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Carriage House Press v. Hinson

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 2273-93-2 (Va. Ct. App. Jun. 7, 1994)

Opinion

Record No. 2273-93-2

Decided: June 7, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

S. Vernon Priddy, III (Mary Louise Kramer; Sarah Y. M. Kirby; Sands, Anderson, Marks Miller, on brief), for appellants.

Gerald G. Lutkenhaus for appellee.

Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Carriage House Press and its insurance carrier, Hartford Accident Indemnity Company (collectively "employer"), appeal the commission's October 13, 1993, award of temporary total and temporary partial disability benefits to Patricia F. Hinson (claimant). Employer argues, inter alia, that claimant is barred from receiving wage loss benefits because she failed to cure her unjustified refusal of selective employment. In addition, employer claims that the commission erred in finding claimant's request for review of the February 24, 1993, opinion sufficient to also act as a request for review of the deputy commissioner's amended opinion dated March 12, 1993. We disagree and affirm the commission's award.

BACKGROUND

As a threshold matter, we find employer's argument that claimant failed to properly preserve her objection to the deputy commissioner's amended opinion without merit. "[U]nder Rule 2(A) the commission had the discretion to hear the petition for review without a specification of each determination of fact or law, and to determine all of the issues involved in the case." Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988) (emphasis added). Therefore, we affirm the commission on this issue.

On February 28, 1990, claimant sustained a compensable back injury while working as a press operator for employer. She received a combination of temporary total and temporary partial disability benefits between March 1, 1990, and November 8, 1991. The commission suspended further wage loss benefits to claimant effective November 9, 1991, because of her unjustified refusal of employer-procured selective employment with AESOP Services (AESOP).

On April 8, 1992, claimant obtained selective employment at Pace-Marrow Corporation for a greater wage than the wage offered by AESOP. Employer agreed to claimant's cure of her prior unjustified refusal of selective employment and entered into a memorandum of agreement for an award of temporary partial disability benefits. The agreement was approved by the commission, and an award was entered on July 28, 1992, in favor of the claimant for $137.98 per week, during partial incapacity. This award was not appealed.

On August 21, 1992, claimant became unable to perform her job with Pace-Morrow because of physical limitations caused by her compensable back injury. After reviewing Pace-Marrow's description of the job claimant was performing, Dr. Kim E. Marsh, claimant's treating physician, opined that claimant could not continue to perform that job. Claimant missed work from August 21, 1992, through November 18, 1992. She procured work as a floral delivery driver for Commonwealth Gallery Florists on November 19, 1992, at a wage below that offered by AESOP or Pace-Marrow. Thereafter, upon claimant's change in condition application, the commission awarded her temporary total disability benefits for the period she missed work and temporary partial disability benefits from November 19, 1992, and continuing during her partial incapacity.

CURE OF UNJUSTIFIED REFUSAL OF SELECTIVE EMPLOYMENT

The evidence proves, and employer concedes in its brief, that "[claimant], without a doubt, cured her unjustified refusal of employment at AESOP by accepting employment elsewhere." Employer argues, however, that such cure ceased upon claimant's termination of employment with Pace-Marrow. We disagree.

Claimant's benefits were suspended after her unjustified refusal of employer-procured selective employment at AESOP. Thereafter, claimant procured employment with Pace-Marrow at a wage greater than that offered by AESOP and filed a change in condition application with the commission for reinstatement of benefits based on such cure. Prior to litigating claimant's change in condition application, employer agreed to pay claimant temporary partial disability benefits based on the salary she was earning at Pace-Marrow. A supplemental memorandum of agreement was filed, claimant's change in condition application was removed from the docket, and the commission entered an award consistent with the parties' agreement. No appeal was taken from the commission's award approving the agreement, and that award became final.

We agree with the commission that its award approving the parties' agreement settled the question of whether claimant had cured her earlier unjustified refusal of employer-procured selective employment at AESOP. We conclude that res judicata bars further review of claimant's employment at AESOP. "A judicially-created doctrine, res judicata rests upon considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent the harassment of parties. 'The doctrine is firmly established in our jurisprudence and should be maintained where applicable.' " Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) (quoting Ward v. Charlton, 177 Va. 101, 115, 12 S.E.2d 791, 796 (1941) (footnote omitted)) (other citations omitted). Further, "[a]bsent . . . fraud or mistake . . . the decisions of the Commission or its deputy commissioners from which no party seeks timely review are binding upon the commission. Unless otherwise prescribed by statute, the relationship of the commission to an award is that of a court to a judgment during the term at which it is rendered." K L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). We find no evidence of fraud or mistake in the procurement of the agreement executed by the employer on May 12, 1992, and approved in an award of the commission dated July 28, 1992.

Thereafter, claimant's entitlement to temporary partial disability benefits turned on whether she was justified in leaving her employment with Pace-Marrow, and whether she adequately marketed her remaining capacity. The commission found that claimant left her job at Pace-Marrow because of her physical limitations resulting from the compensable back injury. That finding of fact is amply supported by the evidence, and is binding on this Court. See Code Sec. 65.2-706. Further, it is clear that claimant adequately marketed her remaining capacity. Accordingly, we affirm.

Affirmed.


Summaries of

Carriage House Press v. Hinson

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 2273-93-2 (Va. Ct. App. Jun. 7, 1994)
Case details for

Carriage House Press v. Hinson

Case Details

Full title:CARRIAGE HOUSE PRESS and HARTFORD ACCIDENT INDEMNITY COMPANY v. PATRICIA…

Court:Court of Appeals of Virginia. Argued at Richmond, Virginia

Date published: Jun 7, 1994

Citations

Record No. 2273-93-2 (Va. Ct. App. Jun. 7, 1994)