                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


WILLIAM WAYNE WIMER, SR.

v.   Record No. 2087-95-2                      MEMORANDUM OPINION *
                                                   PER CURIAM
S. T. WOOTEN CONSTRUCTION COMPANY                 MARCH 5, 1996
AND
ST. PAUL MERCURY INSURANCE COMPANY


                                      FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
              (Brian J. Cuscé, on brief), for appellant.

              (Glenn S. Phelps; R. Ferrell Newman;
              Thompson, Smithers, Newman & Wade, on
              brief), for appellees.



     William W. Wimer, Sr., contends that the Workers'

Compensation Commission erred in (1) finding that res judicata

barred the commission from considering his application filed

December 30, 1991; (2) finding that the doctrine of imposition

did not apply; and (3) in failing to correct a procedural mistake

so that permanent partial disability benefits were payable after

the payment of temporary total disability benefits as required by

statute.   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.

Rule 5A:27.

     On January 17, 1990, Wimer sustained an injury by accident

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to his right knee arising out of and in the course of his

employment.   On December 30, 1991, Wimer filed an application

seeking an award of medical benefits and temporary total

disability benefits beginning June 1, 1990.      Employer accepted

Wimer's claim as compensable.   Noting that the parties had

resolved the matter in controversy by Memorandum of Agreement,

Deputy Commissioner Hayes removed the claim from the hearing

docket.   The parties then filed a Memorandum of Agreement with

the commission for payment of medical benefits and permanent

partial disability of 8.5 weeks.       On April 16, 1992, the

commission entered an award consistent with the Memorandum of

Agreement.    A month later, the parties submitted a signed Agreed

Statement of Fact to the commission.      The Agreed Statement of

Fact indicated that employer agreed to pay Wimer permanent

partial disability from February 12, 1992 through April 12, 1992,

and temporary total disability benefits from January 3, 1992

through April 29, 1992, and that Wimer was able to return to his

pre-injury work on April 30, 1992.      On May 27, 1992, the

commission entered an award memorializing this agreement.
     Two months after that award, Wimer filed a second

application, seeking temporary total disability benefits from

June 1, 1990 through January 3, 1992.      Treating Wimer's claim as

a change in condition application, the deputy commissioner held

that Rule 13 of the Rules of the Workers' Compensation Commission

barred the commission from awarding benefits to Wimer.      Wimer did




                                   2
not timely file a request for review from this decision, and

therefore, it became final.

     On January 5, 1993, Wimer requested a review of the

application in which he sought temporary total disability

benefits from June 1, 1990 through January 3, 1992.      The

commission informed Wimer that this claim had already been

litigated.   Because Wimer had not appealed that decision, he

could not relitigate this issue.
     Wimer filed a third claim for temporary total disability

benefits beginning June 1, 1990.       An assistant claims examiner

denied the application on the basis of res judicata.       The full

commission affirmed the claims examiner's decision as to the

period before January 3, 1992.   However, the full commission

allowed Wimer to present evidence related to disability for the

period after January 3, 1992.    Following a hearing, a deputy

commissioner found that Wimer failed to prove that his current

medical condition was causally related to his compensable injury

by accident.    Wimer filed a request for review from this

decision.    However, the commission denied review because Wimer's

request was not filed within the required twenty-day period.

     Wimer filed additional applications seeking temporary total

disability benefits beginning May 30, 1990 and June 1, 1990,

respectively.   A deputy commissioner denied these applications

because the issue had been previously adjudicated and Wimer did

not present any new evidence.    Wimer also filed an application



                                   3
seeking authority to proceed with physical therapy.   A deputy

commissioner denied Wimer's application for physical therapy due

to a lack of medical evidence.

     After a review of Wimer's file, the commission wrote to

Wimer, on October 4, 1994, stating that the commission would

refer his file back to the hearing docket on his original

application of December 30, 1991.    A deputy commissioner denied

Wimer's original application, finding that the issue of

disability from June 1, 1990 through January 3, 1992 had been

previously decided by various opinions of the commission, which

had become final.   On review, the full commission denied Wimer's

application on the basis of res judicata.    The commission found

as follows:
               The record reflects that [Wimer] was not
          denied the opportunity to present evidence on
          the issue of disability for the claimed
          period. This opportunity was afforded at the
          Hearing on November 2, 1992, before Deputy
          Commissioner Lee; at the on-the-record
          Hearing on August 17, 1994, before Deputy
          Commissioner Arrighi; and by the two chances
          to request Review of the decisions entered
          after consideration of evidence presented in
          the above Hearings. As to the first Opinion
          by Deputy Commissioner Lee, [Wimer] had the
          opportunity to request Review of her
          determination that the application was for a
          change in condition and that Rule 13 applied.
           No timely request for Review was noted.


     The commission also rejected Wimer's argument that res

judicata should not apply because the two awards entered for

permanent partial disability benefits and temporary total

disability benefits were for overlapping periods of time in


                                 4
violation of Code § 65.2-503(F).        The commission vacated the

previous awards and entered an amended award for record purposes.

The amended award provided for temporary total disability

benefits from January 3, 1992 through February 11, 1992;

permanent partial disability benefits from February 12, 1992

through April 13, 1992; and temporary total disability from

April 14, 1992 through April 29, 1992.       Finally, the commission

ruled that the doctrine of imposition did not apply in this case.
                             I. Res Judicata

     "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."        K & L Trucking

Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).

 Res judicata applies "where there is a valid, personal judgment

obtained by a defendant on the merits of an action.       The judgment

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.

     Wimer litigated the issue of his entitlement to an award of

temporary total disability benefits from June 1, 1990 through

January 3, 1992.    Wimer did not seek timely review of the deputy

commissioners' decisions, and therefore, they became final and

binding upon him.   Thus, credible evidence supports the

commission's finding that the issue of disability for the period

June 1, 1990 through January 3, 1992 could not be litigated again




                                    5
because the 1992 and 1994 decisions of the deputy commissioner

adjudicating those claims are final and were not appealed.          Res

judicata prevented Wimer from subsequently relitigating the issue

of his entitlement to temporary total disability benefits from

June 1, 1990 through January 3, 1992.

                             II.   Imposition

     "'Imposition' . . . empowers the commission in appropriate

cases to render decisions based on justice shown by the total

circumstances even though no fraud, mistake or concealment has

been shown."   Avon Products, Inc. v. Ross, 14 Va. 1, 7, 415

S.E.2d 225, 228 (1992).

     Substantial credible evidence supports the commission's

finding that Wimer's conduct in failing to note timely requests

for review of the deputy commissioners' 1992 and 1994 opinions

prevented the commission from considering the issue of disability

for the period June 1, 1990 through January 3, 1992.       Thus, the

commission did not err in ruling that the doctrine of imposition

did not preclude employer from relying upon res judicata.
                      III.     Disability Awards

     Wimer argues that res judicata did not apply because the

awards entered for temporary total disability benefits and

permanent partial disability benefits were for overlapping time

periods in violation of Code § 65.2-503(F).        The commission

corrected this error by amending the awards for record purposes.

The commission's correcting this mistake in entering the awards




                                     6
had no bearing upon whether Wimer's claim for disability from

June 1, 1990 through January 3, 1992 was barred by res judicata.

     For these reasons, we affirm the commission's decision.

                                        Affirmed.




                                7
