	The commission did erroneously
refer to December 13, 1993 as being the last date for which
claimant received compensation benefits and this Court also
referenced benefits ending in 1994. 	However, these references
did not constitute legal or factual findings decided in the
first appeal between the parties which could not be reexamined
by the commission when it addressed employer's statute of
limitations defense with respect to the November 5, 1996 claim.
"[D]ictim of the reviewing court" or "statements casually
made as to other portions of the case not under consideration at
the time they are made" do not fall within the purview of the
law of the case doctrine. 	Morison v. Dominion Nat'l Bank, 172
Va. 293, 299-300, 1 S.E.2d 292, 294 (1939). 	Neither the statute
of limitations nor the correctness of the date upon which

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compensation was last paid to claimant was an issue "urged or
considered" when the commission and this Court addressed the
1994 claim. 	Id. at 300, 1 S.E.2d at 294. 	Thus, any reference
to the date upon which compensation was last paid to claimant by
the commission in its September 1996 review opinion or this
Court in its April 1997 opinion was not conclusive and binding
upon the parties. 	Accordingly, the commission did not err in
refusing to apply the law of the case doctrine, and in finding
that claimant's November 5, 1996 application was not timely
filed.2
For these reasons, we affirm the commission's decision.
Affirmed.
2 Because our decision disposes of this appeal, we need not
address employer's argument that the commission should have
applied a two-year limitations period.