                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia


ARAMARK CORPORATION AND
 NATIONAL RELIANCE INSURANCE COMPANY
                                      MEMORANDUM OPINION * BY
v.   Record No. 0921-99-2           JUDGE ROSEMARIE ANNUNZIATA
                                          MARCH 14, 2000
VIRGINIA I. TERRY


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          S. Vernon Priddy, III (Cecil H. Creasey, Jr;
          Sands, Anderson, Marks & Miller, on briefs),
          for appellants.

          (Thomas J. Schilling, on brief), for
          appellee. Appellee submitting on brief.


     Aramark Corporation and its insurer, Reliance National

Insurance Company ("appellants") appeal from a decision of the

Workers' Compensation Commission awarding temporary partial

disability benefits ("TPD") to Virginia I. Terry.   On appeal,

appellants contend 1) that Terry failed to establish a change in

condition warranting TPD for the period claimed; 2) that the

commission erroneously found that Terry established a causal

connection between her claimed disability and the compensable

injury she sustained; and 3) that the doctrine of res judicata




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
bars Terry's claim.   We agree, and reverse the commission's

decision.

                            BACKGROUND

     Terry was employed by Aramark at Randolph-Macon College in

Ashland, Virginia as a food service worker.    While on the job,

she suffered an injury to her lower back and left knee on May

16, 1996.   Immediately following her accident, Terry sought

treatment with Dr. Kimberly Smith, who diagnosed her as

suffering from a lumbar sprain and a sprained knee.    Dr. Smith

noted that Terry had a prior history of back problems and a

previous injury to her left knee.   On May 21, 1996, Dr. Smith

referred Terry to Dr. Steven Fiore, who met with Terry on May

23, 1996 and again on June 13, 1996.     Dr. Fiore, in turn,

referred Terry to Dr. William Brickhouse, who examined Terry on

June 24, 1996, and also took note of her prior back and knee

problems.

     On September 10, 1996, Dr. Brickhouse reported some

improvement in Terry's condition and authorized her return to

work on a Functional Capacity Evaluation form.    He noted that

Terry had worked under certain physical restrictions even prior

to her accident and that he believed she could work "at least

[at] that level."   He completed a "work status report" in which

he stated that Terry could work from six to eight hours per day.

Later, on June 12, 1997, Dr. Brickhouse reported that Terry's


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total period of disability was from May 23, 1996 through

September 19, 1996, at which time she was capable of returning

to work and performing her pre-injury duties.   Even on June 17,

1997, however, Dr. Brickhouse noted that Terry continued to

suffer from "lumbar disc derangement and synovitis [of] both

knees."

     On January 8, 1997, Terry filed a claim seeking an award of

temporary total disability benefits ("TTD") beginning on May 16,

1996, the date of the accident.   At a hearing before the deputy

commissioner on June 17, 1997, Terry amended her claim by

dropping her demand for continuing disability benefits.    Instead

she sought TTD for a period ending on February 2, 1997.    The

deputy commissioner issued an opinion on July 22, 1997, awarding

Terry TTD for the period from May 17, 1996 through August 15,

1996, and also for the period from November 6, 1996 through

November 11, 1996.   Terry also was awarded TPD for the period

from November 12, 1996 through February 2, 1997.   Appellants

then sought review from the full commission.

     Upon review, Terry agreed to a stipulation that the

disability she experienced during the period from November 6,

1996 through February 3, 1997 was not causally connected to her

accident of May 16, 1996.   The commission accepted this

stipulation, affirmed Terry's award of benefits through August




                               - 3 -
15, 1996, and reversed the award of benefits for the period of

November 6, 1996 through February 2, 1997.

     On June 17, 1997, Terry filed a second claim in which she

alleged a change in condition, and requested ongoing TTD for a

period beginning on March 27, 1997 and continuing indefinitely.

The deputy commissioner heard argument on October 6, 1998, in

which appellants contended that Terry was not disabled during

the period alleged, that any disability she may have experienced

during that time was not causally related to her injury, and

that the relief she sought was barred by her stipulation in the

prior claim.   Terry responded that she had experienced a change

in condition in the period specified in her claim and that she

was not barred by her earlier stipulation.   Although the

commissioner found that Terry was only partially disabled for

the period in question, he nevertheless ruled that Terry had

established a change in condition and that she was not barred by

res judicata as a result of her previous stipulation, and

awarded her TPD for the specified period.    The full commission

affirmed these conclusions, and appellants noted their appeal to

this Court.

                             ANALYSIS

     Appellants argue that Terry cannot establish a change in

condition for the period beginning March 27, 1997 because the

evidence upon which she relies is a letter from Dr. Brickhouse


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of May 8, 1997, a document introduced as evidence at the hearing

on her first claim.   Because she stipulated at the hearing that

her disability at that time was not causally related to her

industrial accident, appellants contend that Terry cannot rely

upon the letter to evidence a "change in condition" with respect

to the period beginning on March 27.     We agree.

     Code § 65.2-101(4) defines a "change in condition" as "a

change in physical condition of the employee as well as any

change in the conditions under which compensation was awarded,

suspended, or terminated which would affect the right to, amount

of, or duration of compensation."      See Fodi's v. Rutherford, 26

Va. App. 446, 448, 495 S.E.2d 503, 504 (1998).       King's Market v.

Porter, 227 Va. 478, 317 S.E.2d 146 (1984), controls the

determination of whether Terry's claim qualifies under Code

§ 65.2-101(4) as a "change in condition" sufficient to warrant a

resumption of disability benefits.     In King's Market, the

Virginia Supreme Court set forth a two-pronged test for

reinstating disability benefits where the employer seeks to

terminate benefits on a change of condition application because

the disability has ceased.

          [T]he only question is whether the
          employee's prior condition of work
          incapacity has changed; the question of
          causal connection is not an issue. On the
          other hand, when an employee files an
          application for reinstatement of disability
          benefits, two questions arise: 1) has there
          been a change in the employee's capacity to

                               - 5 -
          work; 2) if so, is the change due to a
          condition causally connected with the injury
          originally compensated.

Id. at 483, 317 S.E.2d at 148; see Hercules, Inc. v. Carter, 13

Va. App. 219, 223, 409 S.E.2d 637, 639-40 (1991).

     Terry's change in benefit status clearly fails the first

prong of the test.   The only change she has asserted is that she

"went from a period of not receiving workers' compensation to a

change in that condition, as she sought temporary total

disability beginning March 27, 1997."   Such a change in benefit

status has no bearing upon the claimant's capacity to work.

Furthermore, Terry's disability failed to satisfy the second

prong of the King's Market test.   Nothing in Terry's medical

records after the date of the hearing on the first claim

demonstrates a "change due to a condition causally connected

with the injury" for which she originally sought compensation.

King's Market, 227 Va. at 483, 317 S.E.2d at 148.   Indeed, Dr.

Brickhouse outlined the history of Terry's treatment with him in

a letter to the commission, dated May 8, 1997, and confirmed

that as of the date of the letter Terry continued to experience

back and knee pain which he attributed to 1) degenerative disc

and joint disease of the lumbar spine, and 2) mild degenerative

changes in her knees.   Dr. Brickhouse also stated in a note

dated June 17, 1997, that Terry complained of continued knee

pain, and he reported that she had not returned to work since


                               - 6 -
November, 1996, because of her knee and back problems.    Terry's

statements, reported by Dr. Brickhouse, demonstrate that her

disability following March 27, 1997 was the same as that which

she experienced in the period from November, 1996 through

February 2, 1997, which, by stipulation, she conceded was not

causally connected to her industrial accident.   Her condition

therefore remained unchanged from the first period to the

second.

     Finally, Terry's claim of disability in the second

proceeding is barred by the doctrine of res judicata.     See

Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128,

510 S.E.2d 255, 259 (1999) (en banc) (res judicata applies to

decisions of the commission); Allegheny Airlines, Inc. v.

Merillat, 14 Va. App. 341, 343-44, 416 S.E.2d 467, 469 (1992)

(where claims relate to different periods of time and the claim

in the second proceeding is supported by different evidence than

was offered in the first proceeding, res judicata does not

apply).

     Although Terry's second claim relates to a different period

of time than that claimed in the first proceeding, the medical

evidence she offered in the second proceeding was identical to

that offered in the first proceeding, viz. the May 8, 1997

letter from Dr. Brickhouse.   Her claim is thus barred by res




                               - 7 -
judicata.     See Merillat, 14 Va. App. at 343-44, 416 S.E.2d at

469.

       For the foregoing reasons, we reverse the decision of the

commission.

                                                     Reversed.




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