                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Humphreys and Senior Judge Hodges


SPOTSYLVANIA (COUNTY OF) LAW
 ENFORCEMENT AND VIRGINIA
 MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION

                                             MEMORANDUM OPINION*
v.   Record No. 1158-02-2                         PER CURIAM
                                               OCTOBER 22, 2002
WILLARD BATES UPSHAW, JR.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Ralph L. Whitt, Jr.; Michael P. Del Bueno;
             Whitt & Associates, on brief), for
             appellants.

             (Wesley G. Marshall, on brief), for appellee.


     Spotsylvania (County of) Law Enforcement and its insurer

(hereinafter referred to as "employer") contend the Workers'

Compensation Commission erred in finding that the doctrine of

res judicata barred employer's July 6, 2001 change-in-condition

application.     The application alleged that Dr. James B. Macon

released Willard Bates Upshaw, Jr. (claimant) to return to his

pre-injury work on or before June 25, 2001.     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.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On June 6, 2000, claimant sustained a compensable back

injury.   Employer accepted the claim, and the commission entered

awards for various periods of temporary total and temporary

partial disability.

     On February 23, 2001, employer filed an application seeking

to terminate claimant's benefits on the ground that he was

terminated for cause from selective employment.   On March 13,

2001, claimant filed an application seeking temporary total

disability benefits from February 23, 2001 and continuing.

     During June 2000, claimant began treatment with Dr. Macon.

Dr. Macon diagnosed claimant as suffering from a lumbosacral

strain, lumbar degenerative disc disease at L4-5 and L5-S1, and

a post-concussive syndrome.   On October 12, 2000, Dr. Macon

released claimant to a light-duty sitting job.    On January 30,

2001, Dr. Macon revised claimant's work status by restricting

him from working more than four hours without breaks.

     On February 16, 2001, employer terminated claimant from

selective employment.   On March 13, 2001, claimant returned to

Dr. Macon, who excused claimant from all work at that time.

     In his May 3, 2001 deposition, Dr. Macon testified that he

removed claimant from work on March 13, 2001 because of

claimant's subjective complaints that he could not sit, and he

had a limp and numbness.   Dr. Macon testified that he restricted

claimant from all work until June 1, 2001.   Dr. Macon testified

that after June 1, 2001, he would re-evaluate claimant's work
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status.   Dr. Macon opined that if a job was available that

allowed claimant to sit, stand and walk around as needed as of

June 1, 2001, he would release claimant to perform that job.

Dr. Macon testified that claimant could perform his pre-injury

job as a communications operator if he was given a headset,

allowed to stand while working, and the job did not require

prolonged sitting, heavy lifting, bending, twisting, crawling,

or climbing.   Dr. Macon's medical records and his May 3, 2001

deposition testimony were before the deputy commissioner at the

June 4, 2001 hearing and considered by her in rendering her June

15, 2001 opinion.

     In her June 15, 2001 opinion, the deputy commissioner ruled

that claimant's termination from selective employment

constituted an unjustified refusal of selective employment, but

the refusal did not constitute a termination for justified

cause.    She further ruled that claimant proved he was totally

disabled from March 13, 2001 through April 19, 2001 and that he

cured his refusal of selective employment on April 20, 2001, by

finding employment with a new employer, earning more that he

earned in his selective employment with employer.   The deputy

commissioner's June 15, 2001 opinion was not appealed by either

party.

     On July 6, 2001, employer filed a change-in-condition

application alleging claimant was released to return to his

pre-injury work on or before June 25, 2001.   As support for its
                              - 3 -
application, employer relied upon Dr. Macon's May 3, 2001

deposition testimony and Dr. Macon's June 25, 2001 handwritten

response to a questionnaire sent to him by employer's counsel.

In the questionnaire, employer's counsel asked Dr. Macon for his

opinion as to whether claimant was physically capable of

performing his regular job as a communications operator.

Dr. Macon responded that he was "unable to add any comments

other than included in deposition."    Employer also included the

affidavit of John Brown, employer's director of emergency

communications, in which Brown indicated that claimant had

available to him and was allowed to use a headset in his job as

a communications operator, and that he was allowed to sit,

stand, walk, or otherwise change positions as needed.

     The commission ruled that res judicata barred employer's

July 6, 2001 application on the ground that the issue of whether

claimant's pre-injury job allowed him to stand as needed was

previously decided against employer.   The commission found as

follows:

                The employer's present application is
           premised on the allegation that the
           claimant's pre-injury job allowed him to
           stand as needed, thus, meeting Dr. Macon's
           opinion that the claimant could do his
           regular job as a communications operator if
           he could stand as needed. We agree with the
           Deputy Commissioner that the employer cannot
           now raise this issue.

                At the first hearing, testimony was
           taken as to whether the pre-injury job
           allowed the claimant to stand as needed.
                               - 4 -
          John Brown testified a communications
          operator "can take calls while standing."
          ["]The claimant denied that he could get up
          and move around as desired but testified he
          supposed he could move between calls or
          stand during calls."

               Deputy Stevick did not make a specific
          finding as to whether the pre-injury job
          allowed the claimant to stand as needed.
          However, her finding that it did not is
          implicit in her Award of temporary partial
          benefits. If she were of the opinion that
          the claimant could do his pre-injury work,
          then she would not have awarded temporary
          partial benefits when the claimant found
          alternative light-duty work on April 20,
          2001. If she thought the claimant could do
          his pre-injury job, (i.e. he could stand as
          needed) she would have terminated his award
          then. Instead, she found the claimant cured
          his refusal and awarded partial benefits,
          which indicates she did not think he could
          do his pre-injury job. That decision was
          not appealed and is final.

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

S.E.2d 745 (2002), we recognized as follows:

          [I]n 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 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."

Id. at 322, 557 S.E.2d at 748 (citations omitted).   Furthermore,

"'the commission is entitled to interpret its own orders in

determining the import of its decisions . . . and to examine the

opinion of the deputy commissioner as a whole in order to
                              - 5 -
ascertain the result intended.'"     Id. at 323, 557 S.E.2d at 748

(citation omitted).

     Here, the commission could reasonably conclude that in the

deputy commissioner's June 15, 2001 opinion, she implicitly

found that claimant could not perform his pre-injury job by

awarding him temporary partial disability benefits beginning

April 20, 2001 and continuing.    Employer presented no new

medical evidence to support its July 6, 2001 change-in-condition

application alleging that Dr. Macon had released claimant to

return to his pre-injury work on or before June 25, 2001.

Rather, employer relied upon Dr. Macon's May 3, 2001 deposition

testimony, which had already been considered by the deputy

commissioner, along with evidence regarding claimant's

pre-injury job duties, in rendering her June 15, 2001 opinion.

Thus, the issue of claimant's ability to perform his pre-injury

job based upon Dr. Macon's medical records and Dr. Macon's May

3, 2001 deposition testimony was or could have been litigated

before the deputy commissioner at the June 4, 2001 hearing and

was necessarily determined by her in her June 15, 2001 opinion.

Accordingly, the commission did not err in finding that

employer's July 6, 2001 application was barred by res judicata.

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

                                                           Affirmed.




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