                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia


UNITED AIRLINES, INC.
                                                  OPINION BY
v.   Record No. 0313-00-4          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               NOVEMBER 7, 2000
MARK F. KOZEL


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Steven T. Billy (Pierce & Howard, P.C.,
            on brief), for appellant.

            Nikolas E. Parthemos (Parthemos & Bryant,
            P.C., on brief), for appellee.


     United Airlines, Inc. ("employer") contends the Workers'

Compensation Commission ("commission") erred in awarding

temporary total and medical benefits to Mark F. Kozel

("claimant").    On appeal, employer argues that claimant is

barred from receiving additional benefits on his claim because

he entered into a full settlement agreement of this claim in

Illinois.    We hold that this case is controlled by Thomas v.

Washington Gas Light Co., 448 U.S. 261 (1980), and affirm the

commission's decision.

                            I.   BACKGROUND

     "On appeal, we view the evidence in the light most

favorable to the claimant, who prevailed before the commission."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted).      "'Decisions of the

commission as to questions of fact, if supported by credible

evidence, are conclusive and binding on this Court.'"       Id.

(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991)).    "'The fact that there is

contrary evidence in the record is of no consequence.'"        Id.

(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,

407 S.E.2d 32, 35 (1991)).

        Claimant was employed as a pilot for employer on August 5,

1992.    While en route from Phoenix, Arizona to Washington, D.C.,

his plane was struck by lightning.       Claimant felt an electrical

charge in his right leg.    He had resulting paresthesia and

weakness in that leg.

        The parties stipulated that claimant filed a claim for

benefits in Virginia, received benefits under that claim and

that an award order was issued.    Claimant also filed a claim for

benefits in Illinois, the location of employer's base of

operations.

        The parties further agree that:    (1) claimant suffered a

change in condition and that change in condition caused him to

be totally disabled from employment beginning January 31, 1999;

(2) the change in condition and the treatment therefor is

causally related to the August 5, 1992 accident; (3) the parties

entered into a settlement contract in Illinois; (4) claimant was

represented by counsel in Illinois through negotiation,

                                 - 2 -
acceptance and approval of the settlement; (5) the settlement

contained language that settled all claims arising from this

accident and specifically included the existing, concurrent

Virginia claim; (6) claimant accepted and received benefits

under the Illinois settlement and the Virginia claim; and (7)

neither party submitted the Illinois settlement documents to the

Virginia Workers' Compensation Commission for approval as

required by Code § 65.2-701.

     Employer argued before the deputy commissioner that

Virginia was required to give full faith and credit to the

Illinois settlement that excluded any further Virginia payments.

In the alternative, it argued that the commission should have

approved the Illinois settlement or allowed employer credit for

the benefits received by claimant in Illinois.   The deputy

commissioner retroactively approved the Illinois settlement and

denied claimant's request for temporary total benefits from

January 31, 1999 and continuing, never reaching the full faith

and credit issue.   Claimant appealed the deputy commissioner's

decision to the full commission.

     In addressing the issue of full faith and credit, the

commission declined to allow the findings of another state's

administrative law agency interpreting and applying its own

workers' compensation law to control Virginia's claim procedure.

Using the United States Supreme Court's decision in Thomas, 448

U.S. 261, the commission reasoned that "one State has no

                               - 3 -
legitimate interest within the context of the federal system in

preventing another State from granting a supplemental award of

compensation benefits, when the second State would have had the

power to apply its workers' compensation law in the first

instance."   Illinois approved the 1998 settlement in the context

of Illinois law, not Virginia's workers' compensation law.    The

commission stated that Illinois had no power to include the

language specifically settling the claimant's Virginia claim

and, thus, the commission was not required to give full faith

and credit to the Illinois settlement.

     Employer also argued that the commission should have

approved the 1998 Illinois settlement.   The commission refused

to retroactively approve the Illinois settlement pursuant to

Code § 65.2-701(A) which requires all parties to be in agreement

before any settlement can be approved.   The commission awarded

Kozel "temporary total disability benefits beginning January 31,

1999, and continuing until a change in condition warrants

reconsideration thereof."   However, the commission granted

employer's request for a dollar for dollar credit of the amount

paid pursuant to the settlement.

                    II.   Full Faith and Credit

     Employer contends the Illinois settlement, barring further

consideration of claimant's application for change in condition

benefits in Virginia, should be afforded full faith and credit



                               - 4 -
by the commission. 1   In support, employer cites Osborne v.

Osborne, 215 Va. 205, 207 S.E.2d 875 (1974).     "'The

constitutional mandate, as implemented by Congress, requires

every state to give a foreign judgment at least the res judicata

effect which the judgment would be accorded in the state which

entered it.'"   Id. at 208, 207 S.E.2d at 879 (quoting Durfee v.

Duke, 375 U.S. 106, 109 (1963)).     However, before accepting

another state's judgment, each state must determine if the

underlying state used a factual determination in arriving at the

judgment.   "[T]here emerges the general rule that a judgment is

entitled to full faith and credit . . . when the second court's

inquiry discloses that those questions have been fully and

fairly litigated and finally decided in the court which rendered

the original judgment."     Durfee, 375 U.S. at 111.     In the

instant case, there is no evidence the Illinois Industrial

Commission (IIC) made any factual finding prior to its approval

of the settlement.     The only finding of any kind was the generic

language used at the bottom of the settlement order that the

lump sum settlement was in the best interests of the parties and

should be approved.    This finding concerns only the application

of the Illinois Workers' Compensation Act and is insufficient to


     1
       Employer also argues that the principle of equitable
estoppel bars the claimant from withdrawing his consent to the
settlement. Employer argues this issue was preserved by inference
in the deputy commissioner's opinion. After review of the record,
we find the employer's equitable estoppel argument was not
preserved and is barred by Rule 5A:18.

                                 - 5 -
require the Virginia commission to give full faith and credit to

the Illinois award.   See Thomas, 448 U.S. at 281-82.

     Employer next contends that the rationale of Thomas does

not control the instant case.    In Thomas, claimant received

benefits under an award in Virginia and sought further benefits

in the District of Columbia.    The benefits were not duplicative,

and no agreement had been reached regarding benefits available

to claimant in either state.    448 U.S. at 264–66. 2   In the

instant case, claimant entered into an agreement in Illinois

with employer.   That agreement was approved by the IIC settling



     2
       We note that while neither side in the instant case argued
the rule set forth in Industrial Comm'n of Wis. v. McCartin, 330
U.S. 430 (1944), it applies to precisely the situation here.
McCartin, one of a trilogy of Supreme Court cases on workers'
compensation and full faith and credit, held that successive
awards in different states are permitted; however, double recovery
is not. This is the accepted application of McCartin in most
states. See also Lowery v. Industrial Commission of Arizona, 597
P.2d 1011 (Ariz. 1979) (when employee is otherwise entitled to
benefits in Arizona, he will not be barred by a prior
"nonexclusive" award in another state, but his recovery will be
offset by the amount of the prior award); Martin v. L. & A.
Contracting Co., 162 So.2d 870 (Miss. 1964) (more than one statute
can apply to a single compensable injury, so long as each state
has a relevant interest in the case; successive awards can be made
in different states, deducting the amount of the first award from
the second); Gulf Interstate Geophysical/Gulf Interstate Piping v.
Industrial Commission, 555 N.E.2d 989 (Ill. App. Ct. 1990) (a
final award of workers' compensation benefits in Indiana did not
preclude claimant from seeking supplemental award for same injury
under Illinois workers' compensation law); and Landry v. Carlson
Mooring Service, 643 F.2d 1080 (5th Cir. 1981) (full faith and
credit did not require that judicially approved settlement of
employee's Texas workers' compensation claim bar his subsequent
assertion of claim under Longshoremen's and Harbor Workers'
Compensation Act).


                                - 6 -
his rights under his Illinois claim.   The agreement also

included language that attempted to settle his future Virginia

rights.   Employer argues that the claimant gave Illinois the

right and authority to terminate any future Virginia claims,

including a change of condition request.   We disagree.

     The United States Supreme Court in Thomas stated:      "To be

sure, . . . the factfindings of state administrative tribunals

are entitled to the same res judicata effect in the second State

as findings by a court.   But the critical differences between a

court of general jurisdiction and an administrative agency with

limited statutory authority forecloses the conclusion that

constitutional rules applicable to court judgments are

necessarily applicable to workmen's compensation awards."     448

U.S. at 281-82.

     In its decision, the commission found:

           As shown by the document itself, this
           process involved the submission of a signed
           agreement reflecting the terms of the
           agreement, but there were no specific
           findings of fact or conclusions of law.
           There is no evidence regarding the basis
           upon which the Illinois Commission reviewed
           this information and reached its
           determination. Ultimately, it determined
           that the settlement--under Illinois law--was
           legally in the claimant's best interest.
           The Illinois Commission did not purport to,
           and could not have adjudicated the
           appropriateness of the proposed settlement
           under the laws of Virginia. Nonetheless,
           the Illinois Commission approved language in
           the settlement agreement that purported to
           foreclose the claimant's right to seek
           further relief before the Virginia

                               - 7 -
                Commission. This is a determination that
                the Illinois Commission had no power to
                make. Accordingly, pursuant to the Supreme
                Court's decision in Thomas, we are not bound
                by the Illinois Order under principles of
                comity.

We agree with the commission's reasoning.

         III.    Retroactive Approval of the Illinois Settlement

     Employer next contends the commission should have approved

the 1998 Illinois settlement.          The commission refused to

retroactively approve the Illinois settlement pursuant to Code

§ 65.2-701(A), 3 which requires all parties to be in agreement

before any settlement can be approved.           Claimant did not consent

to the commission's approval of the Illinois settlement, see

Damewood v. Lanford Bros. Co., 29 Va. App. 43, 509 S.E.2d 530

(1999), and in fact seeks continuing benefits.          Without

agreement between the parties, the commission declined to

approve the settlement.        See id. at 47, 509 S.E.2d at 532.     We

affirm this finding.

                                 IV.    Credit

     The purpose of the Workers' Compensation Act is to

compensate a claimant for lost wages and medical benefits.          It

is not the purpose of the Act to allow a claimant to be unjustly



     3
       Code § 65.2-701(A) states "If after injury or death, the
employer and the injured employee or his dependents reach an
agreement in regard to compensation or in compromise of a claim
for compensation under this title, a memorandum of the agreement
in the form prescribed by the Commission shall be filed with the
Commission for approval."

                                       - 8 -
enriched.   The commission granted employer's affirmative request

for a dollar for dollar credit, in the full amount of the

settlement paid to claimant in Illinois.   The employer is

entitled to credit for payments made in another state for the

same accident and the same injuries.   See Harris v. Otis

Elevator, 73 VWC 223, 225 (1994); Cook v. Minneapolis Bridge

Construction Co., 43 N.W.2d 792 (Minn. 1950); Spietz v.

Industrial Comm'n, 28 N.W.2d 354 (Wis. 1947).

     For the foregoing reasons and finding no error, we affirm

the commission's finding.

                                                          Affirmed.




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