                               COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Senior Judge Fitzpatrick
Argued at Alexandria, Virginia

AMERICAN ZURICH INSURANCE COMPANY
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0498-07-4                                   JUDGE WILLIAM G. PETTY
                                                                  JANUARY 8, 2008
JAMIE MARTINEZ,
 DEYBIN NOEL (DAVID) ORTIZ GOMEZ,
 DANNY L. METCALF
 d/b/a DANNY L. METCALF CONSTRUCTION
 AND UNINSURED EMPLOYER’S FUND

             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                John H. Carstens (Melissa A. Zeller; Jordan Coyne & Savitz, L.L.P.,
                on briefs), for appellant.

                Raul J. Romero, III, for appellee Jamie Martinez.

                No brief or argument for appellees Deybin Noel (David) Ortiz Gomez,
                Danny L. Metcalf d/b/a Danny L. Metcalf Construction and
                Uninsured Employer’s Fund.


       American Zurich Insurance Company (carrier) appeals the Workers’ Compensation

Commission’s award of benefits to Jamie Martinez (claimant). While carrier presented several

issues on appeal, we address only two issues, which are dispositive of this case. These issues are

(1) “whether the full commission erred as a matter of law in ruling that the claimant had

established a mutual mistake of fact or other legal basis for vacating Deputy Commissioner

Nevin’s September 17, 2002 opinion”; and (2) “whether the full commission erred in entering

any award in this matter because claimant’s claims were barred by the doctrine of res judicata

and/or collateral estoppel?”

       On review, we reverse the commission’s decision.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

       On appeal from a decision of the commission, “we view the evidence in the light most

favorable to the party prevailing below” and grant that party the benefit of all reasonable

inferences. Tomes v. James City (County of) Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312,

315 (2002); see also Grayson (County of) Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d

505, 506 (2002). On September 26, 2001, claimant injured his right forearm, right thumb, and

right index finger while operating a radial saw at a construction site. On October 5, 2001, he

filed a claim for benefits seeking an award of lifetime medical costs for the injuries and

compensation for temporary total disability. In the claim he alleged that Danny L. Metcalf

Construction (Metcalf) was his employer.

       A hearing on the claim for benefits was held before a deputy commissioner on September

9, 2001. The parties stipulated that claimant experienced an injury by accident arising out of and

in the course of employment. The sole issue was whether Metcalf was claimant’s employer. 1

After hearing the evidence, the deputy commissioner concluded, “claimant failed to carry his

burden of proving that he was Metcalf’s employee at the time of his injury.” In reaching this

decision, he made these findings:

               Although claimant was obviously working for somebody on
               September 26, 2001, we cannot determine from the record
               evidence for whom he was working. Metcalf denied employing
               him, and testified that he had never seen the claimant before the
               hearing. We also note the conspicuous absence of “Ortiz[,]” the
               individual who actually hired the claimant, paid him, and
               apparently supervised his day-to-day activities. We further note
               Metcalf’s testimony that he did not employ or even know anyone
               known as Ortiz. The claimant also testified that at the time of his
               injury, he was working on a multi-level structure that he
               characterized as an apartment building. The record contains no
               evidence that Metcalf was doing any construction work on such a

       1
          Claimant alleged that Danny Metcalf employed him. Claimant testified that he was
hired after he told his friend, “David Ortiz” that he needed a job and Ortiz spoke with Metcalf,
who then agreed to hire him.
                                                 -2-
               building at the time of the claimant’s injury. Additionally, the
               claimant did not even know where in Virginia he was injured.
               Although some actual documentation indicating that Metcalf paid
               Sanchez by check might have persuaded us that an
               employer/employee relationship existed among these individuals,
               no such documentation is in the record.

       This decision was not appealed.

       On November 13, 2002, claimant filed a second claim for benefits arising from the

accident of September 26, 2001. In the second claim, however, claimant alleged that his

employer was “David Ortiz Gomez.” After filing the second claim, claimant attempted to join

Metcalf to the second claim as either a statutory or direct employer. Furthermore, on May 5,

2004, claimant filed a motion to vacate the deputy commissioner’s opinion based upon “mutual

mistake and/or fraud.” 2

       On September 22, 2004, the deputy commissioner held a hearing on claimant’s motion to

vacate and the second claim for benefits. After hearing testimony, the deputy commissioner

determined that while claimant was an employee of Metcalf at the time of his injury, his claim

was barred by res judicata. 3 Moreover, she ruled there was no basis upon which to vacate the

September 17, 2002 opinion because there was no mutual mistake. In reaching this decision she

observed:

               At the initial hearing, it is hardly surprising that Mr. Metcalf
               testified as he did as he did not know a Mr. Ortiz, his records in no
               manner indicated any relationship with a Mr. Ortiz and he did not
               construct apartment buildings at all, no less in an unidentified




       2
         At the hearing, claimant pursued relief solely on the basis of a mutual mistake. He did
not pursue a fraud claim.
       3
        In addition, the claim against Deybin Noel Ortiz Gomez, a/k/a David Ortiz Gomez was
dismissed.

                                               -3-
               location, all alleged by the claimant at the hearing. Thus, he was in
               no manner mistaken in his testimony, while the claimant was in
               his.

Claimant appealed.

       On December 19, 2005, the full commission vacated the September 17, 2002 opinion4

and reversed the finding that claimant’s claim against employer Metcalf was barred by res

judicata. The commission concluded that the misidentification of Deybin Noel Ortiz Gomez

constituted a mutual mistake of fact. Based upon the commission’s implied power to vacate an

award procured through mistake, the commission set aside the original opinion. The commission

remanded the matter to the deputy commissioner to resolve issues of permanency, average

weekly wage, and any other pending issues. 5

       On remand, the deputy commissioner issued an opinion on May 25, 2006. Claimant was

granted an award against employer Metcalf and carrier for temporary total disability at the

weekly rate of $240 from September 26, 2001 through December 14, 2001 and for a 20%

permanent impairment of the right arm at the weekly rate of $240 beginning May 1, 2003 and

continuing for 40 weeks. Claimant was also awarded causally related medical attention for as

long as necessary under Code § 65.2-603. Carrier requested review by the full commission. On

February 2, 2007, the full commission affirmed the May 25, 2006 opinion. This appeal ensued.

                                          II. ANALYSIS

       On appeal, we defer to the commission in its role as fact finder. VFP, Inc. v. Shepherd,

39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002). “If supported by credible evidence, the


       4
       The opinion contains what appears to be a typographical error by referencing a
September 22, 2002 opinion. The original opinion at issue was entered on September 17, 2002.
       5
         Carrier filed a notice of appeal from the opinion and award of the Virginia Workers’
Compensation Commission entered on December 19, 2005. On February 27, 2006, we
dismissed the appeal without prejudice because the commission’s order was interlocutory and
not determinable of the controversy.
                                                -4-
factual findings of the commission are binding on appeal.” Tomes, 39 Va. App. at 430, 573

S.E.2d at 315 (citations omitted).

       However, the principal issue raised by carrier in this appeal relates not to the factual

findings of the commission, but to its application of the law to those findings. Therefore, this

issue is a mixed question of law and fact. Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60,

68, 455 S.E.2d 267, 271 (1995). “‘[C]onclusions of the Commission upon questions of law, or

mixed questions of law and fact, are not binding on [appeal].’” City of Waynesboro v. Harter, 1

Va. App. 265, 269, 337 S.E.2d 901, 903 (1985) (quoting Brown v. Fox, 189 Va. 509, 517, 54

S.E.2d 109, 113 (1949)). Accordingly, we review de novo the commissioner’s application of the

law to those findings. Roanoke Belt, 20 Va. App. at 68, 455 S.E.2d at 235.

       Carrier argues that the full commission erred as a matter of law in ruling that the claimant

established a mutual mistake of fact or other legal basis for vacating the deputy commissioner’s

September 17, 2002 opinion. Carrier asserts a two-fold argument: (1) the commission erred in

applying “mutual mistake of fact” principles in this case absent a contract or agreement between

the parties; and (2) there is no credible evidence in the record to support the commission’s

finding that a mutual mistake of fact existed. Assuming, without deciding, that the commission

has the authority to vacate an award on the ground of mistake in the absence of a contract or

agreement, we conclude that the mistake of fact relied upon must be mutual. Because we find

that the claimant’s mistake in this case did not constitute a mutual mistake of fact, we reverse.

       The General Assembly has granted “the Commission the power and authority not only to

make and enforce its awards, but to protect itself and its awards from fraud, imposition, and

mistake.” Collins v. Dep’t of Alcoholic Bev. Con., 21 Va. App. 671, 679-80, 467 S.E.2d 279,

283, aff’d on rehearing en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996). Virginia’s case law

further clarifies that the commission has the “implied power, incidental to those expressly

                                                -5-
granted, to entertain and hear an application, seasonably presented, to vacate and set aside an

award, procured through fraud or mistake.” Harris v. Diamond Constr. Co., 184 Va. 711, 721,

36 S.E.2d 573, 578 (1946).

       When exercising its power to set aside a final award on the ground of fraud or mistake,

the commission applies the same rules applicable to a proceeding to annul a final judgment at

law. See Williamsburg v. Altizer, 220 Va. 9, 13, 255 S.E.2d 536, 538 (1979). To prevail, the

party seeking relief must prove fraud or mutual mistake of fact by clear and convincing evidence.

J & D Masonry, Inc. v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 887, 889 (1982) (citations

omitted). Absent proof of fraud, a unilateral mistake of fact on the part of the moving party does

not warrant relief. Id. “In determining whether a mutual mistake of fact existed at the time of

the agreement, the inquiry is . . . whether each party held the same mistaken belief with respect to

a material fact at the time the agreement was executed.” Collins, 21 Va. App. at 681, 467 S.E.2d

at 283 (emphasis added). Therefore, a unilateral mistake of fact, unaccompanied by fraud, is not

sufficient to set aside a final award. J & D Masonry, 224 Va. at 295, 295 S.E.2d at 889 (“[T]he

evidence proves merely a unilateral mistake of fact by the carrier unaccompanied by any fraud

attributable to the claimant. Under such circumstances, relief will not be granted.”). 6

       In its December 19, 2005 opinion, the commission vacated the 2002 opinion based on a

mutual mistake of identification. The commission reasoned that “[n]either man [claimant nor

employer] provided sufficient information about Ortiz/Gomez to result in a meeting of the minds

between the two.” The commission relied upon the rule of law set forth in Harris, 184 Va. at

721, 36 S.E.2d at 578, to entertain and hear the application. Id.




       6
         We note that in Collins, we stated, “[i]t is immaterial whether the mistake of fact is
mutual or unilateral . . . .” 21 Va. App. at 680, 467 S.E.2d at 283. However, the mistake in
Collins was mutual; therefore, we consider the quoted language from Collins dicta.
                                                 -6-
       Carrier argues that there is no credible evidence in the record to support the commission’s

finding that a mutual mistake of fact existed. When claimant filed the motion to vacate the

September 2002 opinion, he had the burden of proving by clear and convincing evidence that he

and employer held the same mistaken belief related to a material fact. Collins, 21 Va. App. at

681, 467 S.E.2d at 283. We find no evidence in the record supporting the commission’s finding

that they shared the same mistaken belief about the identity of claimant’s superintendent.

       When claimant testified at the initial hearing he identified Metcalf as his employer and

Ortiz as his supervisor. Claimant did not subpoena Ortiz or make arrangements for his presence

at the hearing. Further, he never referred to an individual named “Gomez.” His testimony

revealed that at the time of his accident he was working “somewhere” in Virginia on a

“six-story” apartment building. Employer testified that he builds and sells homes and town

homes and had never built apartments.

       When employer was asked whether Mr. Ortiz worked for him, he testified, “[h]e didn’t

work for me.” Employer further added, “[h]e quite possibly could have [worked for], one of my

subs.” Claimant’s attorney failed to question employer specifically about the identity of his

subcontractors. Thus, given claimant’s incomplete and inaccurate testimony concerning the

location and job site, there was no reasonable means for employer to determine that claimant had

misidentified Gomez as Ortiz. 7

       At trial, claimant “had the burden of producing evidence that an employment relationship

existed between him and [Metcalf].” Craddock Moving & Storage Co. v. Settles, 16 Va. App. 1,


       7
          Even though employer’s testimony was based in part on inaccurate information
provided by claimant, this fact alone does not necessarily give rise to a finding of a mutual
mistake of fact. See McCarthy Electric Co. v. Foster, 17 Va. App. 344, 346, 437 S.E.2d 246,
247 (1993) (The commission’s failure to notify employer’s attorney of a ruling was not the type
of mistake in the procurement of an award that would justify the commission to retain
jurisdiction.).

                                               -7-
3, 427 S.E.2d 428, 430 (1993), aff’d, 247 Va. 165, 440 S.E.2d 613 (1994) (per curiam). When

he testified, however, he provided inaccurate information and failed to meet his burden of proof.

A careful review of the record demonstrates that claimant’s erroneous testimony was not based

so much on mistake, as it was on a failure to properly discover information prior to the first

hearing.

       Although claimant asserts he did not learn of the identity of Ortiz/Gomez until after the

first hearing, claimant could have learned this information through reasonable investigation, such

as by review of his own medical records in this case. In those records, “Debin Gomez” is

provided as his contact, along with a telephone number. Claimant’s failure to obtain the full or

correct name of Ortiz/Gomez to pursue his original claim “is simply a case of inadequate,

incomplete, and deficient investigation by the [claimant]; it is a failure promptly to discover facts

that were available to [claimant] . . . .” J & D Masonry, 224 Va. at 296, 295 S.E.2d at 889.

       While claimant was clearly mistaken in his testimony at the first hearing, employer was

not. Simply put, claimant failed to properly investigate and pose the correct questions necessary

to sustain his burden of proof at trial. This type of unilateral mistake does not warrant relief. Id.;

see also Foreman v. Clement, 139 Va. 70, 80-81, 123 S.E. 336, 339 (1924) (“[A] party will not

be relieved from his obligation . . . where the mistake of fact was not mutual; unless such

mistake was induced by the fraud or inequitable conduct of the obligee.”).

                                            Res Judicata

       Carrier argues the commission erred in entering any award in this case because

claimant’s claims were barred by the doctrine of res judicata or collateral estoppel. Generally,

“res judicata precludes the re-litigation of a claim or issue once a final determination on the

merits has been reached.” K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299,

302 (1985).

                                                -8-
       Therefore, absent fraud or mistake, “the decisions of the Commission or its deputy

commissioners from which no party seeks timely review are binding upon the Commission.” Id.

“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 a tribunal in a prior cause of

action.” Fodi’s v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998).

       In the matter before us, claimant’s first and second claims involved the issue of whether

Metcalf was claimant’s employer. Claimant failed to carry his burden of proof in the first action,

and his claim was denied. He did not appeal this ruling. Therefore, claimant’s second claim

against Metcalf, which raises the same issue as the first claim, is barred by the doctrine of res

judicata unless the September 17, 2002 opinion is vacated. Rusty’s Welding Serv., Inc. v.

Gibson, 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc).

       Because the commission erred in vacating the September 17, 2002 opinion, claimant’s

second claim against Metcalf is barred by the doctrine of res judicata.

                                         III. CONCLUSION

       For these reasons, we conclude that the commission erred as a matter of law in

determining that the claimant established a mutual mistake of fact and in setting aside and

vacating the September 17, 2002 opinion. Because our conclusion of these issues is dispositive,

we need not reach the other questions presented by carrier in this appeal. Accordingly, the

decision of the commission is reversed, and we remand this matter to the commission for further

proceedings consistent with this opinion.

                                                                                          Reversed.




                                                -9-
McClanahan, J., concurring.

       On the basis of a purported mutual mistake of fact (the identity of Ortiz/Gomez), the full

commission vacated the final, unappealed decision rendered on Martinez’s first claim—

following an adversarial proceeding—in order to allow him to relitigate the issues already

resolved in Metcalf’s favor in that decision.

       “In the exercise of its power to set aside a final award upon the ground of fraud or

mistake, the Commission applies the same rules applicable to a proceeding in equity to annul a

final judgment at law.” J & D Masonry, Inc. v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 887,

889 (1982) (citing Williamsburg v. Altizer, 220 Va. 9, 13, 255 S.E.2d 536, 538 (1979)). “[I]t is a

fundamental principle of equity jurisprudence that a litigant who files an independent action in

equity to set aside a judgment must be free of fault or neglect.” Charles v. Precision Tune, Inc.,

243 Va. 313, 318, 414 S.E.2d 831, 833 (1992) (citing National Surety Co. of New York v. State

Bank of Humboldt, 120 F. 593, 599 (8th Cir. 1903)). This principle no doubt derives from the

doctrine that such actions are “reserved for those cases of ‘injustices which, in certain instances,

are deemed sufficiently gross to demand a departure’ from rigid adherence to the doctrine of res

judicata.” United States v. Beggerly, 524 U.S. 38, 46 (1998) (quoting Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 244 (1944)).

       This is not such a case—whether or not the identity of Ortiz/Gomez is deemed a

unilateral or mutual mistake of fact as between Martinez and Metcalf. Any failure in proving

Ortiz/Gomez’s identity at the first hearing was because of Martinez’s own fault or neglect. As

such, Martinez’s failure to carry his burden of proof in that regard does not present a sufficient

basis to depart from application of the doctrine of res judicata in his second claim. The analysis

of whether a mutual mistake of fact existed is thus unnecessary.




                                                - 10 -
       For these reasons, the full commission erred in reversing the deputy commissioner’s

December 30, 2004 decision, which correctly denied Martinez’s second claim on grounds of res

judicata.




                                            - 11 -
Fitzpatrick, J., dissenting.

        Because I agree with the commission’s reasoning set forth in its December 19, 2005

opinion, I would affirm its decision that claimant proved a mutual mistake of fact by clear and

convincing evidence which established a sufficient basis upon which to vacate the September 17,

2002 opinion and reverse the deputy commissioner’s finding the claim against Metcalf was

barred by res judicata.

        In ruling that claimant sustained his burden of proving a mutual mistake of fact justifying

vacating the September 17, 2002 opinion, the commission found as follows:

                Metcalf conceded that a mistake of identification caused the
                confusion resulting in the September 17, 2002, Opinion denying
                benefits to the claimant. When identifying himself, the mystery
                man stated: “My name is Deybin Ortiz - - Deybin Noel Ortiz
                Gomez.” It is apparent from the evidence presented that some
                people know Deybin Noel Ortiz Gomez as “Mr. Ortiz” and others
                know him as “Mr. Gomez.” During the first Hearing, although
                both the claimant and Metcalf knew Deybin Noel Ortiz Gomez, the
                claimant knew him as David Ortiz, and Metcalf knew him as
                David or Deybin Gomez. Neither man provided sufficient
                information about Ortiz/Gomez to result in a meeting of the minds
                between the two. From each party’s perspective, the other was
                mistaken as to the identity of the foreman. Thus, we find that there
                was a mutual mistake of identification of Deybin Noel Ortiz
                Gomez, the foreman who provided the link between Danny L.
                Metcalf Construction and the claimant.

(Citations and footnote omitted).

        Here, when applying the proper deference to the commission’s findings, clear and

convincing credible evidence established that “each party held the same mistaken belief with

respect to a material fact . . . .” Collins, 21 Va. App. at 681, 467 S.E.2d at 283. That is, each

party was mistaken as to the identity of claimant’s supervisor/foreman on September 26, 2001,

which resulted in a denial of benefits to claimant after the initial hearing.

        At the September 9, 2002 hearing, claimant, testifying with an interpreter, identified

“Danny Metcalf” as his employer, and “David Ortiz” as his foreman, on the date of his accident,
                                                - 12 -
September 26, 2001. At that same hearing, Metcalf denied knowing or hiring claimant. Metcalf

denied “Mr. Ortiz” worked for him at that time, and stated that he did not know “Mr. Ortiz.”

       At subsequent hearings in September and October 2004, after claimant filed his motion to

vacate, claimant pointed to “Deybin Noel Ortiz Gomez” as the person he worked for on

September 26, 2001. Claimant stated that Mr. Gomez and Mr. Ortiz are the same person and that

he knew that person as “David Ortiz until now.”

       Metcalf testified that it turned out he knew “David Ortiz,” the person identified by

claimant at the first hearing as his foreman, as “David Gomez.” Metcalf stated that after the

initial hearing and after claimant filed a claim against Gomez, Metcalf “came to the conclusion

that I had made a mistake in connection with the name and everything because I didn’t know him

as Ortiz and that evidently he was the gentleman you all were referring to. . . . And that he

worked with me.” Metcalf admitted that when he testified at the first hearing, he had no idea that

when claimant referred to “David Ortiz,” he really meant “Deybin Gomez.”

       The man asserted to be claimant’s foreman on September 26, 2001 testified at the

October 2004 hearing that his name is “Deybin Gomez - - Deybin Noel Ortiz Gomez.” When

asked whether he goes by Deybin Ortiz, Deybin Gomez, both, or Deybin Ortiz Gomez, he

replied, “He always, you know, like the last name, Deybin Gomez. But a lot of people know

Deybin Ortiz.” Gomez stated that claimant knew him as “Deybin Ortiz,” and Metcalf knew him

as “Deybin Gomez.”

       Based on this record, credible evidence established that at the time of the initial hearing,

through no fault of his own, claimant did not know his foreman/supervisor’s correct name,

“Deybin Noel Ortiz Gomez.” Claimant knew his foreman by one name, “David Ortiz,” and

Metcalf knew that same person by another name, “David Gomez,” neither of which was the

foreman’s actual correct given name. At the initial hearing, claimant and Metcalf each held a

                                               - 13 -
mistaken belief with respect to a material fact, that is, Deybin Noel Ortiz Gomez’s name. That

mutual mistake resulted in a denial of benefits to claimant after the first hearing. As we stated in

Collins, “[w]ithin the principles established by statutes and the Supreme Court decisions, the

commission has ‘“jurisdiction to do full and complete justice in each case.”’ Justice is not

attained by failing to correct obvious mistakes or declining to place the parties in positions which

are in accord with the Act.” Id. at 681, 467 S.E.2d at 283-84 (citations omitted). Accordingly, I

would affirm the commission’s exercise of its implied power to vacate or set aside the September

17, 2002 opinion, procured through mistake.




                                               - 14 -
