COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Bumgardner, Lemons and 

 Senior Judge Overton*

Argued at Richmond, Virginia 

RUSTY'S WELDING SERVICE, INC. AND 

 HARLEYSVILLE MUTUAL INSURANCE COMPANY 

 OPINION BY 

v. Record No. 2552-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 2, 1999 

EDWARD WAYNE GIBSON 

UPON A REHEARING EN BANC 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 S. Vernon Priddy, III (Sands, Anderson, 

Marks & Miller, on brief), for appellants. 

 Laura Ann McDonald (Craig B. Davis; 

Christopher C. Booberg; Geoffrey R. 

McDonald & Associates, on briefs), for 

appellee. 

 Rusty's Welding Service, Inc. (employer) appealed the 

commission's award of benefits to Edward Wayne Gibson (claimant). 

 Employer contended the award was barred by principles of res

judicata and that the award improperly required employer 

simultaneously to pay permanent partial disability (PPD) and 

temporary partial disability (TPD) benefits. A panel of this 

Court agreed and reversed the commission's decision. A hearing 

en banc was granted upon the petition of claimant. For the 

reasons that follow, we affirm the commission's decision. 

 

 *Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 
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 I. 

THE REHEARING EN BANC 

 Employer first argues that claimant is barred from having 

his argument considered on rehearing en banc and asks this Court 

to dismiss his petition on the ground that claimant elected not 

to brief the issues on the initial appeal or present argument 

with respect to them. Claimant, proceeding pro se and as the 

prevailing party, simply stated in writing that he intended to 

rely on the previous filings and the decisions of the Workers' 

Compensation Commission in the case as his response to employer's 

appeal. 

 In support of its position, employer cites inter alia

Coleman v. City of Richmond, in which we observed that 

"[o]rdinarily, a petition for rehearing will not be granted for 

the purpose of allowing counsel to submit additional authority 

that could have been represented in brief or oral argument." 6 

Va. App. 296, 297 n.1, 368 S.E.2d 298, 300 n.1 (1988). Our 

decision in Coleman does not establish an absolute bar to 

claimant's petition for rehearing en banc.1 Under the 

circumstances of this case, we find no reason which precludes our 

 

 1Although we set forth a general prohibition against the 

submission of additional authority on rehearing that could have 

been presented before the original panel, in our consideration of 

the petition for rehearing in Coleman, we permitted the 

presentation of additional authority. Id. at 297-99, 368 S.E.2d 

at 299-300 (examining a decision of the United States Supreme 

Court on petition for rehearing that the petitioner had not asked 

the panel to consider on original appeal). 
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consideration of claimant's petition, the brief he filed in 

support of it and the argument he advanced before this Court. 

Without exception, the authorities claimant cited in his petition 

for rehearing are the same as those cited by the original panel's 

majority or dissenting opinion. Claimant's arguments are 

premised on the original panel's dissenting opinion. 

 Furthermore, the policy considerations which underlie our 

holding in Coleman are not implicated here. The relevant 

considerations include the avoidance of surprise to the opposing 

party, together with the concomitant and related need to foster 

and preserve an orderly and comprehensive review by the appellate 

court. A piecemeal consideration of authority serves neither 

purpose. In this case, however, neither of these policy 

considerations is jeopardized by granting claimant's petition to 

rehear this matter en banc. Because the issues raised in 

claimant's petition for rehearing en banc are the same as those 

considered by the panel and because the authorities upon which 

claimant relies in his petition are the same as those cited in 

either the majority or the dissenting panel opinion, dismissal of 

claimant's petition for rehearing for the reasons advanced by 

employer would elevate form over substance. We decline to follow 

such a course. 

 Finally, we find nothing in our rules or the rules governing 

proceedings in the Virginia Supreme Court that precludes claimant 

from filing a petition for rehearing en banc. See Rules 5A:26, 
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5A:33, 5A:34. Accordingly, we decline to adopt the position 

urged by employer. 
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 II. 

RES JUDICATA

 We view the relevant facts in the light most favorable to 

the claimant. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 

211, 212, 390 S.E.2d 788, 788 (1990). While carrying a bottle of 

acetylene on November 12, 1994, claimant sustained an accidental 

injury to his back. Employer accepted the injury as compensable 

and paid benefits. In applications filed July 16, 1996 and 

October 29, 1996, respectively, claimant sought an increase in 

TPD benefits, an order holding employer responsible for medical 

expenses for claimant's left knee, and an award of PPD benefits 

for a 40% impairment to claimant's left leg. All of claimant's 

requests were based upon the medical opinion of Dr. Gurpal S. 

Bhuller. 

 After an on-the-record review, the deputy commissioner 

issued an opinion on March 4, 1997, in which he wrote that Dr. 

Bhuller did not adequately explain how claimant's leg injury was 

caused by the compensable back injury. The deputy commissioner 

also noted that Dr. Bhuller did not explain that the 40% leg 

impairment was permanent or that claimant had reached maximum 

medical improvement. He wrote that, "on the evidence before us 

we cannot conclude that maximum medical improvement has been 

reached and accordingly deny permanent partial disability 

benefits at this time." The deputy commissioner ordered 

employer's insurance carrier to submit a report showing 
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claimant's earnings and employer's payments to claimant, and 

concluded as follows: 

 Accordingly, the claimant's application is 

DENIED insofar as it has requested permanent 

partial disability benefits for the left leg 

and is DENIED to the extent requesting 

payment for medical treatment to the left 

knee. In all other respects, the claimant's 

application is continued on the Dispute 

Resolution Docket in accordance with the 

provisions of this opinion with the carrier 

to comply with the ORDERS stated above. 

Neither party sought review of this opinion. 

 On April 9, 1997, claimant filed another application seeking 

PPD benefits for a 40% impairment in his left leg. In support of 

his application, claimant submitted an additional opinion of Dr. 

Bhuller explaining claimant's 40% impairment in his left leg and 

stating that claimant had reached maximum medical improvement. 

In an opinion filed May 29, 1997, the deputy commissioner awarded 

claimant PPD benefits for a 40% loss of use of his left leg. 

Employer was ordered to pay claimant a lump sum of $25,767.70 in 

accrued benefits. 

 On review, the commission acknowledged that Dr. Bhuller's 

opinion submitted in support of the May 29, 1997 award "was not 

based on a contemporaneous evaluation but represented a more 

complete discussion of the basis for the disability rating." The 

commission also acknowledged that the issue addressed in the May 

29, 1997 opinion was identical to the issue addressed in the 

March 4, 1997 opinion. The commission held as follows: 

 [T]he issue was not determined with finality. 

 The Deputy Commissioner specifically stated 
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that, based "on the evidence before us," 

permanent partial disability benefits were 

denied "at this time" [emphasis added]. The 

Commission interprets the Opinion of March 4, 

1997, to have left the issue of permanent 

partial disability unresolved for future 

determination. 

The commission also held that it had discretion to order 

simultaneous payment of TPD and PPD benefits. 

 Employer argues that the award of PPD benefits on claimant's 

second application is barred by the doctrine of res judicata. 

Unlike questions of fact, which are binding on this Court if 

supported by evidence, we review questions of law de novo. 

Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 

S.E.2d 856, 857-58 (1996). 

 The doctrine of res judicata is applicable to decisions of 

deputy commissioners and the full commission. K & L Trucking 

Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 

(1985). Generally, "[r]es judicata precludes the re-litigation 

of a claim or issue once a final determination on the merits has 

been reached." Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 

S.E.2d 666, 669 (1994). Therefore, absent fraud or mistake, "the 

decisions of the Commission or its deputy commissioners from 

which no party seeks timely review are binding upon the 

Commission." Thurber, 1 Va. App. at 219, 337 S.E.2d at 302. 

 As the party seeking to assert res judicata, employer must 

prove that the deputy commissioner rendered a final judgment in 

its favor. Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va. 
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349, 353, 495 S.E.2d 387, 389 (1997). Generally, a judgment is 

final for the purposes of res judicata when "nothing more is 

necessary to settle the rights of the parties or the extent of 

those rights." 8B Michie's Jurisprudence, Former Adjudication or 

Res Judicata § 13 (1994). Furthermore, the employer must prove 

by a preponderance of the evidence that the issue previously 

raised was decided on the merits. Fodi's v. Rutherford, 26 Va. 

App. 446, 449, 495 S.E.2d 503, 505 (1998). 

 There is no question that, if the hearing remained open for 

further evidence, res judicata would not apply to bar appellant's 

claim. See Straessle, 253 Va. at 353, 495 S.E.2d at 389. This 

is precisely what the commission determined to be the posture of 

the case when a second hearing was held before the deputy 

commissioner. The commission "interpret[ed] the Opinion of March 

4, 1997, to have left the issue of permanent partial disability 

unresolved for future determination" and held that the former 

adjudication was not final. The commission premised its holding 

that the former adjudication lacked finality on the deputy 

commissioner's statement in the body of the opinion that PPD 

benefits were denied "at this time." 

 Proceeding from that conclusion, the commission considered 

the additional medical evidence which claimant filed with his 

second application. The commission described the evidence as "a 

new medical report from his treating physician, Dr. Gurpal S. 

Bhuller." In the report, Dr. Bhuller fully explained claimant's 
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40% permanent partial impairment rating and opined for the first 

time that claimant had reached maximum medical improvement. 

 Employer contends, however, that the body of the deputy 

commissioner's opinion should be disregarded, that the operative 

holding is stated at the end of the opinion and that the deputy 

commissioner's decision, thus viewed, fails to reflect any intent 

to hold the hearing open for further evidence. The language upon 

which employer specifically relies is contained in the final 

paragraph of the deputy commissioner's opinion letter, where the 

following conclusion is set forth: "claimant's application is 

DENIED insofar as it has requested permanent partial disability 

benefits for the left leg." 

 While no Virginia case directly addresses the issue before 

us, we note the general principle that courts have the authority 

to interpret their own orders. See Anderson v. Stephens, 875 

F.2d 76, 80 n.8 (4th Cir. 1989); Schwinn Cycling & Fitness Inc. 

v. Benonis, 217 B.R. 790, 795 (N.D. Ill. 1997). Furthermore, 

when construing a lower court's order, a reviewing court should 

give deference to the interpretation adopted by the lower court. 

See Anderson, 875 F.2d at 80 n.8; Matter of Xonics, Inc. v. 

First Wisconsin Financial Corp., 813 F.2d 127, 130 (7th Cir. 

1987). We hold that these principles apply when interpreting the 

adjudicative orders of an administrative agency.2

 

 2We also note the applicability, by analogy, of principles 

developed in relation to the Worker's Compensation Commission's 

rule-making authority. The commission has the power to make and 

enforce rules not inconsistent with the Workers' Compensation Act 
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 Principles applicable to the construction of judicial 

judgments and decrees are also instructive. Judgments and 

decrees entered by courts, and by extension by non-judicial 

adjudicative bodies, are the instruments through which they elect 

to speak. Thus, when the trier of fact issues an opinion at the 

time its decree is entered, the opinion is instructive as to the 

decree's reasoning and, by extension, its effect. See Lindsey v. 

Lindsey, 158 Va. 647, 653, 164 S.E. 551, 553 (1932) (stating that 

opinions entered by a trial court are "often exceedingly useful 

and frequently serve to bring to our attention incidents of 

importance which would otherwise not be noted in the record, and 

which could not readily be made to appear, even by bills of 

exception"). See also Middle-West Concrete Forming & Equip. Co. 

v. General Ins. Co. of America, 267 S.E.2d 742, 745 n.4 (W. Va. 

1980) ("Where the written opinion of the trial court is made part 

of the record, the reviewing court may consider the written 

opinion in determining the reasons for the trial court's rulings 

 

in order to carry out the provisions of the Act. Code 

§ 65.2-201(A); Arellano v. Pam E. K's Donuts Shop, 26 Va. App. 

478, 482, 495 S.E.2d 519, 521 (1998). Additionally, the 

commission has the power to interpret its own rules. Id. at 

482-83, 495 S.E.2d at 521; Brushy Ridge Coal Co. v. Blevins, 6 

Va. App. 73, 78 n.2, 367 S.E.2d 204, 206 n.2 (1988). When a 

challenge is made to the commission's construction of its rules, 

the appellate court's review is limited to a determination of 

whether the commission's interpretation was reasonable. 

Arellano, 26 Va. App. at 483, 495 S.E.2d at 521. The 

commission's interpretation will be accorded great deference and 

will not be set aside unless arbitrary or capricious. Specialty 

Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235 

(1992). 
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and judgment."); State ex rel. Moore v. Munchmeyer, 197 S.E.2d 

648, 653 (W. Va. 1973) (stating that a decree should be construed 

with reference to the court's intent and to other parts of the 

record) (citing Beecher v. Foster, 66 S.E. 643, 645 (W. Va. 

1909)). 

 Applying the principles enunciated, we hold that the 

commission is entitled to interpret its own orders in determining 

the import of its decisions. We further hold that it is within 

the commission's discretion to reach beyond the confines of the 

ultimate paragraph of the deputy commissioner's opinion and to 

examine the opinion of the deputy commissioner as a whole in 

order to ascertain the result intended. We further find that the 

exercise of its discretion with respect to this issue was 

reasonable and not arbitrary or capricious. The record supports 

the commission's conclusion that the deputy commissioner's use of 

the words "claim denied," followed by the phrase "at this time" 

signified a lack of finality in the proceedings. Because the 

deputy commissioner's decision was not a final determination on 

the merits of the matter before him, the doctrine of res judicata

does not apply. See Cook v. Clinchfield Coal Co., 215 Va. 599, 

212 S.E.2d 263 (1975).3 Accordingly, we affirm the commission's 

 

 3In Cook, the record disclosed that claimant's prior 

application "was dismissed by the deputy commissioner because the 

medical evidence at the hearing before him failed to disclose the 

existence of any occupational disease." The Court held as 

follows: 

 Since claimant could not prove his 1968 claim 

by medical evidence before the deputy 
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decision that the appellant's claim is not barred under the 

principles of res judicata. 

 commissioner, he was not barred from filing 

his second claim when he obtained a positive 

diagnosis on June 13, 1973 . . . . 

Id. at 600, 212 S.E.2d at 264. 
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 III. 

 THE MERITS 

 Under well recognized principles governing the standard of 

review on appeal, we must affirm the commission's judgment 

awarding PPD if those findings are supported by credible evidence 

in the record, regardless of whether contrary evidence exists or 

contrary inferences may be drawn. See Code § 65.2-706(A); 

Stenrich Group v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 

(1996); Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 68, 

455 S.E.2d 267, 271 (1995). We find that the commission's 

decision is supported by credible evidence and must be affirmed. 

 When the first application was considered by the deputy 

commissioner, the attending physician had expressed no opinion as 

to whether claimant had reached maximum improvement from his 

work-related injury. Until the deputy or commission received 

medical evidence that the injured employee attained maximum 

medical improvement, the deputy was without authority to make an 

award for permanent injury. See County of Spotsylvania v. Hart, 

218 Va. 565, 568, 238 S.E.2d 813, 815 (1977). Therefore, on the 

first application for an award based on permanency, the deputy 

correctly ruled that "at this time" claimant's request had to be 

denied because the compensation provided by Code § 65.2-503 is 

not awardable "until the injury has reached a state of 

permanency, i.e.[,] maximum [medical] improvement, when the 

degree of loss may be medically ascertained." See id.; Nicely v. 
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Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 

(1954). 

 When claimant filed his second application, he attached what 

the commission termed "a new medical report from his treating 

physician, Dr. Gurpal S. Bhuller." Dr. Bhuller's report 

contained claimant's statement that his "symptoms still persist" 

and Dr. Bhuller's opinion, for the first time, established that 

claimant had reached maximum medical improvement and set forth 

the basis for the 40% rating which Dr. Bhuller had given 

claimant's lower extremity impairment on August 1, 1996. Dr. 

Bhuller's report of March 12, 1997 provides credible evidence to 

support the commission's finding that claimant had reached 

maximum medical improvement as of August 1, 1996. 

 Employer further contends on appeal that the commission's 

order requiring employer to pay the PPD benefits simultaneously 

with ongoing TPD benefits was erroneous. Code § 65.2-503 

provides that "[c]ompensation awarded pursuant to this section 

[for a scheduled impairment] . . . shall be payable after 

payments for temporary total incapacity pursuant to § 65.2-500 

. . . [but] may be paid simultaneously with payments for 

[temporary] partial incapacity pursuant to § 65.2-502." 

(Emphasis added). Employer contends the statutory language 

provides employer, rather than the commission, with the 

discretion to make simultaneous or successive payments of TPD 

and PPD benefits. 
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 We disagree. The commission has the power under the 

Workers' Compensation Act to enter awards granting or denying 

benefits under the Act and dictating the terms under which those 

benefits will be paid as long as those terms do not conflict with 

the requirements of the Act. See, e.g., Code §§ 65.2-101, 

65.2-201. Therefore, the only reasonable construction of Code 

§ 65.2-503, which provides that payments for a rating "may be 

paid simultaneously with payments for [temporary] partial 

incapacity," (emphasis added), is that the commission has 

discretion to order such payments. In cases where the commission 

does not order such payments, employer would be free to make 

simultaneous payments voluntarily. 

 For these reasons, we affirm the commission's decision 

modified to the extent that only the PPD benefits that had 

accrued after August 1, 1996 were payable in a lump sum. 

 Affirmed.