                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Kelsey and Senior Judge Hodges


JOHN DAVID WHEELER
                                             MEMORANDUM OPINION*
v.   Record No. 2881-02-3                         PER CURIAM
                                                MARCH 4, 2003
CAREY CORPORATION AND
 TRAVELERS INDEMNITY COMPANY OF ILLINOIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Charles R. Allen, Jr., on brief), for
             appellant.

             (Jonnie L. Speight; Lisa Pierce Laughon;
             Johnson, Ayers & Matthews, on brief), for
             appellees.


     John David Wheeler (claimant) contends the Workers'

Compensation Commission erred in finding that his June 12, 2002

application for medical benefits was barred by the doctrine of

res judicata, pursuant to Deputy Commissioner Costa's March 28,

2002 opinion.     Upon reviewing the record and the parties'

briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.

                  We have held that in a proper case
             "principles of res judicata apply to
             Commission decisions." Where applicable,
             the principle "bars relitigation of the same
             cause of action, or any part thereof which

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
          could have been litigated between the same
          parties and their privies." "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."

Lowes of Christiansburg v. Clem, 37 Va. App. 315, 322, 557

S.E.2d 745, 748 (2002) (citations omitted).

     In ruling that claimant's June 12, 2002 claim was barred by

the doctrine of res judicata, the commission summarized the

findings of Deputy Commissioner Costa in his March 28, 2002

opinion as follows:

          [T]here had never been a definitive
          determination that the claimant sustained
          anything other than a soft-tissue injury to
          his lower back as a result of his November
          30, 1999, accident. . . . "Although the
          claimant was admittedly found to have
          degenerative disc disease at multiple levels
          of his lumbar spine when he underwent his
          first MRI on February 29, 2000, disc disease
          is a degenerative rather than a traumatic
          condition. Moreover, the disk bulging
          appreciated by the radiologist did not,
          according to Dr. Harron's April 17, 2000
          evaluation, warrant surgical intervention."
          Referring to the medical diagnoses and
          conclusions of Dr. Murray Joiner and
          Dr. Raymond V. Harron, the deputy
          commissioner wrote, "Because two physicians
          who have had long-standing involvement with
          the claim differ with the claimant [who had
          opined that his current condition was an
          exacerbation of his 1999 injury], we adopt
          their views as our own, and deny the
          claimant's request for payment of medical
          bills incurred after January 4, 2001 and
          compensation beyond the suspension date."

Neither party sought review of the March 28, 2002 opinion.

                            - 2 -
     On June 12, 2002, claimant filed a claim seeking to hold

employer responsible for the cost of fusion surgery related to

his November 30, 1999 injury by accident and needed to address

the disc disruption at the L5-S1 level.   Claimant relied upon

the April 10, 2002, April 22, 2002, and May 17, 2002 reports of

Dr. Gregory D. Riebel, an orthopedic surgeon.

     Here, credible evidence supports the commission's finding

that claimant's June 12, 2002 claim seeking to hold employer

liable for medical expenses related to the fusion surgery

proposed by Dr. Reibel was barred by the doctrine of res

judicata.    In his March 28, 2002 opinion, Deputy Commissioner

Costa ruled that "we cannot reasonably conclude that the

claimant sustained any discal pathology as a result of the

accident."   The issue of employer's liability for the cost of

fusion surgery to address disc herniation at the L5-S1 level was

before Deputy Commissioner Costa at the March 26, 2002 hearing.

Thus, prior to claimant's June 12, 2002 claim, the commission

made a final determination on the merits that proposed surgery

at the L5-S1 level was not causally related to the November 30,

1999 injury by accident.

     Accordingly, based upon this record, the commission did not

err in applying the doctrine of res judicata to bar claimant's

June 12, 2002 claim seeking to hold employer responsible for the

cost of the fusion surgery recommended by Dr. Reibel.

                                                           Affirmed.
                              - 3 -
