Opinion
Record No. 0787-93-4
September 7, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Charles P. Monroe; Friedlander, Misler, Friedlander, Sloan Herz, on brief), for appellants. Appellants submitting on brief.
(Christopher Paul Schewe, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Becon Services Corporation ("Becon") appeals from a decision of the Workers' Compensation Commission finding that Randolph Robinson established a compensable change in condition and awarding him benefits from December 9, 1991. Becon contends that the commission erred in finding that Robinson established a change in condition within two years of the date of the last payment of compensation (August 23, 1990), thereby preserving his claim under § 65.2-708. Specifically, Becon argues that (1) the commission's September 18, 1990 opinion, as it pertains to the issue of causal relationship, had res judicata effect and is binding on any subsequent proceedings; and (2) the commission erred in excluding from its consideration Dr. Baig's reports which came into existence prior to August 23, 1990. Finding no error, we affirm.
On appellate review, we must construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Robinson sustained a compensable injury to his lower back while in the course of his employment with Becon on April 13, 1990. Robinson became disabled on May 3, 1990 and compensation was paid by agreement through August 23, 1990. Compensation was suspended as of August 23, 1990, by opinion of the commission issued on September 18, 1990, on the basis of a medical report of Dr. Robert O. Gordon, who performed a single independent medical examination of Robinson. Medical reports from the treating physician, Dr. M. Hussain Baig, relative to Robinson's condition at the time, were not filed before the commission.
On March 9, 1992, Robinson filed a change in condition application alleging continuing disability since August 24, 1990. To resolve the issue, the commission considered only those medical reports rendered since the case was last before the commission on September 18, 1990.
The commission found that the reports of Dr. Baig, dated November 26, 1990, December 10, 1990, April 25, 1991, June 20, 1991, July 5, 1991 and September 18, 1992, sufficiently established "an increase in objective findings and a worsening of Robinson's physical condition." The commission noted that "based on these findings and the claimant's unsuccessful attempt to return to work, Dr. Baig reported in September of 1992 that the claimant was totally disabled." The commission found that the evidence sufficiently met the criteria of Code § 65.2-101 to establish a change in condition and entered an award in favor of Robinson.
I.
The evidence presented supports the commission's findings that Robinson's current symptoms presented "an increase in objective findings and a worsening of [his] physical condition." Specifically, Dr. Baig's reports beginning in November 1990 note a worsening of Robinson's lower back condition and his failed attempt to return to work. On April 25, 1991, Dr. Baig specifically noted that he did not feel that Robinson would be able to return to work because Robinson's attempt to do so had resulted in an aggravation to his lower back. In his September 18, 1992 letter to Robinson's counsel, Dr. Baig opined that Robinson is totally disabled from any form of employment as a result of his injury to his back which occurred in April 1990. Dr. Baig's records are undisputed and establish a change in Robinson's condition within two years from the date upon which compensation was last paid.
The doctrine of res judicata bars a claimant "from establishing that the condition which existed at the time of the prior change of condition application was, in fact, disabling or was caused by the accident when the basis for the application is evidence that was previously available but not obtained until after the last hearing." Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 611-12, 401 S.E.2d 200, 206 (1991) (citation omitted). In its opinion dated September 18, 1990, the commission found that Robinson's then-existing symptoms, which were different from the current symptoms, at least in severity, were not related to the compensable accident. That decision was based solely on the evidence from Dr. Gordon. The decision which is the subject of this appeal is based on medical reports of Dr. Baig which came into existence after the hearing pertaining to the September 18, 1990 decision. Therefore, the commission's September 18, 1990 decision did not have ares judicata effect on the commission's later decision.
II.
"Code § 65.1-8 [now Code § 65.2-101] defines a 'change in condition' to mean 'a change in the physical condition of the employee' and is applicable only after the entry of a prior award in a compensable case." Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793, 407 S.E.2d 1, 2-3 (1991) (citation omitted). Therefore, the only evidence relevant to a change in that condition is evidence of the employee's physical condition upon which the prior award is based and later changes in his physical condition. Accordingly, the commission correctly excluded from its consideration Dr. Baig's earlier reports of the employee's physical condition before the prior award because they were not considered by the commission in reaching its September 18, 1990 decision. Dr. Baig's reports dated after September 18, 1990 sufficiently demonstrate a change in condition within two years of the date compensation was last paid.
For the reasons stated, we affirm the commission's decision.
Affirmed.