Lowes of Christiansburg, VA v Jennifer D. Clem

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
LOWES OF CHRISTIANSBURG, VIRGINIA AND
LOWES HOME CENTERS, INC./SPECIALTY
RISK SERVICES, INC.
OPINION BY
v. 	Record No. 1188-01-3 	JUDGE JAMES W. BENTON, JR.
JANUARY 15, 2002
JENNIFER D. CLEM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert M. Himmel (Monica L. Taylor; Gentry
Locke Rakes & Moore, on brief), for
appellants.
Robert M. McAdam (Jones & Glenn, P.L.C., on
brief), for appellee.
The sole issue raised by this appeal is whether the
Workers' Compensation Commission erred in ruling that Jennifer
D. Clem's change-in-condition claim for temporary total
disability benefits beginning November 25, 1999 is barred by the
doctrine of res judicata. 	We hold that the claim is not barred
and affirm the commission's award.
I.
The evidence proved that in 1997 Clem suffered a
compensable injury by accident to her ankle, leg, and back that
arose out of and in the course of her employment with Lowes of
Christiansburg. 	Her back injury was initially described as "a
herniated disc, left L5-S1." 	The commission approved various

memoranda of agreement, which provided compensation to Clem for
temporary total disability and temporary partial disability. 	On
September 22, 1997, Dr. Lawrence I. Kleiner performed surgery on
Clem for a left L5-S1 herniated disc. 	Clem returned to work on
April 1, 1998 and received additional payments for temporary
partial disability.
On July 30, 1999, Clem filed a change-in-condition claim,
alleging temporary total disability from that date. 	Although
the recording of the evidentiary hearing was destroyed, the
parties stipulated that the medical records in the commission's
file would constitute the record. 	The medical records
established that a radiologist reviewed a July 7, 1999 MRI of
Clem's lumbar spine and reported a "small rightward disc
extrusion is suspected at L5-S1." 	Dr. Murray E. Joiner examined
Clem, reviewed the MRI, and opined that Clem had a "new,
right-sided, herniated disc at L5-S1 [that] is unrelated to her
[injury by accident]." 	He referred Clem to Dr. Kleiner, the
neurosurgeon who had previously treated Clem. 	Dr. Kleiner also
opined that Clem had a right-sided disc herniation. 	In a
detailed letter, Dr. Kleiner explained that he could not "say,
with medical certainty, that the herniation to the right is
actually resultant from" her compensable injury by accident.
After reviewing Clem's medical records, Dr. Jeffrey McConnell
reported, consistent with the other doctors' opinions, that "it
is impossible to state that the new right L5-S1 disc herniation
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discovered in July 1999 is in anyway causally related to the
[compensable injury by] accident."
The only contrary medical evidence before the commission
was a document, which had been prepared by Clem's attorney and
signed by Dr. Edgar Weaver, a neurosurgeon. 	By marking a check
on a space designated, "True," Dr. Weaver indicated that
treatments Clem received for "her L5-S1, L4-L5 spine on the
right and the left are due to the [injury by accident]."
On review from the deputy commissioner's denial of relief
to Clem, the commission affirmed the denial. 	In pertinent part,
the commission made the following findings and decision.
Although Dr. Weaver agreed with the
statement provided by [Clem's] counsel that
all care rendered by him, including the care
and treatment of the L5-S1 and L4-L5 spine
on the right and the left, was due to
injuries sustained on May 7, 1997, he did
not indicate how he reached his conclusion,
and he did not discuss the basis for his
opinion.
Unlike Dr. Weaver, Drs. Kleiner, Joiner,
and McConnell have explained the basis for
their conclusions. 	The medical evidence
supports the opinions of these physicians.
Therefore, we find their opinions to be more
persuasive than Dr. Weaver's opinion. 	We
note that although Dr. Kleiner agreed to
defer to Dr. Weaver's opinion regarding
causation, his acquiescence does not make
his opinion less probative. 	[Clem's]
current disability is based on her
right-sided disc herniation, which the
Deputy Commissioner found to be unrelated to
the compensable injury. 	We agree with this
finding.
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On February 14, 2000, Clem filed another
change-in-condition claim, alleging temporary total disability
from November 24, 1999. 	Attached to the claim was a December
13, 1999 report from Dr. Weaver, which indicated Clem has severe
degenerative changes at L5-S1 that require surgery and that are
related to her compensable injury by accident. 	At the
evidentiary hearing, Clem relied upon additional reports from
Dr. Weaver, including a March 8, 2000 report in which Dr. Weaver
opined that Clem's right side disc herniation "has little to do
with her symptomatology." 	He also opined as follows:
[W]hether she had a positive MRI on the
right side at L5-S1 or not is immaterial as
to whether or not she needs surgery. 	Her
surgery is for severe degenerative changes
at L5-S1 with mechanical/axial pain. 	She
does not have symptoms of a unilateral disc
herniation on the right or left side. 	Her
symptoms are mechanical/axial and,
clinically, she would benefit from a fusion.
Therefore, the question which remains again
is, are the severe degenerative changes at
L5-S1 related to the accident? 	Since the
original injury to the L5-S1 disc was
job-related, then certainly the subsequent
degenerative changes also must be related;
and, it is these degenerative changes that
are causing the majority of her symptoms
which need surgery. 	Again, the abnormality
seen on the MRI on the right side is not the
primary cause of her symptoms.
Dr. Joiner affirmed a statement prepared by Lowes' attorney
that indicated, "but for the new right-sided disc herniation and
its resulting disability, . . . Clem [would] be capable of
returning to work in either her pre-injury position or in a
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light duty position." 	At Lowes' request, Dr. Michael Dennis, a
neurosurgeon, reviewed Clem's medical reports and opined that
"based on the fact that [Clem] is a smoker the most probable
cause of the degeneration at the L5-S1 level with secondary
herniation on the right would be the patient's age and smoking
history." 	By contrast, Dr. Weaver further reported that the
degenerative change was the cause of disability, that the
"degenerative change for which the surgery is being done is
related to the original injury," and that "[t]his is in
distinction to a recurrent herniated disc on the other side
which possibly could be unrelated to the original event."
The deputy commissioner ruled that Clem's current claim was
not barred by the doctrine of res judicata and found persuasive
Dr. Weaver's reports that Clem's severe degenerative changes at
the L5-S1 level were causing Clem's disability and resulted from
the injury by accident. 	Rejecting Dr. Dennis' opinion, the
deputy commissioner found that "he never examined [Clem] and
reached a number of erroneous conclusions based solely upon his
review of medical records." 	The deputy commissioner also
rejected Dr. Joiner's contrary view.
On review, the commission ruled that Lowes "waived" its
challenge to the deputy commissioner's ruling that Clem "has
severe degenerative changes at L5-S1 level that were traced to
the original [injury by] accident and that her right-sided
defect was incidental rather than a significant finding."
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Noting that the sole issue on review was whether Clem's
change-in-condition claim was barred by the doctrine of res
judicata, the commission ruled as follows:
We find that the issue that was before the
Commission [on the first claim] is not the
same as that which was before the Deputy
Commissioner [on the current claim]. 	The
issue decided by the Deputy Commissioner on
[the first claim], and affirmed by the Full
Commission . . . , was whether her
right-sided disc herniation was related to
the compensable injury. 	The current issue
is whether [Clem's] left-sided severe
degenerative changes at L5-S1 are causally
related to the accident and whether the
October 31, 2000 surgery for this condition
was related to the degenerative changes.
We further find that the matter of the
request for surgery for a right-sided disc
herniation is not of so similar a nature as
a request for surgery for severe
degenerative changes set in motion by the
left-sided herniated disc as to require that
it be litigated at the time of the previous
hearing. 	We note in support of this
Dr. Weaver's March 8, 2000, report
indicating that [Clem's] right-sided disc
herniation was essentially an irrelevant
finding and not material as to whether she
needed surgery for the severe degenerative
changes at L5-S1 which were causing the
majority of her symptoms. 	In addition at
the time of the previous hearing, there was
no recommendation for [Clem] to undergo
surgery for her left-sided degenerative
changes. 	To hold otherwise would be
contrary to the change of condition process
which allows a party to seek benefits as new
medical circumstances or other events arise.
Thus, the commission affirmed the deputy commissioner's award.
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II.
Lowes contends the commission "failed . . . to correctly
interpret and apply the res judicata bar" principle. 	We
disagree.
We have held that in a proper case "principles of res
judicata apply to Commission decisions." 	K&L Trucking Co. v.
Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). 	Where
applicable, the principle "bars relitigation of the same cause
of action, or any part thereof which could have been litigated
between the same parties and their privies." 	Id. 	"One who
asserts the defense of res judicata has the burden of proving by
a preponderance of the evidence that an issue was previously
raised and decided by [the commission] in a prior cause of
action." 	Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d
503, 505 (1998).
A cause of action is instituted by a change-in-condition
claim. 	Whitten v. Mead Paperboard, 4 Va. App. 182, 186, 355
S.E.2d 349, 350 (1987).
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
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(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. 	However, res judicata does not bar a
claim for resumption of benefits when a
"change in condition," as contemplated by
the Code, has occurred which has not been
previously considered by the commission.
Fodi's, 26 Va. App. at 448-49, 495 S.E.2d at 504 (citations
omitted).
The current change-in-condition claim was based on the
existence of a severe degenerative change at the L5-S1, which
the commission found to be the result of Clem's compensable
injury by accident. 	The commission's ruling that the evidence
proved a causal connection between the degenerative changes and
the original injury by accident is unchallenged. 	The only issue
to be resolved under Lowes' defense of res judicata is whether
the current change-in-condition claim, which relies upon a
degenerative change at L5-S1 that is related to the original
compensable injury by accident, "has . . . been previously
considered by the commission." 	Id. at 449, 495 S.E.2d at 504.
In ruling on the current change-in-condition claim, the
commission found that the issue decided under the first
change-in-condition claim "was whether [Clem's] right-sided disc
herniation was related to the compensable injury." 	We have held
"that the commission is entitled to interpret its own orders in
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determining the import of its decisions . . . and to examine the
opinion of the deputy commissioner as a whole in order to
ascertain the result intended." 	Rusty's Welding Service, Inc.
v. Gibson, 29 Va. App. 119, 130, 510 S.E.2d 255, 260 (1999).
Furthermore, the record clearly establishes that the
commission's opinion on its review of the first
change-in-condition claim noted that the claim "is based on her
right-sided disc herniation, which the Deputy Commissioner found
to be unrelated to the compensable injury." 	On its review of
that change-in-condition claim, the commission ruled that Clem
failed to carry her burden of proving a causal connection
between the alleged bodily change (i.e., the right-sided disc
herniation) and the original compensable injury. 	That failure
was fatal to her burden to prove a cognizable change in
condition under Code § 65.2-101.
The evidence concerning the first change-in-condition claim
established that the right-sided herniated disc was a "new"
injury, which was unrelated to the original compensable injury
by accident. 	The evidence concerning the second
change-in-condition claim established that the degenerative
changes at L5-S1 resulted from the injury by accident. 	No
evidence from either proceeding established that the two claims,
i.e., the right-sided disc herniation and the degenerative
changes, were inextricably linked. 	"The barring of a cause of
action 'which could have been litigated' is not directed to an
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unrelated claim which might permissibly have been joined, but,
to a claim which, if tried separately, would constitute
claim-splitting." 	Bates v. Devers, 214 Va. 667, 670-71 n.4, 202
S.E.2d 917, 920 n.4 (1974). 	Because the commission's decision
on the first change-in-condition claim was a final determination
only on the merits of the issue whether the right-sided disc
herniation resulted from the original injury by accident, the
doctrine of res judicata does not bar the current
change-in-condition claim where the cause of action is based
upon whether degenerative changes in the L5-S1 were caused by
the original injury by accident. 	In short, the current claim
was not raised by the first change-in-condition claim and was
not addressed by the medical evidence then before the
commission.
Accordingly, we affirm the commission's award.
Affirmed.
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