                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


TARIF SHABAZZ ALLAH

v.   Record No. 0929-95-2                         MEMORANDUM OPINION *
                                                      PER CURIAM
ROCKINGHAM CONSTRUCTION COMPANY                   SEPTEMBER 19, 1995
AND
ARGONAUT MIDWEST INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (Tarif Shabazz Allah, pro se, on brief).

             (Alan D. Sundburg; Friedlander, Misler, Friedlander,
             Sloan & Herz, on brief), for appellees.



     Tarif Shabazz Allah ("claimant") contends that the Workers'

Compensation Commission erred in finding (1) that he was not

entitled to an award of temporary total disability benefits from

April 15, 1993 through August 5, 1994; (2) that he unjustifiably

refused selective employment offered to him by Rockingham

Construction Company ("employer"); and (3) that employer was not

responsible for the cost of treatment rendered to claimant at the

Medical College of Virginia ("MCV").      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.
                             I. and II.

     In denying claimant's application, the commission adopted

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and affirmed the deputy commissioner's findings of fact and

conclusions of law.   In holding that claimant did not prove the

total disability he claimed, the deputy commissioner found as

follows:
           We agree with the defendants that the period
           claimed from April 15, 1993 through November
           9, 1993 was adjudicated in the December 7,
           1993 Opinion as at the November 9, 1993
           hearing [claimant] claimed continuing total
           incapacity from July 13, 1992. Accordingly,
           the finding of no disability from April 15,
           1993 up to the time of the hearing is res
           judicata. Moreover, pursuant to Rule 1.2 B,
           additional benefits may not be awarded more
           than ninety days before the filing of a
           change in condition application. As a
           result, benefits are not awardable earlier
           than mid-June 1994. However, thereafter the
           claimant was clearly capable of light duty
           and thus was under an obligation to make a
           reasonable effort to market his residual
           capacity in order to receive compensation for
           total work incapacity . . . . However, the
           claimant made no such effort and no effort to
           accept previously offered employment with the
           defendant employer. As a result, he has not
           proven the total disability claimed.

     At the November 9, 1993 hearing, claimant sought temporary

total disability benefits from January 13, 1992, the date of

accident, and continuing.   In the December 7, 1993 opinion, the

deputy commissioner ruled that claimant was released to light

duty employment as of November 12, 1992.    Because claimant had

refused employer's offer of selective employment and had not made

any effort to secure suitable employment on his own, the deputy

commissioner ruled that claimant was not entitled to temporary

total disability after November 12, 1992.   This ruling was not



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properly appealed to the full commission.    Therefore, it became

final as to these parties.
          Res judicata . . . precludes relitigation of
          a claim or issue once a final determination
          on the merits has been reached by a court of
          competent jurisdiction . . . . In short,
          once a matter or issue has been adjudicated,
          it may be relied upon as conclusive between
          the parties, or their privies, in any
          subsequent suit.


Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376

S.E.2d 787, 788 (1989).
        In his September 16, 1994 application, which is the subject

of this appeal, claimant sought temporary total disability

benefits for the same period of time previously litigated and

determined as to these parties in the December 7, 1993 opinion.

Accordingly, the commission did not err in finding that res

judicata barred claimant from receiving an award of temporary

total disability benefits from April 15, 1993 through November 9,

1993.

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

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"General principles of workman's compensation law provide that

'[i]n an application for review of any award on the ground of

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"     Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted).    Unless



                                   3
claimant's evidence sustained his burden of proving total

disability as a matter of law, the commission's findings are

binding and conclusive upon us.        Tomko v. Michael's Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     The commission's finding that temporary total disability

benefits were not awardable before mid-June 1994 is supported by

Rule 1.2 B of the Rules of the Virginia Workers' Compensation

Commission.   Moreover, its finding that claimant was not entitled

to an award of benefits from mid-June 1994 through August 5, 1994

is supported by Dr. Donald L. MacNay's opinions and claimant's

testimony.    On November 12, 1992, Dr. MacNay released claimant to

light to moderate duty work.   Dr. MacNay reiterated this opinion

in June 1994.   Claimant admitted that his physical condition had

not changed since the last hearing on November 9, 1993, that he

had not sought further work from employer, and that he had not

sought work on his own (aside from submitting one job application

on October 25, 1994).   Based upon this evidence, we cannot say as

a matter of law that claimant met his burden of proving a

compensable change in condition.
     Accordingly, the commission did not err in denying

claimant's application seeking an award of temporary total

disability benefits from April 15, 1993 through August 5, 1994.

                                III.

     It was undisputed that claimant chose Dr. MacNay as his

treating physician, and that he did not seek a referral from Dr.



                                   4
MacNay, employer, insurer, or the commission when he relocated to

Richmond and began seeking treatment at MCV.   In 1993, claimant

sought treatment at the MCV emergency department and from Dr.

James B. Wade at MCV.   In 1994, claimant continued to seek

treatment from Dr. MacNay while also seeking treatment from Dr.

James B. Carr at MCV.   Based upon this evidence, the commission

did not err in finding that the treatment rendered to claimant at

MCV was unauthorized.
     "Without a referral from an authorized treating physician,

Code § 65.2-603(C) provides for treatment by an unauthorized

physician in an 'emergency' or 'for other good reason.'"

Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421

S.E.2d 483, 485 (1992).
          [I]f the employee, without authorization but
          in good faith, obtains medical treatment
          different from that provided by the employer,
          and it is determined that the treatment
          provided by the employer was inadequate
          treatment for the employee's condition and
          the unauthorized treatment received by the
          claimant was medically reasonable and
          necessary treatment, the employer should be
          responsible, notwithstanding the lack of
          prior approval by the employer.

Id. at 212, 421 S.E.2d at 486.   Claimant did not present evidence

to prove that he sought unauthorized treatment from MCV in good

faith, that the treating physician, Dr. MacNay, rendered

inadequate treatment, or that the unauthorized treatment received

by claimant was medically reasonable or necessary.   Therefore, we

cannot say as a matter of law that the commission erred in




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concluding that employer was not responsible for the cost of the

unauthorized treatment rendered at MCV.

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

                                Affirmed.




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