COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

THEODORE MACK SEAL 

v. Record No. 2371-95-2 MEMORANDUM OPINION*

 PER CURIAM 

THE MUFFLER SHOP, INC. MARCH 19, 1996 

AND 

ERIE INSURANCE GROUP 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (Gerald G. Lutkenhaus, on brief), for 

appellant. 

 (Lynne Jones Blain; Lori Morris Whitten; 

Morris & Morris, on brief), for appellees. 

 Theodore Mack Seal ("claimant") contends that the Workers' 

Compensation Commission erred in (1) finding that the doctrine of 

res judicata did not bar the commission from considering the 

change in condition application filed by Muffler Shop, Inc. and 

its insurer (hereinafter collectively referred to as "employer"); 

(2) finding that employer proved claimant was able to return to 

his pre-injury work without restrictions as of April 11, 1995; 

and (3) deciding employer's application on-the-record and in 

refusing to grant claimant an evidentiary hearing. Upon 

reviewing the record and the briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the commission's decision. Rule 5A:27. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 I. Res Judicata

 The commission found that employer's April 18, 1995 

application was not barred by the doctrine of res judicata. The 

April 18, 1995 application presented the issue of whether 

claimant could return to his pre-injury work without restrictions 

as of April 11, 1995. This issue was not, and could not have 

been, previously litigated and determined as to these parties. 

Indeed, employer based its April 18, 1995 application upon new 

evidence, including Dr. Benjamin R. Allen, Jr.'s April 4, 1995 

examination of claimant and claimant's test results, and Dr. 

Allen's April 4 and April 11, 1995 reports. Therefore, the 

commission did not err in finding that the doctrine of res

judicata did not bar it from considering employer's April 18, 

1995 change in condition application. 

 II. Return to Work

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 In ruling that employer proved claimant could return to work 

without restrictions, the commission accepted the opinion of Dr. 

Allen, a neurosurgeon, and rejected the contrary opinion of Dr. 

Basava Raj, a neurologist. In April 1995, Dr. Allen opined that 
 3 

claimant's MRI, myelogram, and post-myelogram CT scan did not 

reveal any significant discogenic disease. Noting that claimant 

might have a complaint of pain, but that he did not have any 

neurologic deficit, Dr. Allen concluded that claimant could 

return to all activities related to his pre-injury work for 

employer. Dr. Allen's opinion constitutes credible evidence to 

support the commission's findings. "The fact that there is 

contrary evidence in the record is of no consequence if there is 

credible evidence to support the commission's finding." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991). 

 III. Denial of Evidentiary Hearing

 Claimant contends that the deputy commissioner's 

on-the-record review of the case denied claimant the opportunity 

to testify concerning his inability to perform the duties of his 

pre-injury work. He argues that the on-the-record procedure 

denied him due process. 

 The deputy commissioner's use of the on-the-record hearing 

procedure satisfied the requirements of due process. "[D]ue 

process is flexible and calls for such procedural protections as 

the particular situation demands." Mathews v. Eldridge, 424 U.S. 

319, 334 (1976). "[T]he fundamental requisite of due process of 

law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S. 

254, 267 (1970). The commission had before it the issue of 

whether claimant had been released to return to his pre-injury 
 4 

work. This case did not require an evidentiary hearing because 

such a hearing would not have produced any additional medical 

testimony necessary to resolve any conflict in the medical 

evidence. See Duncan v. ABF Freight System, Inc., 20 Va. App. 

418, 457 S.E.2d 424 (1995); Williams v. Virginia Electric and 

Power Co., 18 Va. App. 569, 445 S.E.2d 693 (1994). The 

commission properly considered the issue raised by employer's 

application as a medical question, which did not require 

claimant's testimony regarding his inability to work. Based upon 

this record, the commission did not abuse its discretion in 

deciding employer's application on-the-record, nor did it deny 

claimant due process by refusing to grant his request for an 

evidentiary hearing. 

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

 Affirmed.