COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued at Salem, Virginia 

LOWES OF CHRISTIANSBURG, VIRGINIA AND 

 LOWES HOME CENTERS, INC./SPECIALTY 

 RISK SERVICES, INC. 

 OPINION BY 

v. Record No. 1188-01-3 JUDGE JAMES W. BENTON, JR. 

 JANUARY 15, 2002 

JENNIFER D. CLEM 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert M. Himmel (Monica L. Taylor; Gentry 

Locke Rakes & Moore, on brief), for 

appellants. 

 Robert M. McAdam (Jones & Glenn, P.L.C., on 

brief), for appellee. 

 The sole issue raised by this appeal is whether the 

Workers' Compensation Commission erred in ruling that Jennifer 

D. Clem's change-in-condition claim for temporary total 

disability benefits beginning November 25, 1999 is barred by the 

doctrine of res judicata. We hold that the claim is not barred 

and affirm the commission's award. 

I. 

 The evidence proved that in 1997 Clem suffered a 

compensable injury by accident to her ankle, leg, and back that 

arose out of and in the course of her employment with Lowes of 

Christiansburg. Her back injury was initially described as "a 

herniated disc, left L5-S1." The commission approved various 
memoranda of agreement, which provided compensation to Clem for 

temporary total disability and temporary partial disability. On 

September 22, 1997, Dr. Lawrence I. Kleiner performed surgery on 

Clem for a left L5-S1 herniated disc. Clem returned to work on 

April 1, 1998 and received additional payments for temporary 

partial disability. 

 On July 30, 1999, Clem filed a change-in-condition claim, 

alleging temporary total disability from that date. Although 

the recording of the evidentiary hearing was destroyed, the 

parties stipulated that the medical records in the commission's 

file would constitute the record. The medical records 

established that a radiologist reviewed a July 7, 1999 MRI of 

Clem's lumbar spine and reported a "small rightward disc 

extrusion is suspected at L5-S1." Dr. Murray E. Joiner examined 

Clem, reviewed the MRI, and opined that Clem had a "new, 

right-sided, herniated disc at L5-S1 [that] is unrelated to her 

[injury by accident]." He referred Clem to Dr. Kleiner, the 

neurosurgeon who had previously treated Clem. Dr. Kleiner also 

opined that Clem had a right-sided disc herniation. In a 

detailed letter, Dr. Kleiner explained that he could not "say, 

with medical certainty, that the herniation to the right is 

actually resultant from" her compensable injury by accident. 

After reviewing Clem's medical records, Dr. Jeffrey McConnell 

reported, consistent with the other doctors' opinions, that "it 

is impossible to state that the new right L5-S1 disc herniation 

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discovered in July 1999 is in anyway causally related to the 

[compensable injury by] accident." 

 The only contrary medical evidence before the commission 

was a document, which had been prepared by Clem's attorney and 

signed by Dr. Edgar Weaver, a neurosurgeon. By marking a check 

on a space designated, "True," Dr. Weaver indicated that 

treatments Clem received for "her L5-S1, L4-L5 spine on the 

right and the left are due to the [injury by accident]." 

 On review from the deputy commissioner's denial of relief 

to Clem, the commission affirmed the denial. In pertinent part, 

the commission made the following findings and decision. 

 Although Dr. Weaver agreed with the 

statement provided by [Clem's] counsel that 

all care rendered by him, including the care 

and treatment of the L5-S1 and L4-L5 spine 

on the right and the left, was due to 

injuries sustained on May 7, 1997, he did 

not indicate how he reached his conclusion, 

and he did not discuss the basis for his 

opinion. 

 Unlike Dr. Weaver, Drs. Kleiner, Joiner, 

and McConnell have explained the basis for 

their conclusions. The medical evidence 

supports the opinions of these physicians. 

Therefore, we find their opinions to be more 

persuasive than Dr. Weaver's opinion. We 

note that although Dr. Kleiner agreed to 

defer to Dr. Weaver's opinion regarding 

causation, his acquiescence does not make 

his opinion less probative. [Clem's] 

current disability is based on her 

right-sided disc herniation, which the 

Deputy Commissioner found to be unrelated to 

the compensable injury. We agree with this 

finding. 

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 On February 14, 2000, Clem filed another 

change-in-condition claim, alleging temporary total disability 

from November 24, 1999. Attached to the claim was a December 

13, 1999 report from Dr. Weaver, which indicated Clem has severe 

degenerative changes at L5-S1 that require surgery and that are 

related to her compensable injury by accident. At the 

evidentiary hearing, Clem relied upon additional reports from 

Dr. Weaver, including a March 8, 2000 report in which Dr. Weaver 

opined that Clem's right side disc herniation "has little to do 

with her symptomatology." He also opined as follows: 

[W]hether she had a positive MRI on the 

right side at L5-S1 or not is immaterial as 

to whether or not she needs surgery. Her 

surgery is for severe degenerative changes 

at L5-S1 with mechanical/axial pain. She 

does not have symptoms of a unilateral disc 

herniation on the right or left side. Her 

symptoms are mechanical/axial and, 

clinically, she would benefit from a fusion. 

Therefore, the question which remains again 

is, are the severe degenerative changes at 

L5-S1 related to the accident? Since the 

original injury to the L5-S1 disc was 

job-related, then certainly the subsequent 

degenerative changes also must be related; 

and, it is these degenerative changes that 

are causing the majority of her symptoms 

which need surgery. Again, the abnormality 

seen on the MRI on the right side is not the 

primary cause of her symptoms. 

 Dr. Joiner affirmed a statement prepared by Lowes' attorney 

that indicated, "but for the new right-sided disc herniation and 

its resulting disability, . . . Clem [would] be capable of 

returning to work in either her pre-injury position or in a 

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light duty position." At Lowes' request, Dr. Michael Dennis, a 

neurosurgeon, reviewed Clem's medical reports and opined that 

"based on the fact that [Clem] is a smoker the most probable 

cause of the degeneration at the L5-S1 level with secondary 

herniation on the right would be the patient's age and smoking 

history." By contrast, Dr. Weaver further reported that the 

degenerative change was the cause of disability, that the 

"degenerative change for which the surgery is being done is 

related to the original injury," and that "[t]his is in 

distinction to a recurrent herniated disc on the other side 

which possibly could be unrelated to the original event." 

 The deputy commissioner ruled that Clem's current claim was 

not barred by the doctrine of res judicata and found persuasive 

Dr. Weaver's reports that Clem's severe degenerative changes at 

the L5-S1 level were causing Clem's disability and resulted from 

the injury by accident. Rejecting Dr. Dennis' opinion, the 

deputy commissioner found that "he never examined [Clem] and 

reached a number of erroneous conclusions based solely upon his 

review of medical records." The deputy commissioner also 

rejected Dr. Joiner's contrary view. 

 On review, the commission ruled that Lowes "waived" its 

challenge to the deputy commissioner's ruling that Clem "has 

severe degenerative changes at L5-S1 level that were traced to 

the original [injury by] accident and that her right-sided 

defect was incidental rather than a significant finding." 

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Noting that the sole issue on review was whether Clem's 

change-in-condition claim was barred by the doctrine of res

judicata, the commission ruled as follows: 

We find that the issue that was before the 

Commission [on the first claim] is not the 

same as that which was before the Deputy 

Commissioner [on the current claim]. The 

issue decided by the Deputy Commissioner on 

[the first claim], and affirmed by the Full 

Commission . . . , was whether her 

right-sided disc herniation was related to 

the compensable injury. The current issue 

is whether [Clem's] left-sided severe 

degenerative changes at L5-S1 are causally 

related to the accident and whether the 

October 31, 2000 surgery for this condition 

was related to the degenerative changes. 

 We further find that the matter of the 

request for surgery for a right-sided disc 

herniation is not of so similar a nature as 

a request for surgery for severe 

degenerative changes set in motion by the 

left-sided herniated disc as to require that 

it be litigated at the time of the previous 

hearing. We note in support of this 

Dr. Weaver's March 8, 2000, report 

indicating that [Clem's] right-sided disc 

herniation was essentially an irrelevant 

finding and not material as to whether she 

needed surgery for the severe degenerative 

changes at L5-S1 which were causing the 

majority of her symptoms. In addition at 

the time of the previous hearing, there was 

no recommendation for [Clem] to undergo 

surgery for her left-sided degenerative 

changes. To hold otherwise would be 

contrary to the change of condition process 

which allows a party to seek benefits as new 

medical circumstances or other events arise. 

Thus, the commission affirmed the deputy commissioner's award. 

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II. 

 Lowes contends the commission "failed . . . to correctly 

interpret and apply the res judicata bar" principle. We 

disagree. 

 We have held that in a proper case "principles of res

judicata apply to Commission decisions." K&L Trucking Co. v. 

Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Where 

applicable, the principle "bars relitigation of the same cause 

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

between the same parties and their privies." Id. "One who 

asserts the defense of res judicata has the burden of proving by 

a preponderance of the evidence that an issue was previously 

raised and decided by [the commission] in a prior cause of 

action." Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 

503, 505 (1998). 

 A cause of action is instituted by a change-in-condition 

claim. Whitten v. Mead Paperboard, 4 Va. App. 182, 186, 355 

S.E.2d 349, 350 (1987). 

 Code § 65.2-101 defines a "change in 

condition" as "a change in the physical 

condition of the employee as well as a 

change in the conditions under which 

compensation was awarded, suspended, or 

terminated which would affect the right to, 

amount of, or duration of compensation." 

When an employee applies for reinstatement 

of disability benefits based upon a change 

in condition, the commission must determine: 

(1) whether a "change in condition" has 

occurred as defined in Code § 65.2-101, that 

affects the employee's capacity to work, and 

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(2) if so, whether the change is due to a 

condition causally connected with the 

original compensable injury. Where an 

application for a change in condition is 

filed for the sole purpose of presenting 

additional evidence in support of a claim 

that has previously been denied, res

judicata will bar reconsideration of the 

claim. However, res judicata does not bar a 

claim for resumption of benefits when a 

"change in condition," as contemplated by 

the Code, has occurred which has not been 

previously considered by the commission. 

Fodi's, 26 Va. App. at 448-49, 495 S.E.2d at 504 (citations 

omitted). 

 The current change-in-condition claim was based on the 

existence of a severe degenerative change at the L5-S1, which 

the commission found to be the result of Clem's compensable 

injury by accident. The commission's ruling that the evidence 

proved a causal connection between the degenerative changes and 

the original injury by accident is unchallenged. The only issue 

to be resolved under Lowes' defense of res judicata is whether 

the current change-in-condition claim, which relies upon a 

degenerative change at L5-S1 that is related to the original 

compensable injury by accident, "has . . . been previously 

considered by the commission." Id. at 449, 495 S.E.2d at 504. 

 In ruling on the current change-in-condition claim, the 

commission found that the issue decided under the first 

change-in-condition claim "was whether [Clem's] right-sided disc 

herniation was related to the compensable injury." We have held 

"that the commission is entitled to interpret its own orders in 

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determining the import of its decisions . . . and to examine the 

opinion of the deputy commissioner as a whole in order to 

ascertain the result intended." Rusty's Welding Service, Inc. 

v. Gibson, 29 Va. App. 119, 130, 510 S.E.2d 255, 260 (1999). 

Furthermore, the record clearly establishes that the 

commission's opinion on its review of the first 

change-in-condition claim noted that the claim "is based on her 

right-sided disc herniation, which the Deputy Commissioner found 

to be unrelated to the compensable injury." On its review of 

that change-in-condition claim, the commission ruled that Clem 

failed to carry her burden of proving a causal connection 

between the alleged bodily change (i.e., the right-sided disc 

herniation) and the original compensable injury. That failure 

was fatal to her burden to prove a cognizable change in 

condition under Code § 65.2-101. 

 The evidence concerning the first change-in-condition claim 

established that the right-sided herniated disc was a "new" 

injury, which was unrelated to the original compensable injury 

by accident. The evidence concerning the second 

change-in-condition claim established that the degenerative 

changes at L5-S1 resulted from the injury by accident. No 

evidence from either proceeding established that the two claims, 

i.e., the right-sided disc herniation and the degenerative 

changes, were inextricably linked. "The barring of a cause of 

action 'which could have been litigated' is not directed to an 

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unrelated claim which might permissibly have been joined, but, 

to a claim which, if tried separately, would constitute 

claim-splitting." Bates v. Devers, 214 Va. 667, 670-71 n.4, 202 

S.E.2d 917, 920 n.4 (1974). Because the commission's decision 

on the first change-in-condition claim was a final determination 

only on the merits of the issue whether the right-sided disc 

herniation resulted from the original injury by accident, the 

doctrine of res judicata does not bar the current 

change-in-condition claim where the cause of action is based 

upon whether degenerative changes in the L5-S1 were caused by 

the original injury by accident. In short, the current claim 

was not raised by the first change-in-condition claim and was 

not addressed by the medical evidence then before the 

commission. 

 Accordingly, we affirm the commission's award. 

 Affirmed. 

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