                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and Senior Judge Annunziata
PUBLISHED


            Argued at Salem, Virginia


            MEIDAN, INCORPORATED AND TECHNOLOGY
             INSURANCE COMPANY
                                                                               OPINION BY
            v.     Record No. 0067-13-3                                 JUDGE RANDOLPH A. BEALES
                                                                            OCTOBER 22, 2013
            TINA LEAVELL


                        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           S. Vernon Priddy, III (Two Rivers Law Group, P.C., on briefs), for
                           appellants.

                           Philip B. Baker (Sanzone & Baker, L.L.P., on brief), for appellee.


                   Meidan, Incorporated and its insurer (collectively, employer) appeal the decision of the

            Workers’ Compensation Commission (the commission) awarding benefits to the claimant, Tina

            Leavell. Employer claims that the commission erred in finding (1) that employer could have

            appealed the commission’s first review opinion, (2) that the commission’s findings in its first

            review opinion were the “law of the case,” and (3) that Leavell provided timely notice of the

            workplace accident that resulted in her injury. For the following reasons, we affirm the

            commission in this case.

                                                     I. BACKGROUND

                   “On appeal from the commission, we view the evidence in the light most favorable to

            [Leavell], the party prevailing below.” Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 233, 734

            S.E.2d 683, 685 (2012). The evidence here establishes that Leavell was injured at work while

            stacking cases of beer and that she told her supervisor, Nasser Abuiznied, about the injury on the

            day it occurred. Abuiznied filed an employer’s accident report with the commission on April 15,
2009 that reported this injury. In her initial claim for benefits that she filed with the commission,

Leavell alleged that her workplace injury occurred on April 9, 2009. She later sought and

received leave to amend her claim to allege an injury date of April 2, 2009. Following an

evidentiary hearing, the deputy commissioner found that Leavell suffered a compensable injury.

On full commission review, employer asserted, inter alia, that Leavell’s claim should be barred

because she failed to provide timely written notice of her injury.

          The commission unanimously affirmed the deputy commissioner’s findings on

November 30, 2011 (first review opinion). However, in its first review opinion, the commission

also remanded the matter to the deputy commissioner to address whether claimant was eligible

for disability payments – an issue that is not pertinent to this appeal. Following the deputy

commissioner’s decision on remand, employer again sought full commission review. Pertinent

to this appeal, employer’s written statement challenged findings from the commission’s first

review opinion – including the commission’s finding that Leavell provided timely notice of her

injury.

          On December 10, 2012, the commission unanimously affirmed the findings made upon

remand by the deputy commissioner (second review opinion). The commission’s second review

opinion rejected employer’s challenge of the commission’s findings from its first review opinion

– noting that the first review opinion “was not appealed” and also characterizing the first review

opinion as “the law of the case.” In particular, the commission ruled that “[i]t is the law of the

case, as found by the November 30, 2011 Review Opinion, and we find that the claimant

provided the employer with adequate notice” of her workplace injury. The commission entered

an award of benefits to Leavell, and employer now appeals to this Court.




                                                -2-
                                           II. ANALYSIS

                        A. APPEALABILITY OF THE FIRST REVIEW OPINION

       In its first assignment of error, employer argues that the commission erred when it

“evidently held that [employer] had the opportunity to appeal” the first review opinion to this

Court. Employer contends that an immediate appeal to this Court was not permitted because the

first review opinion did not actually issue a final award to Leavell. See Code § 65.2-706; see

also Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985).

Employer asserts that the commission suggested otherwise, pointing to language in the second

review opinion explaining that the first review opinion “was not appealed” to this Court.1

       However, employer fails to raise any basis for relief in its first assignment of error. Even

if the commission thought that the first review opinion could have been appealed immediately, it

is well established that an “adverse interlocutory adjudication may be the subject of appeal from

the final adjudication.” Smith v. Woodlawn Constr. Co., 235 Va. 424, 429, 368 S.E.2d 699, 702

(1988); see Uninsured Employer’s Fund v. Kramer, 32 Va. App. 77, 81, 526 S.E.2d 304, 305

(2000) (explaining that a litigant “was not required” to appeal an issue decided in the

commission’s first opinion that remanded the matter for further factfinding by the deputy

commissioner until the commission fully determined the merits of the case on remand). Here,

the commission simply could not – and actually did not – find in the second review opinion that

an appeal to this Court challenging any of the commission’s findings in its first review opinion

had been waived or was otherwise precluded.




       1
         Given the circumstances of this case and the nature of our decision in this opinion, we
need not address and we decline to address whether the first review opinion was an interlocutory
order “adjudicating the principles of a cause” under Code § 17.1-405(4)(ii).
                                                -3-
               B. FINDINGS OF THE FIRST REVIEW OPINION AS “LAW OF THE CASE”

       In its second assignment of error, employer argues that the commission misapplied the

“law of the case” doctrine to preclude the commission’s own authority to reconsider the findings

that it made in its first review opinion. The longstanding definition of the law of the case

doctrine in Virginia, “briefly stated, is this: Where there have been two appeals in the same case,

between the same parties, and the facts are the same, nothing decided on the first appeal can be

re-examined on a second appeal.” Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93

S.E. 684, 687 (1917). Thus, “[r]ight or wrong, [the ruling in the first appeal] is binding on both

the trial court and the appellate court, and is not subject to reexamination by either.” Id.

       Employer asserts that the law of the case doctrine does not apply to commission

proceedings2 because the commission is not an appellate court – but instead reviews the findings

of its deputy commissioners in a de novo posture. Certainly, the full commission is the factfinder

for commission proceedings. See, e.g., Haley v. Springs Global U.S., Inc., 54 Va. App. 607,

611-12, 681 S.E.2d 62, 64 (2009). Moreover, the full commission has the specific power to

“adjudicate issues and controversies relating thereto.” Code § 65.2-201. As the Supreme Court

of Virginia has explained, motions for rehearing or for reconsideration “are not uncommon” in

commission proceedings, “and the Commission may vacate the original decision pending

consideration of such a motion.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587

S.E.2d 546, 548 (2003). Clearly, the full commission has the authority to limit or permit

reconsideration of any issues it has already decided when it reviews the case again after

remanding the matter to a deputy commissioner.


       2
          Leavell notes that this Court mentioned the “law of the case” doctrine in a prior appeal
arising from the commission, American Filtrona Co. v. Hanford, 16 Va. App. 159, 428 S.E.2d
511 (1993). In that case, a deputy commissioner “decided to disregard” the commission’s
specific remand instructions. Id. at 165, 428 S.E.2d at 514. Here, it is unquestioned that the
deputy commissioner complied with the commission’s remand instructions.
                                               -4-
       However, even assuming without deciding that the commission here incorrectly used the

term “law of the case” in the second review opinion, the record fails to establish reversible error.

Simply put, using the wrong term is not necessarily the same as committing reversible error.

“[A]n appellate court ‘reviews judgments, not statements in opinions.’” Family Redirection

Inst., Inc. v. Commonwealth, 61 Va. App. 765, 773, 739 S.E.2d 916, 920-21 (2013) (quoting

California v. Rooney, 483 U.S. 307, 311 (1987)). Significantly, the commission here never

found in its second review opinion that it lacked authority to review any of the findings from its

first review opinion. Indeed, nothing from the second review opinion suggests or even hints at

such a misunderstanding of the commission’s authority.

       Instead, viewing the circumstances here in the light most favorable to Leavell (as we

must, since she was the prevailing party below), the record establishes at most that the

commission simply declined to reconsider the issues it decided in the first review opinion during

the second round of full commission review. Despite its use of the term “law of the case,” the

commission’s ruling in its second review opinion merely reflects the practical reality that the

commission in a subsequent review opinion generally “does not review its own determinations”

that it has already made in a first review opinion. Holly Farms Foods, Inc. v. Carter, 15 Va. App.

29, 35, 422 S.E.2d 165, 168 (1992).

       In addition, as Leavell asserts on appeal, language from the second review opinion

suggests that the full commission actually did reconsider (but ultimately did not disturb) the

finding from the first review opinion that employer challenges in this appeal. Specifically, the

commission stated in its second review opinion that “[i]t is the law of the case, as found by the

November 30, 2011 Review Opinion, and we find that the claimant provided the employer with

adequate notice” of her injury. (Emphasis added). Given the commission’s use of the phrase

“and we find,” the commission seemingly took an additional step in the second review opinion

                                                -5-
and issued a finding on the adequacy of Leavell’s notice of her injury. This language from the

commission’s second review opinion further reinforces our conclusion that the commission did

not actually apply the “law of the case” doctrine in the manner that employer alleges.

       Therefore, the full commission in its second review opinion either (1) declined to revisit

the adequacy-of-notice issue decided in the first review opinion or (2) did briefly revisit that

issue and came to the same conclusion. In either event, the record does not support employer’s

allegation that the commission found that it lacked authority to revisit that issue. Accordingly,

even assuming without deciding that the commission incorrectly used the term “law of the case”

in its second review opinion, any such error in the commission’s incorrect usage of that term was

harmless.

                 C. LEAVELL’S PROVIDING NOTICE OF HER INJURY TO EMPLOYER

       In its third assignment of error, employer argues that the commission erred in finding that

Leavell provided adequate and timely notice of her injury – because she did not provide written

notice of her injury within thirty days of its occurrence.

               Code § 65.2-600(D) requires an employee to give written notice of
               an accident to the employer within thirty days of the occurrence of
               the accident. However, written notice is unnecessary if the
               employer has actual notice through a foreman or other superior
               officer. Newport News Shipbuilding & Dry Dock Co. v. Barnes,
               32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000); Kane Plumbing,
               Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828, 832 (1988).
               Additionally, compensation will not be barred for failure to give
               timely notice unless the employer can prove it was prejudiced by
               such lack of notice. Code § 65.2-600(E).

Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543 S.E.2d 619, 623 (2001)

(emphasis added); see Department of Game and Inland Fisheries v. Joyce, 147 Va. 89, 97, 136

S.E. 651, 654 (1927).

       Here, Leavell testified that she told Abuiznied about her injury on the day it occurred.

Moreover, the record establishes that Abuiznied completed and filed an employer’s accident
                                                -6-
report in the commission on April 15, 2009. Abuiznied reported “4/11/2009” as the date of

claimant’s injury and also indicated, “[Employee] is having stomach pain and two days later

claims she pulled a muscle.” (Emphasis added). Thus, whether Leavell’s workplace injury

occurred on April 9, 2009 (as she originally alleged) or on April 2, 2009 (as she later alleged and

as the full commission found3), Leavell’s actual notice of her injury to her employer was timely

in either circumstance – easily occurring within thirty days of the accident, as required by the

statute. Accordingly, the commission’s finding that Leavell provided timely and proper notice of

her injury was supported by credible evidence in the record. See Harris, 35 Va. App. at 171, 543

S.E.2d at 623; Small, 7 Va. App. at 138, 371 S.E.2d at 832.

                                         III. CONCLUSION

       Even assuming without deciding that the commission erred when it used the term “law of

the case” to describe its findings from the first review opinion, such error was not reversible

error. The commission never indicated that it actually lacked authority to reconsider those

findings in its second review opinion while the commission clearly still had jurisdiction over the

case. Furthermore, on appeal from the commission’s final order, we hold that credible evidence

supports the commission’s finding that Leavell provided adequate and timely notice of her injury

as it is clear that employer had actual notice easily within thirty days of the accident that caused

the injury. Accordingly, for the foregoing reasons, we affirm the commission’s award of

benefits to Leavell.

                                                                                           Affirmed.




       3
          We disagree with employer’s argument expressed in its third assignment of error that
the commission erred when it permitted Leavell to amend her claim to change the date of her
injury from April 9, 2009 to April 2, 2009. The commission found Leavell credible on this point
and simply permitted Leavell to raise an injury date that the commission actually determined was
more accurate than the date she originally alleged.
                                               -7-
