COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

STEVE M. HAYES 

 MEMORANDUM OPINION*

v. Record No. 1857-99-2 PER CURIAM 

 JANUARY 18, 2000 

4 E CORPORATION 

AND 

TRAVELERS CASUALTY & SURETY COMPANY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Malcolm Parks; Christopher A. Jones; 

Maloney, Huennekens, Parks, Gecker & Parsons, 

on briefs), for appellant. 

 (S. Vernon Priddy III; Sands, Anderson, 

Marks & Miller, on brief), for appellees. 

 Steve M. Hayes (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that the 

"law of the case" doctrine did not apply to save his 

November 5, 1996 claim seeking an award of permanent total 

disability benefits from the bar of the applicable statute of 

limitations.1 Upon reviewing the record and the briefs of the 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

1

 In his "Questions Presented" claimant also assigned error 

to the commission's decision to amend its September 13, 1996 

review opinion. However, claimant did not present any argument 

with respect to that question. Accordingly, we will not address 

it on appeal. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 

S.E.2d 237, 239 (1992) (statements unsupported by argument do 

not merit appellate consideration). 
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parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission’s decision. See

Rule 5A:27. 

 "The [law of the case] doctrine, 

briefly stated, is this: 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. Right 

or wrong, it is binding on both the trial 

court and the appellate court, and is not 

subject to reexamination by either. For the 

purpose of that case, though only for that 

case, the decision on the first appeal is 

law." 

American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 

S.E.2d 511, 514 (1993) (emphasis added) (quoting Steinman v. 

Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687 

(1917)). 

 In holding that the law of the case doctrine did not apply 

to save claimant's November 5, 1996 claim, which was filed more 

than three years after June 4, 1993, the correct date for which 

compensation was last paid to claimant, the commission concluded 

as follows: 

[T]he statement of the erroneous date for 

last payment, December 13, 1993, by the full 

Commission in the 1996 Review Opinion was 

not, in itself, a conclusion of law or a 

finding of fact to which the doctrine of the 

law of the case applies. The decision did 

not turn on when payments were last made and 

the erroneous statement played no role in 

the decision denying the 1994 claim. That 

decision solely was based on the finding 

that the claimant failed to prove he was 

unable to use his right hand and leg to any 
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substantial degree in gainful employment. 

Thus, the date for which the claimant was 

last paid benefits played no part in the 

viability of the 1994 claim, its omission 

would have taken nothing away, and its 

inclusion added nothing to the opinion's 

force. Thus, the law of the case doctrine 

does not apply. 

The commission also found that "[t]his conclusion applies 

equally to the Court of Appeals' erroneous statement [in its 

April 1, 1997 opinion] that the claimant's eligibility for 

temporary compensation benefits expired in 1994." We agree. 

 The date upon which compensation was last paid to claimant 

was not at issue when the 1994 claim was addressed by the 

commission or by this Court. The commission did erroneously 

refer to December 13, 1993 as being the last date for which 

claimant received compensation benefits and this Court also 

referenced benefits ending in 1994. However, these references 

did not constitute legal or factual findings decided in the 

first appeal between the parties which could not be reexamined 

by the commission when it addressed employer's statute of 

limitations defense with respect to the November 5, 1996 claim. 

 "[D]ictim of the reviewing court" or "statements casually 

made as to other portions of the case not under consideration at 

the time they are made" do not fall within the purview of the 

law of the case doctrine. Morison v. Dominion Nat'l Bank, 172 

Va. 293, 299-300, 1 S.E.2d 292, 294 (1939). Neither the statute 

of limitations nor the correctness of the date upon which 
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compensation was last paid to claimant was an issue "urged or 

considered" when the commission and this Court addressed the 

1994 claim. Id. at 300, 1 S.E.2d at 294. Thus, any reference 

to the date upon which compensation was last paid to claimant by 

the commission in its September 1996 review opinion or this 

Court in its April 1997 opinion was not conclusive and binding 

upon the parties. Accordingly, the commission did not err in 

refusing to apply the law of the case doctrine, and in finding 

that claimant's November 5, 1996 application was not timely 

filed.2

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

Affirmed.

 

 

 2

 Because our decision disposes of this appeal, we need not 

address employer's argument that the commission should have 

applied a two-year limitations period.