                    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

                               - 2 -
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.



                              - 3 -
     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


                               - 4 -
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."

                               - 5 -
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.




                              - 6 -
                                  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

                                 - 7 -
            (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

                                 - 8 -
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

                               - 9 -
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.




                              - 10 -
