                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


BILLY E. TIBBS, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 2152-00-3                         PER CURIAM
                                              FEBRUARY 27, 2001
ISLAND CREEK COAL COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Billy E. Tibbs, Jr., pro se, on briefs).

             (Michael F. Blair; Lisa Frisina Clement; Penn
             Stuart, on brief), for appellee.


     Billy E. Tibbs, Jr. (claimant) contends that the Workers'

Compensation Commission erred in denying his application

alleging a change in condition on the ground that it was barred

by the doctrine of res judicata.     Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit.     Accordingly, we summarily affirm the

commission's decision.     See Rule 5A:27.

     In denying claimant's application, the commission found as

follows:

             [C]laimant had long-standing pre-existing
             back problems associated with degenerative
             disc disease. There is no dispute that in
             September of 1997, he suffered strains of
             the left knee, left leg and lower back.
             However, as found by Deputy Commissioner

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Bruner in his Opinion of April 10, 1998, the
medical evidence preponderated in
establishing that the compensable strains
had resolved and that the claimant had
returned to his pre-injury condition.

     When the claimant submitted his change
in condition application in May of 1998, he
continued to complain of disability causally
related to problems with his severe
degenerative disc disease. After reviewing
the voluminous medical record, however, the
Deputy Commissioner found that the claimant
had recovered from his minor strains and
sprains, and found "that symptoms caused by
the degenerative disease claimant has were
not caused, precipitated or aggravated by
the September 26, 1997 accident." We
affirmed the Deputy Commissioner's Opinion,
none of the parties sought an appeal before
the Court of Appeals, and the decision
became final.

     The medical evidence upon which
claimant primarily relies in this
application is Dr. [Paul C.] Peterson's
April 8, 1999 letter, in which he reports
his belief that the claimant's degenerative
disc disease was causally related to the
compensable accident. Dr. Peterson has not
identified any new condition, or suggested
that the claimant has, subsequent to his
previous change in condition application,
developed any different form of degenerative
disc disease or symptomology. The claimant
has introduced no evidence that would
suggest that the causal relationship between
the injury by accident and his current
condition could not have been determined
prior to the present application. Dr.
Peterson has merely offered an opinion as to
the cause of the claimant's symptomatic
degenerative disc disease that is contrary
to those that formed the basis of the
Commission's decision on the claimant's
earlier change in condition application.

     Because the Deputy Commissioner's
earlier opinion finding that the claimant's

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            ongoing complaints associated with
            degenerative disc disease were not "caused,
            precipitated or aggravated" by the
            compensable accident is final, the claimant
            cannot now re-litigate the issue merely
            because he has acquired a new, contrary
            opinion of causation.

     In Fodi's and Aetna Cas. & Sur. Co. v. Rutherford, 26 Va.

App. 446, 495 S.E.2d 503 (1998), we recognized the following:

                 Code § 65.2-101 defines a "change in
            condition" as "a change in the physical
            condition of the employee as well as a
            change in the conditions under which
            compensation was awarded, suspended, or
            terminated which would affect the right to,
            amount of, or duration of compensation."
            When an employee applies for reinstatement
            of disability benefits based upon a change
            in condition, the commission must determine:
            (1) whether a "change in condition" has
            occurred as defined in Code § 65.2-101, that
            affects the employee's capacity to work, and
            (2) if so, whether the change is due to a
            condition causally connected with the
            original compensable injury. Where an
            application for a change in condition is
            filed for the sole purpose of presenting
            additional evidence in support of a claim
            that has previously been denied, res
            judicata will bar reconsideration of the
            claim.

Id. at 448, 495 S.E.2d at 504 (citations omitted).

     Here, credible evidence supports the commission's finding

that claimant's application was barred by the doctrine of res

judicata.   Claimant's award was terminated on April 10, 1998

based upon the deputy commissioner's finding that claimant no

longer suffered from a disability that was causally related to

his compensable September 26, 1997 injury by accident.     The


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deputy commissioner found that the evidence failed to prove that

claimant's degenerative disc disease was a result of or

aggravated by the September 26, 1997 incident.   Furthermore, on

April 30, 1999, the commission affirmed Deputy Commissioner

Burchett's decision denying claimant's application alleging a

change in condition on the ground that he failed to prove that

his degenerative disc disease was caused by or aggravated by the

September 26, 1997 incident.   Thus, prior to claimant's January

25, 1999 application, it had twice been determined that

claimant's ongoing disability was the result of degenerative

disc disease that was not caused by or aggravated by his

compensable accident.   Accordingly, the commission correctly

concluded that claimant's January 25, 1999 change in condition

application, alleging that his degenerative disc disease, the

accompanying treatment, and resulting disability were caused by

or aggravated by his September 26, 1997 work-related accident,

was barred by the doctrine of res judicata.   Where an employee

seeks a change in condition with both incapacity and causation

in issue after the rejection of a previous application, the new

application is barred by res judicata, when the only new

evidence is a change in the physician's opinion on the issue of

causation.   See Amp, Inc. v. Ruebush, 10 Va. App. 270, 275, 391

S.E.2d 879, 882 (1990).

     Based upon this record, the commission did not err in

applying the doctrine of res judicata to bar claimant's January

                               - 4 -
25, 1999 application alleging a change in condition.   Because

our ruling on the res judicata issue disposes of this appeal, we

need not address the causation issue raised by claimant.

                                                           Affirmed.




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