                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia


PRICE GUTTERING & INSULATING AND
 CGU INSURANCE COMPANY
                                         MEMORANDUM OPINION * BY
v.   Record No. 0910-01-3                 JUDGE G. STEVEN AGEE
                                            OCTOBER 16, 2001
NOLAND JEFFERY KILGORE


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Kevin T. Streit (James G. Muncie, Jr.;
          Midkiff, Muncie & Ross, P.C., on briefs), for
          appellants.

          P. Heith Reynolds (Wolfe, Farmer, Williams &
          Rutherford, on brief), for appellee.


     Price Guttering & Insulating and its insurer, CGU Insurance

Company (herein collectively referred to as "the employer"),

appeal from a decision of the Workers' Compensation Commission

awarding benefits to Noland Jeffery Kilgore (the claimant).    The

employer contends the commission erred in finding that the

claimant filed his claim for benefits related to his neck within

the statutory period, that the claim was not barred by the

doctrine of res judicata, and the evidence presented was

sufficient to prove that the claimant's treatment was

reasonable, necessary and/or causally related to the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
work-related accident.    We disagree with the employer and affirm

the commission's decision.

                            I.    BACKGROUND

        On April 5, 1996, the claimant fell off a wet roof on which

he was installing gutters.       He fell approximately fourteen feet

to the ground and landed on his right shoulder and right hip.

The subsequent claim for benefits identified an injury to the

right shoulder, but during discovery the claimant submitted

interrogatory answers reflecting a neck injury.      In the deputy

commissioner's first opinion, dated September 19, 1996, the

accident was determined to be compensable, and the claimant was

awarded medical benefits for as long as necessary and temporary

total disability benefits from April 5, 1996 through August 16,

1996.    The first opinion did not make a finding of fact as to

what injury (shoulder, neck, neither or both) was the "injury by

accident" under Code § 65.2-101.

        On July 2, 1999, the claimant filed a second claim with the

commission seeking an order requiring the employer to pay his

unpaid medical expenses pursuant to the first opinion, including

certain expenses related to claimed injuries to his neck.      The

employer defended on the basis that the treatment provided was

not causally related to the April 1996 accident, that the

claimant suffered only an injury to his right shoulder as a

consequence of the accident, and that treatment to the neck or



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any other conditions claimed to be causally related to the

accident were barred by the doctrine of res judicata.

     The deputy commissioner who wrote the first opinion also

wrote a second opinion, dated October 19, 1999.        In pertinent

part, the second opinion contained the following discussion:

          [T]he previous opinion found that the
          claimant suffered an injury to the right
          shoulder . . . .

              *        *      *      *      *      *       *

          [W]e do not have [a medical] opinion based
          upon a complete and accurate history
          advising what injuries claimant may have
          suffered in addition to the right shoulder.
          . . . [C]laimant denied having any previous
          difficulties with his neck and upper back
          . . . . With the record we have been
          presented with . . . we have no way of
          determining whether or not specific
          treatment that has not been paid for was for
          injuries claimant suffered on April 5, 1996.

     It was then ordered that the employer was to pay for all

treatment associated with the right shoulder, but "any other

treatment not causally related to that injury or reasonable and

necessary to treat that injury are not the responsibility of

[the employer]."

     The claimant timely appealed this decision to the full

commission.       The employer argued that the treatment to the

claimant's neck was not causally related to the April 1996

accident, was not timely filed under Code § 65.2-601 and, in the

alternative, that the first opinion only covered treatment for




                                   - 3 -
the right shoulder, not the neck, and re-litigation was barred

by the doctrine of res judicata.

     In an opinion dated March 6, 2001, a majority of the full

commission found "that the evidence clearly preponderates that

the claimant's neck and right shoulder symptoms are causally

related to his accident."    The opinion cites numerous references

in the claimant's medical file of complaints of neck pain and

diagnoses of cervical strain by several physicians.      The

commission found that Dr. Kanwal, the treating internist since

the accident, had "stated unequivocally that the shoulder and

neck problems are causally related."       It is also noted that

Dr. Ahmad, who has treated the claimant since 1997, opined that

the shoulder and neck problems were causally related.

     The commission rejected the statute of limitations and the

res judicata arguments.     Regarding res judicata, the majority

opined that the deputy commissioner's first opinion, which

awarded benefits, did not exclude a neck injury.      Commissioner

Tarr dissented as to the res judicata determination.

                             II.   ANALYSIS

     On appeal, the employer contends (1) the commission lacked

jurisdiction to award benefits for a neck injury because

claimant failed to file a timely claim for these injuries; (2)

the commission failed to properly apply the doctrine of res

judicata, which would bar consideration of the claimant's neck



                                   - 4 -
injury claims; and (3) even if the commission had jurisdiction

and res judicata does not apply, the record contains no evidence

to support the commission's finding of causation.   We disagree

with these contentions and affirm the opinion of the commission.

                    A.   Statute of Limitations

     "The right to compensation under [the Workers' Compensation

Act] shall be forever barred, unless a claim be filed with the

Commission within two years after the accident."    Code

§ 65.2-601; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499,

237 S.E.2d 794, 796-97 (1977).    "This is the notice which

activates the right of the employee to compensation and which

invokes the jurisdiction of the [Workers' Compensation

Commission]."   Binswanger Glass Co. v. Wallace, 214 Va. 70, 73,

197 S.E.2d 191, 194 (1973).

     It is the intent of Code § 65.2-601 that, within the time

prescribed by the section,

          an employee must assert against his employer
          any claim that he might have for any injury
          growing out of the accident. . . . Failure
          to give such notice within [the statutorily
          prescribed period] would seriously handicap
          the employer . . . in determining whether or
          not there was in fact an injury, the nature
          and extent thereof, and if related to the
          accident. The reason for the limitation
          . . . is a compelling one.

Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d

849, 853 (1975).




                                 - 5 -
     While the only injury listed by the claimant in his initial

claim form was "[i]njury to right shoulder," he identified a

neck injury in response to the interrogatory request to

"[d]escribe in detail and with particularity each and every

injury which you contend you suffered as a result of your

alleged accidental injury."   This discovery answer was placed

into evidence in 1996, prior to the first opinion.   Accordingly,

the employer and the commission were on notice that the claimant

was complaining of a neck injury in 1996.    This is well within

the statute of limitations so the Shawley doctrine does not

apply.

     At oral argument, but not by brief, the employer cited our

recent unpublished opinion in McKee Foods Corporation v. Atkins,

No. 2727-00-3 (Va. Ct. App. July 3, 2001), as support for its

Shawley claim.   McKee, though, is clearly distinguishable as the

employer in that case was only notified of injuries listed in

the parties' Memorandum of Agreement.   The untimely claimed

injury in McKee was not listed.   In the case at bar, by

contrast, the employer was provided specific timely notice by

the claimant of his neck injury in direct answer to the

employer's interrogatories.

                         B.   Res Judicata

     The doctrine of res judicata is applicable to decisions of

deputy commissioners and the full commission.    K & L Trucking



                               - 6 -
Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302

(1985).   "'Res judicata precludes the re-litigation of a claim

or issue once a final determination on the merits has been

reached.'"    Rusty's Welding Service, Inc. v. Gibson, 29 Va. App.

119, 128, 510 S.E.2d 255, 259 (1999) (quoting Gottlieb v.

Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669 (1994)).

Therefore, when a decision has been made, absent fraud or

mistake, the decision of the commission or a deputy commissioner

from which no party seeks timely review is binding upon the

commission.    Thurber, 1 Va. App. at 219, 337 S.E.2d at 302.

     It is the employer's contention that the first opinion,

issued by the deputy commissioner in 1996, determined that the

claimant suffered only an injury to his right shoulder, and,

since a neck injury was complained of at that time, the claimant

was barred from later making a claim based on the neck injury.

It is further argued that any ambiguity relating to the neck

injury determination in the first opinion was clarified by the

same deputy commissioner's second opinion.   The employer reads

the second opinion to definitively hold the claimant sustained

only a shoulder injury.   The full commission disagreed, finding

"the initial hearing, which awarded benefits, did not exclude

neck treatment."   We agree with the commission's determination.

     We dealt with the basic principles regarding the

application of res judicata to decisions of the commission in



                                - 7 -
Rusty's Welding Service, 29 Va. App. at 126-31, 510 S.E.2d at

258-61.   Accordingly, we review de novo the commission's

determination as to the applicability of res judicata, a

question of law.    Id. at 128, 510 S.E.2d at 259.

            As the party seeking to assert res judicata
            the employer must prove that the deputy
            commissioner rendered a final judgment in
            its favor. Generally, a judgment is final
            for the purposes of res judicata when
            "nothing more is required to settle the
            rights of the parties or the extent of those
            rights." Furthermore, the employer must
            prove by a preponderance of the evidence
            that the issue previously raised was decided
            on the merits.

Id. (internal citations omitted).

       The employer has failed to meet its burden.   The first

opinion is vague and does not identify, from among the injuries

in evidence, which injury (or injuries) is the basis for the

finding of "injury by accident."    Even if the deputy

commissioner thought he made a finding excluding recovery for

the neck injury in the first opinion, there is nothing in the

first opinion by which anyone could determine he did so.    The

commission, like the trial court, speaks through its orders.

Id. at 129, 510 S.E.2d at 260.     We cannot say the neck injury

was litigated and decided at the 1996 hearing, as a matter of

law.

       We find no support for the employer's contention that the

deputy commissioner's second opinion can retroactively rewrite



                                 - 8 -
the first opinion to exclude the neck injury.    While the second

opinion identifies a right shoulder injury, it does not exclude

a neck injury.   Even assuming, arguendo, that the deputy

commissioner's second opinion made a determination excluding a

neck injury, this is the first time that determination was

communicated and the claimant timely appealed the second

opinion.   We, therefore, cannot say as a matter of law that the

full commission erred in finding the doctrine of res judicata

inapplicable.

                           C.    Causation

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

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 789 (1990).    "The

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding."   Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).

     In ruling that the claimant proved by a preponderance of

the evidence that the treatment provided to him for his neck was

causally related to his 1996 compensable injury by accident, the

commission found as follows:

           From this record, we find the evidence
           clearly preponderates that the claimant's
           neck and right shoulder symptoms are
           causally related to his accident.
           Dr. Kanwal, the internist who has treated



                                 - 9 -
           him since the accident, stated unequivocally
           that the shoulder and neck problems are
           causally related. Dr. Ahmad, who has
           treated him since August 1997, has also
           stated unequivocally that the cervical and
           right shoulder conditions are causally
           related. It is well established that when
           faced with conflicting medical opinions, the
           Commission gives greater deference to the
           unequivocal opinions of the treating
           physicians than to the opinion of a
           non-treating independent medical evaluator.
           Pilot Freight Carriers v. Reeves, 1 Va. App.
           435, 439, 339 S.E.2d 570, 572 (1986). We[,]
           therefore[,] find that the neck and right
           shoulder conditions are reasonable,
           necessary[] and causally related to the
           compensable accident.

In its role as fact finder, the commission was entitled to weigh

the medical evidence, to accept the opinions of Drs. Kanwal and

Ahmad, and to reject any contrary medical opinions.   The

opinions of the treating physicians constitute credible evidence

to support the commission's decision.   "The fact that there is

contrary evidence in the record is of no consequence if there is

credible evidence to support the commission's decision."      Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).   Moreover, "[i]n determining whether credible evidence

exists, the appellate court does not retry the facts, reweigh

the preponderance of the evidence, or make its own determination

of the credibility of the witnesses."   Id.

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

                                                            Affirmed.




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