VIRGINIA

VIRGINIA: IN THE WORKERS' COMPENSATION COMMISSION Affirmed by the Court of Appeals at 32 Va. App. 77, 526 S.E.2d 304 (2000) 03/26/99 Opinion by the FULL COMMISSION DEREK M. KRAMER, Claimant v. VWC File No. 185-11-23 SANTA'S HELPERS CHIMNEY SWEEPS, Employer - NO RECORD OF INSURANCE - Derek M. Kramer 6819 Brimstone Lane Fairfax Station, Virginia 22039 Appearing pro se Jeffrey Stuart Santa's Helper Chimney Sweeps 7841 Huntsman Blvd. #600 Springfield, Virginia 22153 Employer, appearing pro se.1 Gaye Lynn Taxey, Esquire Assistant Attorney General 3975 Fair Ridge Drive, Second Floor Fairfax, Virginia 22033 for the Uninsured Employer's Fund. REVIEW on the record by Commissioner Diamond, Commissioner Tarr, and Commissioner Dudley at Richmond, Virginia. In proceedings conducted prior to the hearing of July 14, 1998, the employer was represented by Charles Monroe, Esquire. 1 VWC File No. 185-11-23 This case is before the Full Commission on a Request for Review filed by the Uninsured Employer's Fund ("Fund"). A brief summary of the procedural history will assist in explaining the issues that will be considered in this Review Opinion. On April 16, 1997, the claimant filed a Claim for Benefits alleging an injury by accident resulting from electrical burns to the hands and feet sustained on May 15, 1995. In that claim the claimant sought an award of temporary total disability benefits from May 15, 1995, through August 31, 1995, medical benefits and an award of permanent partial disability benefits. In an Opinion issued October 3, 1997, the Deputy Commissioner found that the employer had three or more employees regularly in service in May 1995, and that the claimant sustained a compensable injury while earning a pre-injury average weekly wage of $360.00. Both the Fund and the employer filed timely Requests for Review. In an Opinion issued April 14, 1998, the Full Commission affirmed the Deputy Commissioner's findings regarding the status of the employer under the Act, amended the claimant's pre-injury average weekly wage to $320.00, and remanded the case to the Deputy Commissioner for findings on the issue of permanency. On remand, the Deputy Commissioner found that the claimant had reached maximum medical improvement and entered an Award for 34% permanent partial disability benefits to both feet respectively. The Fund subsequently filed a Request for Review raising the following issues: (1) whether the claimant had reached maximum medical improvement; (2) whether the Full Commission had erred in finding that the employer had three or more employees regularly in service; (3) whether the claimant was an employee at the time of injury; and, (4) whether the Full Commission erred in 2 VWC File No. calculating the claimant's pre-injury average weekly wage. 185-11-23 As to the latter three issues, which were decided in the Commission's April 14, 1998, Opinion, the Fund relies on Uninsured Employer's Fund v. Harper, 26 Va. App. 522, 495 S.E.2d 540 (1998). In that case, the Commission found that the employer was subject to the Act and remanded the matter for consideration of the merits of the case. The employer, but not the Fund appealed that determination. However, the employer's appeal was dismissed for technical reasons. Thereafter, the Deputy Commissioner found that the claim was compensable and entered an Award. The Fund filed a Request for Review of this decision on the jurisdiction issue and on the merits of the claim. In a February 18, 1997 Opinion, the Commission refused to address the jurisdiction issue, finding that "[t]he issue of jurisdiction, once decided and not perfected on appeal, is therefore res judicata." In so ruling, we referred to employer's appeal, which this Court had dismissed. We affirmed the Deputy Commissioner's finding that claimant proved an injury by accident arising out of and in the course of her employment and the findings with respect to disability. The Fund appealed, inter alia, the issue of jurisdiction and the Commission's application of the doctrine of res judicata. The Court of Appeals held that the Commission erred in applying res judicata in that instance. The Commission is a creature of statute and the Act is in derogation of the common law. As such, the powers of the Commission are defined solely by the Act. Virginia Code § 65.2-700 vests the Commission with jurisdiction to determine all questions "arising under" the Virginia Workers' Compensation Act. This grant of subject matter jurisdiction includes the authority of the 3 VWC File No. 185-11-23 Commission to enforce its orders and to resolve coverage and payment disputes. The jurisdiction is not unlimited, however. For instance, the Commission retains authority to decide questions between the insurer and the employer or another insurer only insofar as they affect the rights of an injured employee. When the rights of the claimant are not at stake, the Act clearly leaves the litigants to their common law remedies. See Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 121, 348 S.E.2d 416, 419 (1986). The Deputy Commissioner retains jurisdiction over a claim for twenty days after entry of an Award or issuance of an Opinion, unless the Award or Opinion is interlocutory. If no Request for Review is filed within twenty days, pursuant to Virginia Code § 65.2-705, the Commission retains no further jurisdiction over that particular issue except insofar as is required to enforce that order. This lends finality to the proceeding and serves the public policy of providing certainty to the parties as to their respective rights and duties under the Act. Likewise, any Commission Award or final order that is not timely appealed is conclusive. A final judgment or decree, affirmed by an appellate court or not appealed within the time provided, creates in the party in whose favor it works a vested right. Judgment depends on no future act, contingency, or decision to make it secure. See L. F. Bain & Son v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942). Virginia Code § 65.2-706 provides in pertinent part that A. The award of the Commission, as provided in § 65.2-704, if not reviewed in due time, or an award of the Commission upon such review, as provided in § 65.2-705, shall be conclusive and binding as to all questions of fact. No appeal shall be taken from the decision of one Commissioner until a review of the case has been had before 4 VWC File No. the full Commission, as provided in § 65.2-705, and an award entered by it. Appeals shall lie from such award to the Court of Appeals in the manner provided in the Rules of the Supreme Court. B. The notice of appeal shall be filed with the clerk of the Commission within thirty days from the date of such award or within thirty days after receipt of notice to be sent by registered or certified mail of such award. . . . As the Court held in Harper, '[T]he words 'such award' . . . [contained in § 65.2-706] mean final award, that is, a decision of the . . . Commission granting or denying, or changing or refusing to change, some benefit payable or allowable under the . . . Act and leaving nothing to be done except to superintend ministerially the execution of the award.' Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985). The commission's determination of the jurisdiction issue in its March 14, 1996 opinion and its subsequent remand of the case to the deputy commissioner for a determination of the merits of the claim for benefits did not constitute a final award appealable to this Court. See id. Moreover, the fact that employer appealed the commission's decision to this Court and elected not to pursue that appeal, which was dismissed for want of prosecution, did not render the commission's decision final and did not deprive the Fund of its right to appeal the jurisdiction issue to this Court. Furthermore, the March 14, 1996 opinion did not adjudicate 'the principles of a cause.' Code § 17-116.05(4). The commission merely held that it had jurisdiction over the employer, and it remanded the case to the deputy commissioner for further proceedings. The merits of the case had not been addressed, and the opinion was interlocutory and not determinable of the controversy. See generally Polumbo v. Polumbo, 13 Va. App. 306, 411 S.E.2d 229 (1991); Weisenbaum v. Weisenbaum, 12 Va. App. 899, 407 S.E.2d 37 (1991); Pinkard v. Pinkard, 12 Va. App. 848, 407 S.E.2d 339 (1991). Accordingly, this Court was without jurisdiction to entertain an appeal of the March 14, 1996 opinion. [footnote omitted]. Furthermore, the Fund was not required to join the employer in its appeal at the risk of losing its right to appeal the jurisdiction issue when a final order was entered. The Fund was not required to join in a futile appeal of an interlocutory order. 185-11-23 5 VWC File No. (Emphasis added). 185-11-23 The holding in Harper is distinguishable from the case at bar. In Harper, the matter came before the Full Commission only on the threshold issue of whether the Commission had jurisdiction. After finding in the affirmative, the case was remanded to the Deputy Commissioner for findings on the merits of the claimant's Claim for Benefits. That primary finding of jurisdiction was interlocutory in nature and did not decide the merits of the claim being pursued by the claimant. It was not an "Award" of the Commission because it did not constitute a "grant or denial of benefits or other relief under this title or any rule adopted pursuant thereto." Virginia Code § 65.2-101. Conversely, here the Deputy Commissioner in her Opinion of October 3, 1997, made findings regarding the status of the claimant and employer under the Act, calculated the claimant's pre-injury average weekly wage, and found that the claimant sustained a compensable injury on May 15, 1995. Pursuant to those findings she entered an Award for both wage loss benefits and medical benefits. The jurisdictional and pre-injury average weekly wage issues were brought before the Full Commission, and the Commission affirmed the findings below. The affirmation was an Award and final order as to those issues considered by both the Deputy Commissioner and Full Commission, and was not an interlocutory decision. This triggered the thirty-day period for appeal. Once the thirty-day appeal period in § 65.2-706 expired, the Commission retained jurisdiction to decide only the issue that was remanded to the hearing officer, i.e., the issue of permanency. The doctrine of res judicata precludes relitigation of the same cause of action, or any part 6 VWC File No. 185-11-23 thereof, which were or could have been litigated between the same parties and their privies. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974). See also Flora, Flora & Montague, Inc. v. Saunders, 235 Va. 306, 310, 367 S.E.2d 493, 495 (1988); Brown v. Haley, 233 Va. 210, 215, 355 S.E.2d 563, 567 (1987); Worrie v. Boze, 198 Va. 533, 537-38, 95 S.E.2d 192, 196-97 (1956), aff'd on reh'g, 198 Va. 891, 96 S.E.2d 799 (1957). "'[R]es judicata is a judicially created doctrine resting upon public policy considerations which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent harassment of parties.' . . . '[T]he doctrine is firmly established in our jurisprudence and should be maintained where applicable.'" Childress v. Beatrice Pocahontas Co., 6 Va. App. 88, 93, 366 S.E.2d 722, 725 (1988) (quoting K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)). Four elements must be present before res judicata can be asserted to bar a subsequent proceeding: "(1) identity of the remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality of the persons for or against whom the claim is made." Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986). See also Mowry v. City of Virginia Beach, 198 Va. 205, 211, 93 S.E.2d 323, 327 (1956). The determination of the status of parties as employee and employer under the Act is jurisdictional in nature. As the Court of Appeals held in Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 365 S.E. 2d. 782 (1988), a party can raise the issue of subject matter jurisdiction for the first time at any point in the proceeding. In that case, the employer raised for the first time on appeal the issue of whether the claimant's claim was time barred. 7 VWC File No. 185-11-23 In East v. Piedmont Manufacturing Company, VWC File No. 152-34-77 (June 4, 1996), aff'd sub nom. Piedmont Manufacturing Company, et al. v. East, Record No. 1546-96-3 (Va. App. February 25, 1997), the Commission held that "[w]hile it is true that the question of subject matter jurisdiction may be raised at any time, the principle of res judicata commands that the defense may be presented and decided only once." That holding was affirmed on appeal. The issues of whether Santa's Helper Chimney Sweeps is an "Employer" under the Act, and the claimant's status under the Act were decided in the Commission's Opinion of April 14, 1998. No timely appeal of that final, non-interlocutory, order was noted by any party. Therefore, that portion of the Opinion, as well as the findings regarding the claimant's pre-injury average weekly wage, are binding on the parties. We next consider whether the claimant has met his burden of proving entitlement to permanent partial benefits. We find he has. To establish entitlement to permanent partial disability benefits, the claimant must prove by a preponderance of the evidence that he has reached maximum medical improvement and has a ratable disability to a scheduled member. Cafaro Const. Co. v. Strother, 15 Va. App. 656, 426 S.E.2d 489 (1993); Washington Metropolitan Area Transit Authority v. Rogers, 17 Va. App. 657, 440 S.E.2d 142 (1994). To qualify for an award for permanency, the claimant must present evidence from which the Commission can rate or quantify the loss of a member. Cafaro, supra. The record reflects that the claimant suffered electrical burn to his hands and feet on May 15, 1995, when an aluminum ladder came in contact with a live electrical wire. He initially received inpatient treatment at Washington Hospital Center and then underwent a series of skin 8 VWC File No. grafts and excision of the burn areas on June 16, 1995. 185-11-23 Thereafter the claimant remained under the care of Dr. Marion H. Jordan, Director of the Burn/Trauma Division of Washington Hospital Center. On August 7, 1996, Dr. Jordan evaluated the claimant relative to maturation of the scar tissue. She noted minimal visible residual scarring on the palmar surface and small areas of linear scar with contracture but not loss of range of motion. Dr. Jordan also found the presence of residual scarring and fibrosis on the lateral aspects of the feet which "are symptomatic with hypertrophic callous." She concluded that the scarring was mature. However, she discussed with the claimant "the prospects of surgical revision/reconstruction to improve the problems." Dr. Jordan wrote that "there is mild limitation in the activities of daily living due to the sensitive scars and their location over pressure points on lateral feet surfaces." She assigned a 5% permanency rating to the whole person. On July 10, 1998, Dr. Jordan reevaluated the claimant, again assigning a 5% permanency rating to the whole person. She further opined that "operations are not likely to improve the condition. In a letter dated September 1, 1998, Dr. Jordan wrote that the claimant has painful calluses and scars on both feet and both surfaces "overlying the great toe metatarsophalangeal joint and little toe metatarsophalangeal joint of each foot." Utilizing the AMA Guide to Permanent Impairment, 4th Ed., she assigned a 17% permanency rating of the foot for each joint affected. This yielded a 34% permanency rating to each foot. At the hearing held on July 14, 1998, in which no appearance was entered by the Fund, the claimant testified that he experienced pain in both feet, primarily the right foot, from scars and calluses due to the work injury. As a result he cannot wear certain types of shoes for extended 9 VWC File No. 185-11-23 periods. While his ability to walk is not significantly impaired, he does experience discomfort when wearing certain types of shoes after only a few hours. If he attempts to stand for prolonged periods he experiences discomfort and pain in the feet. The claimant testified that he is affected in his ability to work only because of the pain and discomfort attendant in standing for prolonged periods. The Deputy Commissioner viewed the scar at the hearing. In her Opinion, the Deputy Commissioner found that the claimant had reached maximum medical improvement, based on Dr. Jordan's statement that surgery would not improve the claimant's condition. We agree. While it is preferable that a health care provider render an explicit opinion regarding whether an injured employee has reached maximum medical improvement, the Commission can draw reasonable inferences from statements made by the physician. In August 1996, Dr. Jordan evaluated the claimant and felt that his condition might improve with surgical scar revision at a later date. Later, she evaluated the claimant and amended her opinion regarding the need for surgical intervention. However, she did not amend her opinion at that time regarding the degree of permanency. We find, based on Dr. Jordan's statement that the claimant needs no further surgery, combined with her consistent opinion regarding the degree of permanency, that the claimant has reached maximum medical improvement. The Fund next argues that the Deputy Commissioner incorrectly awarded permanency benefits for the loss of use rather than for scarring and disfigurement. We disagree. A close reading of Dr. Dr. Jordan's report of September 1, 1998, as well as her previous reports, reflects that she assigned a permanency rating based on the fact that the scars were situated in such a manner 10 VWC File No. 185-11-23 that they overlaid two critical joints in each foot. The rating was based solely on "each joint affected." The Fund further argues that the Deputy Commissioner's findings of permanency were based on complaints of pain. As the Fund correctly notes, an Award for permanent partial disability benefits cannot be entered based on pain alone. Rather, there must be a showing that the pain is an inhibiting factor causing loss of use. See, e.g., Lynchburg Foundry Co.v. Tucker, Record No. 225191-3 (Va. App. September 29, 1992); Young v. Laurel Park Hardware/Auto, 70 O.I.C. 220 (1991). As we found above, Dr. Jordan's permanency rating was not based solely on complaints of pain but instead on loss of use of two joints in each foot. Regardless, the claimant's testimony establishes that he does suffer some loss of use due to pain and discomfort, in that his ability to stand for six to eight hours while working has been affected. Finally, we note that in support of his Written Statement on Review, the claimant has submitted correspondence from Dr. Jordan that is dated subsequent to the close of the record in this matter and was not before the Deputy Commissioner in the proceeding below. A record may be opened for consideration of after-discovered evidence where: (1) the evidence is obtained after the hearing; (2) it could not have been obtained prior to the hearing through the exercise of reasonable diligence; (3) it is not cumulative, corroborative or collateral; and, (4) it is material and should produce an opposite result before the Commission. Williams v. People's Life Insurance Company, 19 Va. App. 530, 452 S.E.2d 881 (1995). We find that this report could have been obtained prior to the hearing through the exercise of reasonable diligence. considered for the first time on Review. Therefore, this report will not be 11 VWC File No. 185-11-23 Based on the foregoing, the Opinion below of October 28, 1998, is AFFIRMED. APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days. c: Charles P. Monroe, Esquire 400 North Columbus Street, Suite 201 Alexandria, Virginia 22314 12