                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


WILLIAM GARY BOYER
                                              MEMORANDUM OPINION* BY
v.   Record No. 0906-00-3                      JUDGE ROBERT P. FRANK
                                                 DECEMBER 5, 2000
SUNDOWN EXPRESS, INC. AND
 LEGION INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            A. Thomas Lane, Jr., for appellant.

            Thomas S. Berkley (Carr and Porter, L.L.C.,
            on brief), for appellees.


     William Gary Boyer (claimant) appeals the decision of the

Workers' Compensation Commission (commission) finding his claim

alleging injury by accident arising out of and in the course of

his employment on March 19, 1998 is barred by the doctrine of

res judicata.    Finding no error, we affirm the commission's

decision.

                            I.   BACKGROUND

     Claimant originally filed a claim for benefits alleging he

suffered an accident on April 19, 1998, which arose out of and

in the course of his employment with Sundown Express, Inc.

(employer).    Claimant alleged he injured his back while moving


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
pallets of frozen turkeys.   Claimant filed the medical records

of Dr. Chappell and Dr. Riggleman in support of his claim.

     On March 18, 1999, prior to the hearing on the claim,

claimant requested the claim be dismissed without prejudice.     On

March 19, 1999, Deputy Commissioner Culbreth entered an order

dismissing the claim without prejudice.

     On March 25, 1999, claimant filed a second claim for

benefits again alleging he suffered a compensable injury on

April 19, 1998.   A hearing was held before Deputy Commissioner

Culbreth on June 15, 1999.   Prior to the conclusion of the

hearing, claimant withdrew his claim.   The commission issued an

opinion on June 23, 1999, which noted the withdrawal of the

initial claim on March 18, 1999, and dismissed the second claim

with prejudice.   Claimant did not appeal the dismissal of the

second claim.

     On June 23, 1999, claimant filed the present claim for

benefits, alleging he was injured in a work-related accident on

March 19, 1998, a different date from the first two claims.

Claimant alleged he injured his back unloading frozen turkeys.

Claimant attached the same medical records from Dr. Chappell and

Dr. Riggleman to the present claim as were attached to the

initial and second claims.

     Employer filed a plea of res judicata.   The deputy

commissioner dismissed claimant's present claim with prejudice.

Claimant requested review by the full commission.   In its

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opinion, the commission found that claimant alleged the same

injury and relied upon the same medical evidence as in the first

two claims.   The commission rejected claimant's argument that

the different date of accident distinguished the present claim

from the prior litigation.    The commission affirmed the deputy

commissioner's decision.

                             II.   ANALYSIS

     Claimant contends his present claim for benefits is not

barred by the doctrine of res judicata.

     Claimant concedes the present claim concerns the same

injury, the same employer, and the same medical records, yet he

contends that the same set of operative facts do not exist

because the new date of accident asserted in the present case

specifically distinguishes it from the first two claims.

     "It is well-settled that conclusions of the Commission upon

questions of law, or mixed questions of law and fact, are not

binding on [appeal]."   Brown v. Fox, 189 Va. 509, 517, 54 S.E.2d

109, 113 (1949).   The determination of res judicata is a

question of law.   See Rusty's Welding Service, Inc. v. Gibson,

29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc).

"The doctrine of res judicata is applicable to decisions of

deputy commissioners and the full commission.   Generally, '[r]es

judicata precludes the re-litigation of a claim or issue once a

final determination on the merits has been reached.'"    Id. at

128, 510 S.E.2d at 259 (citations omitted).

                                   - 3 -
     In this case, when the second claim was dismissed with

prejudice, employer received a final disposition of the claim,

which was adverse to claimant.

     "The bar of res judicata precludes relitigation of the same

cause of action, or any part thereof, which could have been

litigated between the same parties . . . ."   Smith v. Ware, 244

Va. 374, 376, 421 S.E.2d 444, 445 (1992) (citations omitted).

"[A]s a general proposition a judgment of dismissal which

expressly provides that it is 'with prejudice' operates as res

judicata and is as conclusive of the rights of the parties as if

the suit had been prosecuted to a final disposition . . . ."

Virginia Concrete Co. v. Bd. of Supervisors of Fairfax County,

197 Va. 821, 825, 91 S.E.2d 415, 418 (1956) (citation omitted).

               Under the Workers' Compensation Act
          (the "Act"), Code §§ 65.2-100 to -1310, "a
          claimant must prove by a preponderance of
          the evidence either an 'injury by accident'
          or an 'occupational disease.'" A New Leaf,
          Inc. v. Webb, 257 Va. 190, 195, 511 S.E.2d
          102, 104 (1999) (citations omitted). The
          term "injury by accident" is defined as an
          "identifiable incident or sudden
          precipitating event [that results] in an
          obvious sudden mechanical or structural
          change in the body." Morris v. Morris, 238
          Va. 578, 589, 385 S.E.2d 858, 865 (1989)
          (citation omitted); see Chesterfield Co. v.
          Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180,
          181 (1990).

Ogden Aviation Services v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d

756, 758 (2000).




                                 - 4 -
     Claimant, to receive compensation for his injury, had to

prove he suffered an "injury by accident."   To do so, he had to

establish that there was an "identifiable incident" or "sudden

precipitating event" whereby he suffered a mechanical or

structural change in his body.    The "identifiable incident" in

the first two claims and the present claim was the lifting of

the pallets of frozen turkeys.    Claimant does not contend the

injury in the present claim is different from the injury alleged

in the first two claims, and the medical evidence submitted with

all three claims was identical.    In fact, claimant concedes that

the claims are the same except for the date of the accident. 1

     When the commission dismissed the second claim with

prejudice, it dismissed claimant's claim for the work-related

back injury he sustained by unloading the pallets of frozen

turkeys.   The present claim is for the same work-related back

injury claimant sustained by unloading the pallets of frozen

turkeys.   The issues before the commission in all three claims

were whether claimant suffered an injury by accident that arose

out of and during the course of his employment.   The date of the




     1
       Claimant argues in his brief that he planned to submit
additional medical evidence. However, the medical evidence
submitted in support of the current claim is all that was before
the commission, and it is identical to the medical evidence
submitted in the first two claims.


                                 - 5 -
injury was irrelevant to the issues before the commission in all

three claims. 2

     We, hold, therefore, that the current claim is barred by

res judicata because the date of the accident was irrelevant to

the determination of the issues in all three claims and, in all

other respects, the claims were identical.

                                                        Affirmed.




     2
       On the facts before us, the date is irrelevant to the
claim. However, in other cases, the date of injury may have
significance.


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