COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Salem, Virginia 

WILLIAM GARY BOYER 

 MEMORANDUM OPINION* BY 

v. Record No. 0906-00-3 JUDGE ROBERT P. FRANK 

 DECEMBER 5, 2000 

SUNDOWN EXPRESS, INC. AND 

 LEGION INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 A. Thomas Lane, Jr., for appellant. 

 Thomas S. Berkley (Carr and Porter, L.L.C., 

on brief), for appellees. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 William Gary Boyer (claimant) appeals the decision of the 

Workers' Compensation Commission (commission) finding his claim 

alleging injury by accident arising out of and in the course of 

his employment on March 19, 1998 is barred by the doctrine of 

res judicata. Finding no error, we affirm the commission's 

decision. 

I. BACKGROUND 

 Claimant originally filed a claim for benefits alleging he 

suffered an accident on April 19, 1998, which arose out of and 

in the course of his employment with Sundown Express, Inc. 

(employer). Claimant alleged he injured his back while moving 
pallets of frozen turkeys. Claimant filed the medical records 

of Dr. Chappell and Dr. Riggleman in support of his claim. 

 On March 18, 1999, prior to the hearing on the claim, 

claimant requested the claim be dismissed without prejudice. On 

March 19, 1999, Deputy Commissioner Culbreth entered an order 

dismissing the claim without prejudice. 

 On March 25, 1999, claimant filed a second claim for 

benefits again alleging he suffered a compensable injury on 

April 19, 1998. A hearing was held before Deputy Commissioner 

Culbreth on June 15, 1999. Prior to the conclusion of the 

hearing, claimant withdrew his claim. The commission issued an 

opinion on June 23, 1999, which noted the withdrawal of the 

initial claim on March 18, 1999, and dismissed the second claim 

with prejudice. Claimant did not appeal the dismissal of the 

second claim. 

 On June 23, 1999, claimant filed the present claim for 

benefits, alleging he was injured in a work-related accident on 

March 19, 1998, a different date from the first two claims. 

Claimant alleged he injured his back unloading frozen turkeys. 

Claimant attached the same medical records from Dr. Chappell and 

Dr. Riggleman to the present claim as were attached to the 

initial and second claims. 

 Employer filed a plea of res judicata. The deputy 

commissioner dismissed claimant's present claim with prejudice. 

Claimant requested review by the full commission. In its 

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opinion, the commission found that claimant alleged the same 

injury and relied upon the same medical evidence as in the first 

two claims. The commission rejected claimant's argument that 

the different date of accident distinguished the present claim 

from the prior litigation. The commission affirmed the deputy 

commissioner's decision. 

II. ANALYSIS 

 Claimant contends his present claim for benefits is not 

barred by the doctrine of res judicata. 

 Claimant concedes the present claim concerns the same 

injury, the same employer, and the same medical records, yet he 

contends that the same set of operative facts do not exist 

because the new date of accident asserted in the present case 

specifically distinguishes it from the first two claims. 

 "It is well-settled that conclusions of the Commission upon 

questions of law, or mixed questions of law and fact, are not 

binding on [appeal]." Brown v. Fox, 189 Va. 509, 517, 54 S.E.2d 

109, 113 (1949). The determination of res judicata is a 

question of law. See Rusty's Welding Service, Inc. v. Gibson, 

29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc). 

"The doctrine of res judicata is applicable to decisions of 

deputy commissioners and the full commission. Generally, '[r]es

judicata precludes the re-litigation of a claim or issue once a 

final determination on the merits has been reached.'" Id. at 

128, 510 S.E.2d at 259 (citations omitted). 

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 In this case, when the second claim was dismissed with 

prejudice, employer received a final disposition of the claim, 

which was adverse to claimant. 

 "The bar of res judicata precludes relitigation of the same 

cause of action, or any part thereof, which could have been 

litigated between the same parties . . . ." Smith v. Ware, 244 

Va. 374, 376, 421 S.E.2d 444, 445 (1992) (citations omitted). 

"[A]s a general proposition a judgment of dismissal which 

expressly provides that it is 'with prejudice' operates as res

judicata and is as conclusive of the rights of the parties as if 

the suit had been prosecuted to a final disposition . . . ." 

Virginia Concrete Co. v. Bd. of Supervisors of Fairfax County, 

197 Va. 821, 825, 91 S.E.2d 415, 418 (1956) (citation omitted). 

 Under the Workers' Compensation Act 

(the "Act"), Code §§ 65.2-100 to -1310, "a 

claimant must prove by a preponderance of 

the evidence either an 'injury by accident' 

or an 'occupational disease.'" A New Leaf,

Inc. v. Webb, 257 Va. 190, 195, 511 S.E.2d 

102, 104 (1999) (citations omitted). The 

term "injury by accident" is defined as an 

"identifiable incident or sudden 

precipitating event [that results] in an 

obvious sudden mechanical or structural 

change in the body." Morris v. Morris, 238 

Va. 578, 589, 385 S.E.2d 858, 865 (1989) 

(citation omitted); see Chesterfield Co. v.

Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 

181 (1990). 

Ogden Aviation Services v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d 

756, 758 (2000). 

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 Claimant, to receive compensation for his injury, had to 

prove he suffered an "injury by accident." To do so, he had to 

establish that there was an "identifiable incident" or "sudden 

precipitating event" whereby he suffered a mechanical or 

structural change in his body. The "identifiable incident" in 

the first two claims and the present claim was the lifting of 

the pallets of frozen turkeys. Claimant does not contend the 

injury in the present claim is different from the injury alleged 

in the first two claims, and the medical evidence submitted with 

all three claims was identical. In fact, claimant concedes that 

the claims are the same except for the date of the accident.1 

 When the commission dismissed the second claim with 

prejudice, it dismissed claimant's claim for the work-related 

back injury he sustained by unloading the pallets of frozen 

turkeys. The present claim is for the same work-related back 

injury claimant sustained by unloading the pallets of frozen 

turkeys. The issues before the commission in all three claims 

were whether claimant suffered an injury by accident that arose 

out of and during the course of his employment. The date of the 

 1

 Claimant argues in his brief that he planned to submit 

additional medical evidence. However, the medical evidence 

submitted in support of the current claim is all that was before 

the commission, and it is identical to the medical evidence 

submitted in the first two claims. 

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injury was irrelevant to the issues before the commission in all 

three claims.2 

 We, hold, therefore, that the current claim is barred by 

res judicata because the date of the accident was irrelevant to 

the determination of the issues in all three claims and, in all 

other respects, the claims were identical. 

Affirmed.

 2

 On the facts before us, the date is irrelevant to the 

claim. However, in other cases, the date of injury may have 

significance. 

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