COURT OF APPEALS OF VIRGINIA

Present: Judges Hu mphreys, Beales and Se nior Judge Annunziata Argued at Salem, Virginia

MEIDAN, INCORPORATED AND TECHNOLOGY INSURANCE COMPANY OPINION BY v. Record No. 0067-13-3 J UDGE 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, employe r) appeal the decision of the Workers’ Compensation Commissi on (the commission) awarding bene fits to the claimant, Tina Leavell. Employer claims that the commission erred in finding (1) that employer could have appealed the commission’s firs t review opinion, (2) that the co mmission’s findings in its first review opinion were the “law of the case,” and (3) that Leavell provide d timely notice of the workplace accident that resulted in her injury. For the following reasons, we affirm the

commission in this case.

I. B ACKGROUND “On appeal from the commission, we view th e evidence in the light most favorable to [Leavell], the party prevailing below.” St arbucks Coffee Co. v. Shy, 61 Va. App. 229, 233, 734 S.E.2d 683, 685 (2012). The evidence here establishe s that Leavell was injured at work while stacking cases of beer and that she told her supervisor, Nasser A buiznied, about th e injury on the day it occurred. Abuiznied filed an employer’s accident report with the commission on April 15,PUBLISHED- 2 - 2009 that reported this injury. In her initial claim for benefits that she filed with the commission, Leavell alleged that her wor kplace 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 commissi oner to address whether claimant was eligible for disability payments – an issu e that is not pertinent to th is appeal. Following the deputy commissioner’s decision on remand, employer ag ain sought full commission review. Pertinent to this appeal, employer’s written statemen t challenged findings from the commission’s first review opinion – including the commission’s findi ng that Leavell provided timely notice of her injury. On December 10, 2012, the commission unanim ously 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 commi ssion’s findings from its first review opinion – noting that the first review opi nion “was not appealed” and also characterizing the first review opinion as “the law of the case.” In particular, the commission rule d 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.- 3 - II. A NALYSIS A. A PPEALABILITY OF THE F IRST R EVIEW O PINION 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 app eal 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 opi nion could have been ap pealed immediately, it is well established that an “adverse interlocutory adjudication may be the subject of appeal from the final adjudication.” Smith v. Woodlaw n 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 re quired” 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 determin ed 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 challe nging any of the commission’s findi ngs 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 whet her the first review opini on was an interlocutory order “adjudicating the principles of a cause” under Code § 17.1-405(4)(ii).- 4 - B. F INDINGS OF THE F IRST R EVIEW O PINION AS “L AW OF THE C ASE ” In its second assignment of error, empl oyer argues that the co mmission misapplied the “law of the case” doctrine to preclude the commi ssion’s own authority to reconsider the findings

that it made in its first revi ew opinion. The longstanding de finition of the law of the case doctrine in Virginia, “briefly stated, is this: Wher e there have been two ap peals 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 app eal] 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 ca se doctrine does not apply to commission proceedings 2 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 fu ll commission has the specific power to “adjudicate issues and controversies relating th ereto.” Code § 65.2-201. As the Supreme Court of Virginia has explained, motions for rehearing or for reconsid eration “are not uncommon” in commission proceedings, “and the Commission may vacate the original decision pending

consideration of such a moti on.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003). Clearly, the full co mmission 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 Filt rona Co. v. Hanford, 16 Va. App. 159, 428 S.E.2d 511 (1993). In that case, a deputy commissione r “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.- 5 - However, even assuming without deciding that the commission here incorrectly used the

term “law of the case” in the sec ond review opinion, the record fails to establish revers ible 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. A pp. 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 sugge sts 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 pa rty below), the re cord establishes at most that the commission simply declined to reconsider the issues it decide d 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 gene rally “does not review its own determinations” that it has already made in a first review opini on. Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 35, 422 S.E.2d 165, 168 (1992). In addition, as Leavell a sserts on appeal, language from the second review opinion suggests that the full commission actually did reconsider (but ultimately di d not disturb) the finding from the first review opini on that employer challenges in th is appeal. Specifically, the

commission stated in its second re view 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 adde d). Given the commission’s use of the phrase “and we find,” the commission seemingly took an additional step in th e second review opinion- 6 - and issued a finding on the adequacy of Leavell’s notice of her injury. This language from the commission’s second review opini on further reinforces our conc lusion that the commission did not actually apply the “law of the case” doctr ine in the manner that employer alleges. Therefore, the full commission in its second re view 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 eith er event, the record does not support employer’s allegation that the commi ssion found that it lacked authority to revisit that i ssue. Accordingly, even assuming without deciding that the commission incorrectly used the te rm “law of the case” in its second review opinion, any such error in th e commission’s incorrect us age of that term was

harmless.

C. L EAVELL ’ S P ROVIDING N OTICE OF H ER I NJURY TO E MPLOYER In its third assignment of error, employer ar gues that the commissi on erred in finding that Leavell provided adequate and timely notice of her injury – because she did not provide written notice of her injury within th irty days of its occurrence. Code § 65.2-600(D) requires an empl oyee 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 thr ough 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 Abui znied about her injury on the day it occurred. Moreover, the record establishes that Abuiznie d completed and filed an employer’s accident- 7 - report in the commission on April 15, 2009. Abui znied reported “4/11/2009” as the date of claimant’s injury and also indicated, “[Employ ee] is having stomach pain and two days later

claims she pulled a muscle .” (Emphasis added). Thus, wh ether 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 found 3 ), 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 commi ssion’s finding that Leavell provi ded 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. C ONCLUSION Even assuming without deciding that the comm ission erred when it used the term “law of the case” to describe its findings from the firs t 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 ha d 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 reas ons, we affirm the commission’s award of

benefits to Leavell.

Affirmed.

3 We disagree with employer’s argument expr essed in its third assi gnment 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.