COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Salem, Virginia 

ARAMARK CORPORATION AND 

 NATIONAL RELIANCE INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0921-99-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 14, 2000 

VIRGINIA I. TERRY 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

S. Vernon Priddy, III (Cecil H. Creasey, Jr; 

Sands, Anderson, Marks & Miller, on briefs), 

for appellants. 

(Thomas J. Schilling, on brief), for 

appellee. Appellee submitting on brief. 

Aramark Corporation and its insurer, Reliance National 

Insurance Company ("appellants") appeal from a decision of the 

Workers' Compensation Commission awarding temporary partial 

disability benefits ("TPD") to Virginia I. Terry. On appeal, 

appellants contend 1) that Terry failed to establish a change in 

condition warranting TPD for the period claimed; 2) that the 

commission erroneously found that Terry established a causal 

connection between her claimed disability and the compensable 

injury she sustained; and 3) that the doctrine of res judicata

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
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bars Terry's claim. We agree, and reverse the commission's 

decision. 

BACKGROUND

Terry was employed by Aramark at Randolph-Macon College in 

Ashland, Virginia as a food service worker. While on the job, 

she suffered an injury to her lower back and left knee on May 

16, 1996. Immediately following her accident, Terry sought 

treatment with Dr. Kimberly Smith, who diagnosed her as 

suffering from a lumbar sprain and a sprained knee. Dr. Smith 

noted that Terry had a prior history of back problems and a 

previous injury to her left knee. On May 21, 1996, Dr. Smith 

referred Terry to Dr. Steven Fiore, who met with Terry on May 

23, 1996 and again on June 13, 1996. Dr. Fiore, in turn, 

referred Terry to Dr. William Brickhouse, who examined Terry on 

June 24, 1996, and also took note of her prior back and knee 

problems. 

On September 10, 1996, Dr. Brickhouse reported some 

improvement in Terry's condition and authorized her return to 

work on a Functional Capacity Evaluation form. He noted that 

Terry had worked under certain physical restrictions even prior 

to her accident and that he believed she could work "at least 

[at] that level." He completed a "work status report" in which 

he stated that Terry could work from six to eight hours per day. 

Later, on June 12, 1997, Dr. Brickhouse reported that Terry's 
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total period of disability was from May 23, 1996 through 

September 19, 1996, at which time she was capable of returning 

to work and performing her pre-injury duties. Even on June 17, 

1997, however, Dr. Brickhouse noted that Terry continued to 

suffer from "lumbar disc derangement and synovitis [of] both 

knees." 

On January 8, 1997, Terry filed a claim seeking an award of 

temporary total disability benefits ("TTD") beginning on May 16, 

1996, the date of the accident. At a hearing before the deputy 

commissioner on June 17, 1997, Terry amended her claim by 

dropping her demand for continuing disability benefits. Instead 

she sought TTD for a period ending on February 2, 1997. The 

deputy commissioner issued an opinion on July 22, 1997, awarding 

Terry TTD for the period from May 17, 1996 through August 15, 

1996, and also for the period from November 6, 1996 through 

November 11, 1996. Terry also was awarded TPD for the period 

from November 12, 1996 through February 2, 1997. Appellants 

then sought review from the full commission. 

Upon review, Terry agreed to a stipulation that the 

disability she experienced during the period from November 6, 

1996 through February 3, 1997 was not causally connected to her 

accident of May 16, 1996. The commission accepted this 

stipulation, affirmed Terry's award of benefits through August 
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15, 1996, and reversed the award of benefits for the period of 

November 6, 1996 through February 2, 1997. 

On June 17, 1997, Terry filed a second claim in which she 

alleged a change in condition, and requested ongoing TTD for a 

period beginning on March 27, 1997 and continuing indefinitely. 

The deputy commissioner heard argument on October 6, 1998, in 

which appellants contended that Terry was not disabled during 

the period alleged, that any disability she may have experienced 

during that time was not causally related to her injury, and 

that the relief she sought was barred by her stipulation in the 

prior claim. Terry responded that she had experienced a change 

in condition in the period specified in her claim and that she 

was not barred by her earlier stipulation. Although the 

commissioner found that Terry was only partially disabled for 

the period in question, he nevertheless ruled that Terry had 

established a change in condition and that she was not barred by 

res judicata as a result of her previous stipulation, and 

awarded her TPD for the specified period. The full commission 

affirmed these conclusions, and appellants noted their appeal to 

this Court. 

ANALYSIS

Appellants argue that Terry cannot establish a change in 

condition for the period beginning March 27, 1997 because the 

evidence upon which she relies is a letter from Dr. Brickhouse 
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of May 8, 1997, a document introduced as evidence at the hearing 

on her first claim. Because she stipulated at the hearing that 

her disability at that time was not causally related to her 

industrial accident, appellants contend that Terry cannot rely 

upon the letter to evidence a "change in condition" with respect 

to the period beginning on March 27. We agree. 

Code § 65.2-101(4) defines a "change in condition" as "a 

change in physical condition of the employee as well as any 

change in the conditions under which compensation was awarded, 

suspended, or terminated which would affect the right to, amount 

of, or duration of compensation." See Fodi's v. Rutherford, 26 

Va. App. 446, 448, 495 S.E.2d 503, 504 (1998). King's Market v. 

Porter, 227 Va. 478, 317 S.E.2d 146 (1984), controls the 

determination of whether Terry's claim qualifies under Code 

§ 65.2-101(4) as a "change in condition" sufficient to warrant a 

resumption of disability benefits. In King's Market, the 

Virginia Supreme Court set forth a two-pronged test for 

reinstating disability benefits where the employer seeks to 

terminate benefits on a change of condition application because 

the disability has ceased. 

[T]he only question is whether the 

employee's prior condition of work 

incapacity has changed; the question of 

causal connection is not an issue. On the 

other hand, when an employee files an 

application for reinstatement of disability 

benefits, two questions arise: 1) has there 

been a change in the employee's capacity to 
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work; 2) if so, is the change due to a 

condition causally connected with the injury 

originally compensated. 

Id. at 483, 317 S.E.2d at 148; see Hercules, Inc. v. Carter, 13 

Va. App. 219, 223, 409 S.E.2d 637, 639-40 (1991). 

Terry's change in benefit status clearly fails the first 

prong of the test. The only change she has asserted is that she 

"went from a period of not receiving workers' compensation to a 

change in that condition, as she sought temporary total 

disability beginning March 27, 1997." Such a change in benefit 

status has no bearing upon the claimant's capacity to work. 

Furthermore, Terry's disability failed to satisfy the second 

prong of the King's Market test. Nothing in Terry's medical 

records after the date of the hearing on the first claim 

demonstrates a "change due to a condition causally connected 

with the injury" for which she originally sought compensation. 

King's Market, 227 Va. at 483, 317 S.E.2d at 148. Indeed, Dr. 

Brickhouse outlined the history of Terry's treatment with him in 

a letter to the commission, dated May 8, 1997, and confirmed 

that as of the date of the letter Terry continued to experience 

back and knee pain which he attributed to 1) degenerative disc 

and joint disease of the lumbar spine, and 2) mild degenerative 

changes in her knees. Dr. Brickhouse also stated in a note 

dated June 17, 1997, that Terry complained of continued knee 

pain, and he reported that she had not returned to work since 
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November, 1996, because of her knee and back problems. Terry's 

statements, reported by Dr. Brickhouse, demonstrate that her 

disability following March 27, 1997 was the same as that which 

she experienced in the period from November, 1996 through 

February 2, 1997, which, by stipulation, she conceded was not 

causally connected to her industrial accident. Her condition 

therefore remained unchanged from the first period to the 

second. 

Finally, Terry's claim of disability in the second 

proceeding is barred by the doctrine of res judicata. See

Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128, 

510 S.E.2d 255, 259 (1999) (en banc) (res judicata applies to 

decisions of the commission); Allegheny Airlines, Inc. v. 

Merillat, 14 Va. App. 341, 343-44, 416 S.E.2d 467, 469 (1992) 

(where claims relate to different periods of time and the claim 

in the second proceeding is supported by different evidence than 

was offered in the first proceeding, res judicata does not 

apply). 

Although Terry's second claim relates to a different period 

of time than that claimed in the first proceeding, the medical 

evidence she offered in the second proceeding was identical to 

that offered in the first proceeding, viz. the May 8, 1997 

letter from Dr. Brickhouse. Her claim is thus barred by res 
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judicata. See Merillat, 14 Va. App. at 343-44, 416 S.E.2d at 

469. 

For the foregoing reasons, we reverse the decision of the 

commission. 

 Reversed.