COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Beales and Senior Judge Annunziata 

Argued at Salem, Virginia 

MEIDAN, INCORPORATED AND TECHNOLOGY 

 INSURANCE COMPANY 

 OPINION BY 

v. Record No. 0067-13-3 JUDGE RANDOLPH A. BEALES 

 OCTOBER 22, 2013 

TINA LEAVELL 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 S. Vernon Priddy, III (Two Rivers Law Group, P.C., on briefs), for 

appellants. 

 Philip B. Baker (Sanzone & Baker, L.L.P., on brief), for appellee. 

 Meidan, Incorporated and its insurer (collectively, employer) appeal the decision of the 

Workers’ Compensation Commission (the commission) awarding benefits to the claimant, Tina 

Leavell. Employer claims that the commission erred in finding (1) that employer could have 

appealed the commission’s first review opinion, (2) that the commission’s findings in its first 

review opinion were the “law of the case,” and (3) that Leavell provided timely notice of the 

workplace accident that resulted in her injury. For the following reasons, we affirm the 

commission in this case. 

I. BACKGROUND

 “On appeal from the commission, we view the evidence in the light most favorable to 

[Leavell], the party prevailing below.” Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 233, 734 

S.E.2d 683, 685 (2012). The evidence here establishes that Leavell was injured at work while 

stacking cases of beer and that she told her supervisor, Nasser Abuiznied, about the injury on the 

day it occurred. Abuiznied filed an employer’s accident report with the commission on April 15, 

PUBLISHED 
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2009 that reported this injury. In her initial claim for benefits that she filed with the commission, 

Leavell alleged that her workplace injury occurred on April 9, 2009. She later sought and 

received leave to amend her claim to allege an injury date of April 2, 2009. Following an 

evidentiary hearing, the deputy commissioner found that Leavell suffered a compensable injury. 

On full commission review, employer asserted, inter alia, that Leavell’s claim should be barred 

because she failed to provide timely written notice of her injury. 

 The commission unanimously affirmed the deputy commissioner’s findings on 

November 30, 2011 (first review opinion). However, in its first review opinion, the commission 

also remanded the matter to the deputy commissioner to address whether claimant was eligible 

for disability payments – an issue that is not pertinent to this appeal. Following the deputy 

commissioner’s decision on remand, employer again sought full commission review. Pertinent 

to this appeal, employer’s written statement challenged findings from the commission’s first

review opinion – including the commission’s finding that Leavell provided timely notice of her 

injury. 

 On December 10, 2012, the commission unanimously affirmed the findings made upon 

remand by the deputy commissioner (second review opinion). The commission’s second review 

opinion rejected employer’s challenge of the commission’s findings from its first review opinion 

– noting that the first review opinion “was not appealed” and also characterizing the first review 

opinion as “the law of the case.” In particular, the commission ruled that “[i]t is the law of the 

case, as found by the November 30, 2011 Review Opinion, and we find that the claimant 

provided the employer with adequate notice” of her workplace injury. The commission entered 

an award of benefits to Leavell, and employer now appeals to this Court. 
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II. ANALYSIS

A. APPEALABILITY OF THE FIRST REVIEW OPINION

 In its first assignment of error, employer argues that the commission erred when it 

“evidently held that [employer] had the opportunity to appeal” the first review opinion to this 

Court. Employer contends that an immediate appeal to this Court was not permitted because the 

first review opinion did not actually issue a final award to Leavell. See Code § 65.2-706; see 

also Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985). 

Employer asserts that the commission suggested otherwise, pointing to language in the second 

review opinion explaining that the first review opinion “was not appealed” to this Court.1

 However, employer fails to raise any basis for relief in its first assignment of error. Even 

if the commission thought that the first review opinion could have been appealed immediately, it 

is well established that an “adverse interlocutory adjudication may be the subject of appeal from 

the final adjudication.” Smith v. Woodlawn Constr. Co., 235 Va. 424, 429, 368 S.E.2d 699, 702 

(1988); see Uninsured Employer’s Fund v. Kramer, 32 Va. App. 77, 81, 526 S.E.2d 304, 305 

(2000) (explaining that a litigant “was not required” to appeal an issue decided in the 

commission’s first opinion that remanded the matter for further factfinding by the deputy 

commissioner until the commission fully determined the merits of the case on remand). Here, 

the commission simply could not – and actually did not – find in the second review opinion that 

an appeal to this Court challenging any of the commission’s findings in its first review opinion 

had been waived or was otherwise precluded. 

 1

 Given the circumstances of this case and the nature of our decision in this opinion, we 

need not address and we decline to address whether the first review opinion was an interlocutory 

order “adjudicating the principles of a cause” under Code § 17.1-405(4)(ii). 
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B. FINDINGS OF THE FIRST REVIEW OPINION AS “LAW OF THE CASE” 

 In its second assignment of error, employer argues that the commission misapplied the 

“law of the case” doctrine to preclude the commission’s own authority to reconsider the findings 

that it made in its first review opinion. The longstanding definition of the law of the case 

doctrine in Virginia, “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 

re-examined on a second appeal.” Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 

S.E. 684, 687 (1917). Thus, “[r]ight or wrong, [the ruling in the first appeal] is binding on both 

the trial court and the appellate court, and is not subject to reexamination by either.” Id. 

 Employer asserts that the law of the case doctrine does not apply to commission 

proceedings2 because the commission is not an appellate court – but instead reviews the findings 

of its deputy commissioners in a de novo posture. Certainly, the full commission is the factfinder 

for commission proceedings. See, e.g., Haley v. Springs Global U.S., Inc., 54 Va. App. 607, 

611-12, 681 S.E.2d 62, 64 (2009). Moreover, the full commission has the specific power to 

“adjudicate issues and controversies relating thereto.” Code § 65.2-201. As the Supreme Court 

of Virginia has explained, motions for rehearing or for reconsideration “are not uncommon” in 

commission proceedings, “and the Commission may vacate the original decision pending 

consideration of such a motion.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 

S.E.2d 546, 548 (2003). Clearly, the full commission has the authority to limit or permit 

reconsideration of any issues it has already decided when it reviews the case again after 

remanding the matter to a deputy commissioner. 

 2

 Leavell notes that this Court mentioned the “law of the case” doctrine in a prior appeal 

arising from the commission, American Filtrona Co. v. Hanford, 16 Va. App. 159, 428 S.E.2d 

511 (1993). In that case, a deputy commissioner “decided to disregard” the commission’s 

specific remand instructions. Id. at 165, 428 S.E.2d at 514. Here, it is unquestioned that the 

deputy commissioner complied with the commission’s remand instructions. 
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 However, even assuming without deciding that the commission here incorrectly used the 

term “law of the case” in the second review opinion, the record fails to establish reversible error. 

Simply put, using the wrong term is not necessarily the same as committing reversible error. 

“[A]n appellate court ‘reviews judgments, not statements in opinions.’” Family Redirection 

Inst., Inc. v. Commonwealth, 61 Va. App. 765, 773, 739 S.E.2d 916, 920-21 (2013) (quoting 

California v. Rooney, 483 U.S. 307, 311 (1987)). Significantly, the commission here never 

found in its second review opinion that it lacked authority to review any of the findings from its 

first review opinion. Indeed, nothing from the second review opinion suggests or even hints at 

such a misunderstanding of the commission’s authority. 

 Instead, viewing the circumstances here in the light most favorable to Leavell (as we 

must, since she was the prevailing party below), the record establishes at most that the 

commission simply declined to reconsider the issues it decided in the first review opinion during 

the second round of full commission review. Despite its use of the term “law of the case,” the 

commission’s ruling in its second review opinion merely reflects the practical reality that the 

commission in a subsequent review opinion generally “does not review its own determinations” 

that it has already made in a first review opinion. Holly Farms Foods, Inc. v. Carter, 15 Va. App. 

29, 35, 422 S.E.2d 165, 168 (1992). 

 In addition, as Leavell asserts on appeal, language from the second review opinion 

suggests that the full commission actually did reconsider (but ultimately did not disturb) the 

finding from the first review opinion that employer challenges in this appeal. Specifically, the 

commission stated in its second review opinion that “[i]t is the law of the case, as found by the 

November 30, 2011 Review Opinion, and we find that the claimant provided the employer with 

adequate notice” of her injury. (Emphasis added). Given the commission’s use of the phrase 

“and we find,” the commission seemingly took an additional step in the second review opinion 
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and issued a finding on the adequacy of Leavell’s notice of her injury. This language from the 

commission’s second review opinion further reinforces our conclusion that the commission did 

not actually apply the “law of the case” doctrine in the manner that employer alleges. 

 Therefore, the full commission in its second review opinion either (1) declined to revisit 

the adequacy-of-notice issue decided in the first review opinion or (2) did briefly revisit that 

issue and came to the same conclusion. In either event, the record does not support employer’s 

allegation that the commission found that it lacked authority to revisit that issue. Accordingly, 

even assuming without deciding that the commission incorrectly used the term “law of the case” 

in its second review opinion, any such error in the commission’s incorrect usage of that term was 

harmless. 

C. LEAVELL’S PROVIDING NOTICE OF HER INJURY TO EMPLOYER 

 In its third assignment of error, employer argues that the commission erred in finding that 

Leavell provided adequate and timely notice of her injury – because she did not provide written

notice of her injury within thirty days of its occurrence. 

Code § 65.2-600(D) requires an employee to give written notice of 

an accident to the employer within thirty days of the occurrence of 

the accident. However, written notice is unnecessary if the 

employer has actual notice through a foreman or other superior 

officer. Newport News Shipbuilding & Dry Dock Co. v. Barnes, 

32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000); Kane Plumbing, 

Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828, 832 (1988). 

Additionally, compensation will not be barred for failure to give 

timely notice unless the employer can prove it was prejudiced by 

such lack of notice. Code § 65.2-600(E). 

Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543 S.E.2d 619, 623 (2001) 

(emphasis added); see Department of Game and Inland Fisheries v. Joyce, 147 Va. 89, 97, 136 

S.E. 651, 654 (1927). 

 Here, Leavell testified that she told Abuiznied about her injury on the day it occurred. 

Moreover, the record establishes that Abuiznied completed and filed an employer’s accident 
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report in the commission on April 15, 2009. Abuiznied reported “4/11/2009” as the date of 

claimant’s injury and also indicated, “[Employee] is having stomach pain and two days later 

claims she pulled a muscle.” (Emphasis added). Thus, whether Leavell’s workplace injury 

occurred on April 9, 2009 (as she originally alleged) or on April 2, 2009 (as she later alleged and 

as the full commission found3

), Leavell’s actual notice of her injury to her employer was timely 

in either circumstance – easily occurring within thirty days of the accident, as required by the 

statute. Accordingly, the commission’s finding that Leavell provided timely and proper notice of 

her injury was supported by credible evidence in the record. See Harris, 35 Va. App. at 171, 543 

S.E.2d at 623; Small, 7 Va. App. at 138, 371 S.E.2d at 832. 

III. CONCLUSION

 Even assuming without deciding that the commission erred when it used the term “law of 

the case” to describe its findings from the first review opinion, such error was not reversible 

error. The commission never indicated that it actually lacked authority to reconsider those 

findings in its second review opinion while the commission clearly still had jurisdiction over the 

case. Furthermore, on appeal from the commission’s final order, we hold that credible evidence 

supports the commission’s finding that Leavell provided adequate and timely notice of her injury 

as it is clear that employer had actual notice easily within thirty days of the accident that caused 

the injury. Accordingly, for the foregoing reasons, we affirm the commission’s award of 

benefits to Leavell. 

 Affirmed. 

 3

 We disagree with employer’s argument expressed in its third assignment of error that 

the commission erred when it permitted Leavell to amend her claim to change the date of her 

injury from April 9, 2009 to April 2, 2009. The commission found Leavell credible on this point 

and simply permitted Leavell to raise an injury date that the commission actually determined was 

more accurate than the date she originally alleged.