COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Humphreys and Alston Argued at Richmond, Virginia

FRANCIS CHESTER, ESQ. MEMORANDUM OPINION * BY v. Record No. 0166-09-2 JUDGE ROSSIE D. ALSTON, JR. NOVEMBER 24, 2009 BARRY WYATT REDIFER, CINCINNATI I NDEMNITY COMPANY AND UNINSURED EMPLOYERS’ FUND

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION J.P. McGuire Boyd, Jr . (Calvin W. Fowler, Jr .; Williams Mullen, on briefs), for appellant. James B. Feinman (James B. Feinman & Associates, on brief), for appellee Barry Wyatt Redifer. Joseph C. Veith, III (Trichil o, Bancroft, McGavin, Horvath & Judkins, P.C., on briefs), for appellee Cincinnati Indemnity Company. Thomas G. Bell, Jr. (Timberla ke, Smith, Thomas & Moses, P.C., on brief), for appellee Uninsured Employers’ Fund.
Francis Chester (Chester) appeals a decisi on of the Workers’ Compensation Commission (the commission) finding Barry Redifer (claim ant) suffered a compensable neck injury. Cincinnati Indemnity Company (Cincinnati) concurs in Chester’s appeal and assigns cross-error, asserting the commission erred in failing to dismiss Cincinnati based on res judicata. Uninsured Employers’ Fund (Uninsured) concurs in Chester’ s appeal and also as signs cross-error. Uninsured asserts the commission er red in deciding that Cincinnati did not provide insurance coverage for employer, Cestari, Ltd. (Cestari).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - We hold the commission did not err in finding Cestari liable for claimant’s neck injury. We further hold the commission did not e rr in declining to apply res judicata to dismiss the claims against Cincinnati. Finally, we hold the commission did not err in determining Cincinnati did not provide insurance coverage for Cestari. Thus, we affirm the commission’s decision.
I. BACKGROUND As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understa nding of this appeal. Chester owns Cestari, Cestari Sheep & Land Co., LLC, and a private law office. Chester maintains a workers’ compensation insurance polic y with Cincinnati. Th e policy lists Francis Chester, not Cestari or Cestar i Sheep & Land Co., LLC, as the insured. The insurance policy provides coverage for Chester’s la w office and retail employees. Claimant was employed as a machine operator for Cestari. On October 9, 2006, claimant was injured when his right hand got caught in a wool press machine, injuring his hand, and knocking his face and teeth into the machine. Cl aimant immediately sought treatment at the University of Virginia Medical Center, and was treated by Dr. Bobby Chhabra. Claimant mentioned neck pain to Dr. Chhabr a, but Dr. Chhabra declined to tr eat claimant for neck pain or refer him to another physician for further treatme nt. Chester specifically declined to authorize treatment for any neck pain. Claimant subse quently began treatment for neck pain with Dr. Ronald Lowman at Lowman Chiropractics. Claimant filed a claim for benefits with th e commission, listing Cestari as his employer. Cincinnati notified the commission that its insurance coverage ex tended to Chester, not Cestari and, accordingly, the commission dismissed Cincinna ti and added Uninsured as a defendant in the case. Chester asserted that he was, in fact , claimant’s employer because Cestari was merely a- 3 - sham corporation. Because of confusion over clai mant’s employer at the time of the accident, Chester was joined as a defendant and Ci ncinnati was added back to the claim. At a hearing before the deputy commissioner, the parties agreed that claimant suffered compensable injuries to his face and hand. Ho wever, the parties contested the injury to claimant’s neck, as well as who was responsible for claimant’s in juries. At some point in the proceedings, the deputy commissioner declined to take further ev idence, stating that he would decide who employed claimant at the time of the injury, but he would not decide whether Cincinnati’s insurance coverage extended to that employer. The deputy commissioner found claimant’s neck injury was not compensable. He also found that Cestari was claimant’s employer. Despite the deputy commissioner’s st atement that he would not decide whether Cincinnati insured the claim, the commissioner found that Cincinnati did not provide coverage for Cestari. The parties appealed to the full commi ssion. The commission reversed the deputy commissioner in part, finding that claimant’s neck injuries were compensable and that Dr. Lowman was claimant’s authorized treating physician. The commission affirmed the deputy commissioner’s finding that Ce stari was claimant’s employer. However, the commission declined to dismiss Cincinnati based on res ju dicata, holding that the earlier dismissal of Cincinnati did not bar l itigation as soon as it was determined that Chester was not claimant’s employer. Finally, the commission found that it was harmless error fo r the deputy commissioner to determine that Cincinnati did not provide covera ge, after stating that he would not make such a determination. This appeal followed.
II. ANALYSIS The fundamental purpose of th e Virginia Workers’ Compensati on Act (the Act) is to give compensation for accidental injuries arising out of and in the course of employment without- 4 - regard to fault. Lawrence J. Pascal, Virginia Workers’ Compensation: Law and Practice , 1-3 (3d ed. 2000). “‘It is as essential to industry as it is to labor.’” Id. (quoting Feitig v. Chalkley , 185 Va. 96, 98, 38 S.E.2d 73, 73 (1946)). “It extends the employer’s liability to all accidental personal injuries ‘arising out of and in the course of the employment.’” Id. (quoting Feitig , 185 Va. at 98, 38 S.E.2d at 73) (emphasis added). Although workers’ compensation should not go to the extent of requiring that every claim asserted be allowed, the Act was enacted for the purpose of attaining a humanitarian and be neficent purpose, and is highly remedial and to be liberally construed in the favor of the workman. See Humphries v. Newport News Shipbuilding Dock & Supply Co. , 183 Va. 466, 479, 32 S.E.2d 689, 695 (1945); Gobble v. Clinch Valley Lumber Co. , 141 Va. 303, 305, 127 S.E. 175, 176 (1925); see also Corporate Res. Mgmt. Inc. v. Southers , 51 Va. App. 118, 126, 655 S.E.2d 34, 38 (2008) (en banc).
A. NECK INJURY On appeal of a decision from the commissi on, the Court construes the evidence in the light most favorable to the pa rty prevailing below and must u phold the commission’s findings of fact if the record contains evidence to support them. Lynchburg Foundry Co. v. Goad , 15 Va. App. 710, 712, 427 S.E.2d 215, 217 (1993). In th e instant case, we construe the facts regarding claimant’s neck injury in the light most favorable to him. Chester, Cincinnati, and Uninsured firs t contend the commission erred in finding claimant’s neck injury was a compensable injury and claimant’s treatment with Dr. Lowman was authorized. 1 “Causation of a medical c ondition may be proved by either direct or circumstantial

1 Uninsured initially contests Chester’s right to bring this appeal, not ing that the award of the commission was entered against Cestari, not Chester. Uninsured argues that the commission’s order was not a final order as to Chester. A “final award” is “a decision of the [commission] granting or denying, or changing or refusing to change, some benefit payable or allowable under the Workers’ Compensation Ac t and leaving nothing to be done except to superintend ministerially th e execution of the award.” Jewell Ridge Coal Corp. v. Henderson , 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985). Although the commission granted benefits to- 5 - evidence, including medical evidence or ‘the testimony of a claimant.’” Farmington Country Club v. Marshall , 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005) (quoting Dollar Gen. Store v. Cridlin , 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996)). “The commission’s determination regarding causation is a finding of fact.” Id. In determining whether credible evidence exists to support the commission’s findings of fact, “t he appellate court does not retry the facts, reweigh . . . the eviden ce, or make its own determination of the credibility of the witnesse s.” Thus, unless a reviewing court can say as a matter of law that clai mant failed to sustain her burden of proving causation, the commissi on’s findings are binding and conclusive upon us. Id. at 26-27, 622 S.E.2d at 239 (quoting Wagner Enters. v. Brooks , 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). The medical record indicates that claimant was pulled into the machine so hard that his teeth were knocked out and his lip sliced open. Th e parties agree that when claimant was jerked into the machine, he struck his head and face on the machine itself. Further, the record shows that when claimant was initially treated for his injuries by Dr. Chhabra, he complained of neck pain. Dr. Chhabra simply refused to treat him fo r such pain. In the hearing before the deputy commissioner, claimant testified that although he complained about neck pain, his doctors were more concerned with the injuries to his hand becau se those injuries were more severe. Finally, Dr. Lowman’s records indicate that he was trea ting claimant for neck pain resulting from the work injury. Based on the evidence, we cannot sa y that claimant failed to sustain his burden of proving causation. Thus, we defer to the comm ission’s findings and its conclusion that claimant’s neck injury is a compensable claim.

claimant from Cestari, Chester has both an intere st in and potential liability arising out of his stake as a shareholder in Cestari. Accordin gly, the commission’s decision was a final order appealable by Chester.- 6 - Chester, Cincinnati, and Uninsured also contest the fact that Dr. Lowman was an authorized treating physician. Under Code § 65.2-603, “the employer has the obligation and responsibility to supply medical treatment that is prompt, in compliance with the statutory requirements on choice of physicians, and adequate. If the employer fails to do so, the claimant may make suitable arrangements to acquire su ch treatment at the employer’s expense.” Goodyear Tire & Rubber Co. v. Pierce , 9 Va. App. 120, 128, 384 S.E.2d 333, 338 (1989) (citing prior Code § 65.1-88). Code § 65.2-603(C) provides, if in an emergency or on account of the employer’s failure to provide the medical care . . . or for other good reasons, a physician other than provided by the employer is called to treat the injured employee, . . . the reasonable cost of such service shall be paid by the employer if ordered to by the Commission. H. J. Holz & Son v. Dumas-Thayer , 37 Va. App. 645, 653, 561 S.E.2d 6, 10 (2002). The parties stipulated that claimant’s em ployer refused to supply medical care for neck pain and that Dr. Chhabra declined to provide such treatment. Accordingly, claimant was free to select his own treating physician for neck pa in, and under Code § 65.2- 603(C), the commission was authorized to order employer to pay th e reasonable cost of such service.
B. RES JUDICATA Cincinnati argues that once Ce stari was found to be claimant’s employer, the commission should have applied res judicata to dismiss the claim against Ci ncinnati. Cincinnati contends that when the commission determined that Cestari, and not Chester, was liable for the claim, the earlier order dismissing Cincinna ti barred any determination as to whether Cincinnati provided coverage for Cestari. It is well established that the doctrine of res judicata is applicable to the commission, and bars litigation of the same cause of action, or an y part thereof, which could have been litigated between the same parties and their privies. K & L Trucking Co. v. Thurber , 1 Va. App. 213,- 7 - 219, 337 S.E.2d 299, 302 (1985). A plea of res judi cata will be sustained if a valid final judgment was entered which resolv ed the claim on its merits. Bates v. Devers , 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974). The party asse rting the defense of res judicata must show by a preponderance of the evidence that the claim should be precluded by the prior judgment. Id. at 671, 202 S.E.2d at 921. Neither the claim nor the parties were the same at the time the original order was entered dismissing Cincinnati, and the time the deputy commissioner determined th at Cestari, and not Chester, was claimant’s employer. The commissi on correctly noted that at the time Cincinnati was originally dismissed from the claim, the issue was whether Cincinnati was the insurer for Cestari. The claim changed as Chester alleged th at he was the employer, not Cestari. At that point, Cincinnati was added back to the claim fo r a determination of whether Cincinnati provided coverage for Chester, in his cap acity as owner of Cestari. Wh ether Cincinnati provided coverage for Chester, as owner of Cestari, was neither addressed nor litigated at the time the commission entered the first order. Further, Uninsured was not a party to the claim when Cincinnati was originally dismissed. For these reasons, the co mmission did not err in find ing that res judicata did not apply to the claims against Cincinnati.
C. CINCINNATI’S INSURANCE COVERAGE At the conclusion of the hearing before the deputy commissioner, the deputy commissioner stated that he w ould not take further evidence and he would not decide whether or not Cincinnati provided coverage for the claim. The deputy commissione r’s opinion then made the determination that Cincinnati did not provide coverage unde r the circumstances. Uninsured argues that the deputy commissioner erred in deciding that Cincinna ti does not provide coverage for the claim, given the commissi oner’s statement that he would not make such a determination. Uninsured does not contest the fact that the depu ty commissioner had jurisdiction to make such a- 8 - determination, just that it wa s “unfair” under the circumstance s. Essentially, Uninsured’s contention is that the commission abused its discre tion in declining to take further evidence or remand the issue to the deputy commissioner for further evidence. Code § 65.2-700 vests the commission with jurisd iction to determine all questions arising under the Act. Questions between the insurer an d the employer or another insurer arise under the Act insofar as they affect the rights of an injured employee. Bogle Dev. Co. v. Buie , 250 Va. 431, 434, 463 S.E.2d 467, 468 (1995). Further, C ode § 65.2-705(A) provides that the commission shall “review the evidence or, if deemed advisable, . . . hear the parties at issue.” Accordingly, the commission has the authority to decide the issue of coverage without remanding to the deputy commissioner for further evidence. Clinch Valley Med. Ctr. v. Hayes , 34 Va. App. 183, 189, 538 S.E.2d 369, 372 (2000). As the commission found, it was harmless error for the deputy commissioner to determine coverage after refusing to take further evidence. Th e deputy commissioner considered: testimony from Chester that Ce stari was covered under Cincinnati’s policy; depositions from Cincinnati’s underwriting insuran ce agent, stating that Cestari employees were not covered under its policy; and the insurance policies th emselves. This evidence was subject to cross-examination by Uninsured. Although Chester argued that Cinc innati’s policy covered Cestar i, the evidence before the deputy commissioner clearly showed otherwise. Chester was the named insured on the policy, not Cestari. The testimony of Cincinnati’s underwriting agent wa s that she specifically told Chester that coverage for Cestari would need to be obtained through a separate policy. The underwriting agent also told Chester that the cu rrent policy covered only retail workers. This evidence supports the deputy co mmissioner’s determination that Cincinnati did not provide coverage for Cestari.- 9 - Uninsured asserts that given the chance, it w ould have presented evidence that Cincinnati should be liable for coverage, and then Cinci nnati could adjust its premium with Chester. However, Uninsured provided no legal authority for such a conclusion. Further, the commission was presented with that argument and chose not to take further evidence, stating that, under the circumstances, no additional evidence would alte r the determination that Cincinnati did not provide coverage for Cestari. It was well-within the commission’s discreti on to decline to take further evidence given the testim ony that was already presented to the deputy commissioner and argued by the parties on brief to the commissi on. Accordingly, the commission’s decision to uphold the deputy commissioner’s dete rmination was not erroneous.
III. CONCLUSION For these reasons, we hold the commission did not err in finding claimant’s neck injury was caused by the accident. We fu rther hold the commission did not err in declining to apply res judicata to dismiss the claims against Cincinnati. Finally, we hold the commission did not err in determining Cincinnati did not pr ovide insurance coverage for Cest ari. Accordingly, we affirm the decision of the commission. Affirmed.