                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


ELIZABETH H. LEWIS
                                                MEMORANDUM OPINION*
v.   Record No. 2351-00-4                           PER CURIAM
                                                 FEBRUARY 6, 2001
HAMBURGER HAMLET, INC. AND
 TRANSPORTATION INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Hilia Elizabeth Lewis, pro se, on brief).

             (Heather K. Bardot; Trichilo, Bancroft,
             McGavin, Horvath & Judkins, P.C., on brief),
             for appellees.


     Elizabeth H. Lewis (claimant) contends that the Workers'

Compensation Commission erred in finding that (1) her June 22,

1999 claim seeking an award of temporary total disability

("TTD") benefits and permanent partial disability ("PPD")

benefits was barred by the doctrine of res judicata; (2) her

June 22, 1999 claim for reimbursement of medical expenses

related to medical treatment of her right shoulder and back was

barred by the doctrine of res judicata; (3) she failed to prove

that any treatment she may have received for her right ankle was

causally related to her compensable September 23, 1992 injury by

accident; and (4) she was not entitled to tuition reimbursement.


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

                     I. and II.    Res Judicata

     Res judicata applies "where there is a valid, personal

judgment obtained by a defendant on the merits of an action.

The judgment bars relitigation of the same cause of action, or

any part thereof which could have been litigated between the

same parties and their privies."    K & L Trucking Co. v. Thurber,

1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).

     In a July 1, 1994 opinion, Deputy Commissioner Cummins Doan

found that claimant's shoulder problems were not causally

related to her compensable injury by accident.      The deputy

commissioner also found that claimant was not disabled from

November 15, 1992 to May 21, 1993 and from June 6, 1993 and

continuing.   That opinion was affirmed by the commission and

this Court.   Likewise, in a May 15, 1997 opinion, Deputy

Commissioner Cummins found that any claim for additional TTD

benefits due to problems related to claimant's shoulders and

back, for various periods through January 3, 1997, was

time-barred by Code § 65.2-708, as the claim was filed well

beyond two years from the last date for which compensation was

paid pursuant to an award.   The deputy commissioner also ruled

that any medical treatment related to claimant's shoulders and


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her back was not causally related to her compensable injury by

accident.   The commission affirmed that opinion.

     At the hearing held on April 5, 2000, on claimant's June

22, 1999 claim, she sought TTD benefits from September 23, 1992

through November 1992; from May 1993 through March 1996; and

from January 1999 to present, PPD benefits, and medical benefits

related to her right shoulder and lower back.    Because valid

final judgments existed prior to the April 5, 2000 hearing,

finding that claimant's back condition after December 1994 and

her shoulder problems were not causally related to her

compensable injury by accident and that any further wage claims

related to those conditions were time-barred by Code § 65.2-708,

the commission did not err in ruling that claimant could not

seek to relitigate those issues.    Thus, the commission properly

denied claimant's June 22, 1999 claim for TTD, PPD, and medical

expenses related to her right shoulder and back as barred by the

doctrine of res judicata.

                III.   Right Ankle Medical Treatment

     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, 788 (1990).

Unless we can say as a matter of law that claimant's evidence

sustained her burden of proof, the commission's findings are




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binding and conclusive upon us.   See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In ruling that claimant failed to prove that she was

entitled to reimbursement for medical expenses related to

treatment of her right ankle, the commission affirmed the deputy

commissioner's opinion, in which she found as follows:

           [T]he right ankle complaints for which the
           claimant now seeks treatment are unrelated
           to the injury by accident. It appears from
           the medical evidence that, until her most
           recent treatment, the claimant sought no
           treatment for right ankle complaints since
           November 1992. We find that entirely too
           much time has elapsed for there to be any
           reasonable causal nexus between the injury
           by accident and her present right ankle
           complaints. Therefore, we conclude that the
           right ankle complaints and treatment are
           unrelated and unnecessary.

     The commission's findings are amply supported by the

record.   In light of the more than seven-year gap between

claimant's compensable injury by accident and the treatment for

the right ankle condition, we cannot say as a matter of law that

claimant's evidence sustained her burden of proof.

                    IV.   Tuition Reimbursement

     The Act does not provide for tuition reimbursement where a

claimant alleges that he or she has been required to drop

classes due to pain caused by an industrial injury.

Accordingly, the commission did not err in denying claimant's

request for tuition reimbursement under these circumstances.


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

                                                  Affirmed.




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