Opinion
Record No. 0397-93-1
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert J. Macbeth, Jr.; Rutter Montagna, on brief), for appellant.
(James D. McCaa; Taylor Walker, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 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 affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Wanda J. Clark contends that the commission erred in finding that the employer/insurer is not responsible for payment of medical expenses incurred by her for treatment at the NDC Medical Center by Drs. Zarine Mistry and Hinsing Steven Choi from January 27, 1989 through March 3, 1992.
The commission found that in Deputy Commissioner Dely's August 18, 1989 opinion, which was affirmed by the full commission on November 3, 1989 and by this Court on May 9, 1990, he specifically ruled that Dr. Choi was an unauthorized physician from whom Clark sought treatment of her own accord and for which the employer could not be held responsible. Moreover, the commission recognized that, in his 1989 opinion, Deputy Commissioner Dely specifically found that Dr. Stephen McCoy remained Clark's treating physician. Accordingly, the commission found that the employer could not be held responsible for the cost of the treatment rendered by Drs. Choi and Mistry between January 27, 1989 and March 3, 1993 on the grounds that Deputy Commissioner Dely's 1989 ruling on this issue, which was not reversed on review or appeal to this Court, is res judicata.
Although we do not find that res judicata is applicable to this case, the "law of the case" doctrine supports the commission's decision. The "law of the case" doctrine provides:
Where there have been two appeals in the same case, between the same parties and the facts are the same, nothing decided on the first appeal can be reexamined on a second appeal. . . . "It differs from res judicata in that the conclusiveness of the first judgment is not dependent upon finality."
American Filtrona Co. v. Hanford, 16 Va. App. ___, ___, 428 S.E.2d 511, 514 (1993) (citation omitted).
In the commission's 1989 opinion, which was affirmed by this Court in 1990, the commission established the law pertaining to whether Dr. Choi was an authorized physician and whether the employer should be held responsible for medical expenses incurred as a result of his treatment or the treatment of those to whom he referred the claimant. Thus, we cannot find as a matter of law that the commission erred in denying Clark's application, filed on July 10, 1992, seeking payment of medical expenses incurred as a result of treatment rendered by these doctors. Moreover, the record reflects that the expenses incurred by Clark due to treatment by Dr. Mistry are clearly related to her fall of January 31, 1989, which was determined by the commission in 1989, and by this Court in 1990, to be caused by a new accident. Clark's claim arising out of the January 31, 1989 fall was subsequently settled, and therefore the employer/insurer cannot be held liable for such expenses.
For the reasons stated, the commission's decision is affirmed.
Affirmed.