                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


EASTMAN KODAK COMPANY

v.           Record No. 1406-95-2        MEMORANDUM OPINION * BY
                                        JUDGE SAM W. COLEMAN III
RICHARD R. STREMOVIHTG                       MARCH 26, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Richard L. Butler (Anderson & Quinn, on brief),
             for appellant.

             No brief or argument for appellee.



     Eastman Kodak Company appeals the Workers' Compensation

Commission's decision awarding Richard R. Stremovihtg (claimant)

temporary total disability benefits from May 5, 1992 through

May 5, 1994 and all medical expenses.    Eastman contends that the

commission erred by (1) holding that claimant's claim was not

barred by the two-year statute of limitations under Code

§ 65.2-708(A), (2) that claimant suffered a change in condition

beginning May 6, 1992, (3) that Eastman was barred from raising

the defense of voluntary retirement, and (4) that claimant had

been referred by his attending physician for certain chiropractic

treatment.    For the following reasons, we affirm in part and

reverse in part.

     On June 28, 1991, claimant sustained injuries to his back,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hip, and thigh in an accident that occurred in the course of his

employment with Eastman.   He received full wages from June 28,

1991 through November 30, 1991.   On December 1, 1991, he

voluntarily left his job with Eastman in return for enhanced

retirement benefits.

     On November 22, 1991, claimant filed a claim with the

commission for temporary total benefits for his injuries

resulting from the accident.    A hearing was held before Deputy

Commissioner Tabb on May 5, 1992.   On March 16, 1992, Dr.

Christopher Young, claimant's treating physician, had returned

the claimant to regular work.   At the time of the hearing,

claimant was also receiving chiropractic care from Dr. Michael D.

Pollock.
     Based upon a May 5, 1992 hearing, Deputy Commissioner Tabb

awarded claimant temporary total disability benefits from July 2,

1991 through March 16, 1992.    The deputy commissioner found that

Dr. Young had not referred claimant to Dr. Pollock for

chiropractic treatment, but only had acknowledged that if

claimant independently sought such treatment it would not

conflict with his treatment of the claimant.   In addition, the

deputy commissioner stated that he did not "find any indication

that the claimant took early retirement on December 1, 1991 or

that he failed to cooperate with vocational rehabilitation

efforts."   The deputy commissioner found that claimant had been

released to return to work on March 16, 1992, and had not proved




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that he was thereafter disabled or as of the May 5, 1992 hearing.

     On June 18, 1992, claimant, alleging a change in condition,

filed a second claim for benefits.     In support of this claim, he

submitted a report by Dr. Pollock dated May 4, 1992.    On July 29,

1992, an assistant claims examiner informed claimant by letter

that the commission would take no further action on the second

claim because Dr. Pollock's report had been addressed by Deputy

Commissioner Tabb in the May 1992 decision.    No further action

was taken on that claim until August 1994 when claimant submitted

additional medical documents in support of the June 1992 change

in condition application.   The commission scheduled a hearing for

November 21, 1994.   As a result of that hearing, the commission

found a change in condition as of May 5, 1992, and awarded

temporary disability benefits through May 5, 1994, and medical

benefits.   The employer appealed.
                     I. Statute of Limitations

     Code § 65.2-708(A) provides that "no [review by the

commission of an application for a change in condition] shall be

made after twenty-four months from the last day for which

compensation was paid, pursuant to an award under this title."

This Court has interpreted Code § 65.2-708(A) to mean that "the

change in condition must occur within twenty-four months from the

date compensation was last due or paid."     Armstrong Furniture v.

Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987).     Eastman

contends that the letter from the assistant claims examiner in



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July 1992 informing claimant that no further action would be

taken on his claim constituted a dismissal of the claim, and that

as a result, claimant did not file his claim within two years of

March 16, 1992.

     Workers' Compensation Commission Rule 1.3 provides that an

employee's claim "may be dismissed upon motion of the employer

after notice by the Commission to the parties" if the employee

does not file supporting evidence within ninety days after the

claim is filed.   Although claimant did not file the supporting

evidence within ninety days, the record does not reveal that

Eastman filed a motion to dismiss the claim, and even had it done

so, the commission had discretion whether to grant the motion.

Furthermore, the commission acted in accordance with the Code by

adjudicating the claim despite the fact that claimant did not

produce the additional medical evidence until August 1994.

Claimant was not required to produce the evidence prior to the

expiration of the statute of limitations so long as the claim

alleged a change in condition existing at the time of the filing.
 See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508,

510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App.

675, 678, 401 S.E.2d 213, 215 (1991).   Accordingly, the

commission did not err in holding that the claim was timely

filed.
                      II. Change in Condition

     Eastman next challenges the commission's finding that the




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claimant "was disabled beginning May 6, 1992."   The commission

stated that:
          [t]his finding is based upon Dr. Pollock's
          reports of May 4, 1992, and August 12, 1993.
           In his report of May 4, 1992, he clearly
          indicated that the claimant should not work
          pending further improvement. Dr. Pollock's
          report of August 12, 1993, reflects
          continuing treatment, improvement, and an
          apparent discharge from chiropractic care.
          However, there was no release to return to
          any form of employment.


In order for the commission to have found that claimant proved a

change in his condition and that he became disabled on May 6,

1992, the commission necessarily relied upon, as it stated, the

May 4, 1992 and August 12, 1993 reports of Dr. Pollock.   However,

the August 12, 1993 letter does not in any way support a finding

that beginning in May of 1992, the claimant was disabled from his

pre-injury employment to which he had been previously released.

Thus, the only other evidence in the record that the commission

could or did consider to prove that claimant was disabled on May

6, 1992, was the May 4, 1992 letter.   In order to infer from the

letter of May 4, 1992 that the claimant was disabled on May 6,

1992, the commission necessarily had to find that claimant was

disabled on May 4, 1992.   However, Deputy Commissioner Tabb ruled

in his May 1992 opinion that claimant was not disabled on May 4,

1992.   That fact has been finally decided.   Thus, although

claimant could have offered evidence to prove a change in

condition and disability on May 6, 1992, the August 12, 1993

report did not do so and the claimant could not prove that he


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became disabled on May 6, 1992, by attempting to show that he was

disabled on May 4, by using the identical evidence that had been

found insufficient.

     The doctrine of collateral estoppel applies "in a subsequent

action based upon a collateral and different cause of action."

Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974)

(emphasis in original).   "Under the principle of collateral

estoppel, 'the parties to the first action and their privies are

precluded from litigating [in a subsequent action] any issue of

fact actually litigated and essential to a valid and final

personal judgment in the first action.'"   Slagle v. Slagle, 11

Va. App. 341, 344, 398 S.E.2d 346, 348 (1990) (quoting Norfolk &

W. Ry. v. Bailey Lumber Co., 221 Va. 638, 640, 272 S.E.2d 217,

218 (1980)).   "[A]n appropriate test for determining the identity

of issues involved in former and subsequent actions is 'whether

the same evidence will support both actions.'"   Allegheny

Airlines, Inc. v. Merillat, 14 Va. App. 341, 343, 416 S.E.2d 467,

469 (1992) (quoting Graham v. Virginia Elec. & Power Co., 230 Va.
273, 277, 337 S.E.2d 260, 263 (1985) (quoting Pickeral v. Federal

Land Bank, 177 Va. 743, 751, 15 S.E.2d 82, 85 (1941))).

     Here, Deputy Commissioner Tabb had considered Dr. Pollock's

report of May 4, 1992, in which Dr. Pollock stated that in his

opinion claimant was unable to work.   Deputy Commissioner Tabb

relied "more heavily on the opinion of Dr. Young," awarded

temporary total disability benefits through March 16, 1992, when




                               - 6 -
claimant had been released to return to work, and denied the

claim for benefits thereafter.    Deputy Commissioner Tabb

necessarily found that claimant was not disabled on May 4, 1992.

 Therefore, in order for the claimant to prove a change in

condition after the 1992 decision, the commission was precluded

from finding that the claimant was disabled on May 4, 1992,

unless additional evidence not considered at the 1992 hearing

proved that claimant became disabled on or after that date.

Consequently, the letter of May 4, 1992 does not support the

commission's finding that the claimant was disabled on May 6,

1992.    Because the commission's finding that the claimant was

disabled beginning May 6, 1992 is not supported by credible

evidence, we reverse the award of temporary total disability

benefits.
                       III. Voluntary Retirement

        At the May 1992 hearing, Eastman argued that claimant was

barred from recovering disability benefits because he voluntarily

retired on December 1, 1991, but Deputy Commissioner Tabb held

that there was no "indication that the claimant took early

retirement on December 1, 1991."    As a result of this finding,

the deputy commissioner awarded claimant temporary total

disability benefits through March 16, 1992.    Therefore, the

defense of voluntary retirement was "actually litigated and

essential to" the May 1992 award.    Accordingly, the commission

did not err in holding that Eastman was collaterally estopped




                                 - 7 -
from raising this defense at the November 1994 hearing.     Slagle,

11 Va. App. at 344, 398 S.E.2d at 348 (quoting Bailey Lumber Co.,

221 Va. at 640, 272 S.E.2d at 218).   No new evidence was

presented to prove that the claimant had retired.




                              - 8 -
                             IV. Referral

        In the May 1992 opinion, Deputy Commissioner Tabb stated

that "we do not find that Dr. Young's letter of May 1, 1992 is a

referral of the claimant for chiropractic treatment but only an

acknowledgement that the claimant may so independently seek such

treatment."    Nonetheless, the commission held that Eastman was

responsible for chiropractic treatment rendered by Dr. Pollock

beginning May 6, 1992.    The commission based this holding on a

letter dated December 2, 1993, in which Dr. Young states that

"[p]rior to [the claimant's] chiropractic treatment [he] spoke

with Dr. Michael Pollock concerning [the claimant's] care and

authorized [the claimant's] care with Dr. Pollock."
        Deputy Commissioner Tabb's finding that Dr. Young did not

refer the claimant for chiropractic treatment prior to May 5,

1992 does not preclude the claimant from proving as part of his

subsequent claim alleging a change in condition that Dr. Young

thereafter referred claimant to Dr. Pollock subsequent to May 5,

1992.     See Mace v. Merchants Delivery Moving & Storage, 221 Va.

401, 405, 270 S.E.2d 717, 719 (1980) (holding that "a change in

an attending physician's opinion concerning an employee's ability

to resume work" is sufficient to prove a change in condition).

Obviously, Dr. Young's letter of December 2, 1993 was not before

Deputy Commissioner Tabb, nor "available and known" at the time

of the May 5, 1992 hearing.     Cf. Mize v. Rocky Mount Ready Mix,
Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991) ("Failing




                                 - 9 -
to obtain the medical records which were available and known does

not constitute due diligence.").   Dr. Young's letter proves that

he subsequently referred the claimant to Dr. Pollock, and is

sufficient to require that we affirm the commission's holding

that Eastman is responsible for all medical treatment rendered by

Dr. Pollock beginning May 6, 1992.

     In summary, we hold that the commission erred by awarding

claimant temporary total disability benefits, but did not err in

awarding the medical benefits authorized by the attending

physician.   Therefore, we reverse the commission's decision in

part and remand with instructions to enter an order consistent

with this opinion.
                                              Affirmed in part,
                                              reversed in part,
                                                  and remanded.




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