COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

UNITED AIRLINES, INC. 

 OPINION BY 

v. Record No. 0313-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 7, 2000 

MARK F. KOZEL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Steven T. Billy (Pierce & Howard, P.C., 

 on brief), for appellant. 

 Nikolas E. Parthemos (Parthemos & Bryant, 

P.C., on brief), for appellee. 

 United Airlines, Inc. ("employer") contends the Workers' 

Compensation Commission ("commission") erred in awarding 

temporary total and medical benefits to Mark F. Kozel 

("claimant"). On appeal, employer argues that claimant is 

barred from receiving additional benefits on his claim because 

he entered into a full settlement agreement of this claim in 

Illinois. We hold that this case is controlled by Thomas v. 

Washington Gas Light Co., 448 U.S. 261 (1980), and affirm the 

commission's decision. 

I. BACKGROUND

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

favorable to the claimant, who prevailed before the commission." 

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 
335, 340 (1998) (citations omitted). "'Decisions of the 

commission as to questions of fact, if supported by credible 

evidence, are conclusive and binding on this Court.'" Id.

(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 

229, 409 S.E.2d 824, 826 (1991)). "'The fact that there is 

contrary evidence in the record is of no consequence.'" Id.

(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 

407 S.E.2d 32, 35 (1991)). 

 Claimant was employed as a pilot for employer on August 5, 

1992. While en route from Phoenix, Arizona to Washington, D.C., 

his plane was struck by lightning. Claimant felt an electrical 

charge in his right leg. He had resulting paresthesia and 

weakness in that leg. 

 The parties stipulated that claimant filed a claim for 

benefits in Virginia, received benefits under that claim and 

that an award order was issued. Claimant also filed a claim for 

benefits in Illinois, the location of employer's base of 

operations. 

 The parties further agree that: (1) claimant suffered a 

change in condition and that change in condition caused him to 

be totally disabled from employment beginning January 31, 1999; 

(2) the change in condition and the treatment therefor is 

causally related to the August 5, 1992 accident; (3) the parties 

entered into a settlement contract in Illinois; (4) claimant was 

represented by counsel in Illinois through negotiation, 

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acceptance and approval of the settlement; (5) the settlement 

contained language that settled all claims arising from this 

accident and specifically included the existing, concurrent 

Virginia claim; (6) claimant accepted and received benefits 

under the Illinois settlement and the Virginia claim; and (7) 

neither party submitted the Illinois settlement documents to the 

Virginia Workers' Compensation Commission for approval as 

required by Code § 65.2-701. 

 Employer argued before the deputy commissioner that 

Virginia was required to give full faith and credit to the 

Illinois settlement that excluded any further Virginia payments. 

In the alternative, it argued that the commission should have 

approved the Illinois settlement or allowed employer credit for 

the benefits received by claimant in Illinois. The deputy 

commissioner retroactively approved the Illinois settlement and 

denied claimant's request for temporary total benefits from 

January 31, 1999 and continuing, never reaching the full faith 

and credit issue. Claimant appealed the deputy commissioner's 

decision to the full commission. 

 In addressing the issue of full faith and credit, the 

commission declined to allow the findings of another state's 

administrative law agency interpreting and applying its own 

workers' compensation law to control Virginia's claim procedure. 

Using the United States Supreme Court's decision in Thomas, 448 

U.S. 261, the commission reasoned that "one State has no 

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legitimate interest within the context of the federal system in 

preventing another State from granting a supplemental award of 

compensation benefits, when the second State would have had the 

power to apply its workers' compensation law in the first 

instance." Illinois approved the 1998 settlement in the context 

of Illinois law, not Virginia's workers' compensation law. The 

commission stated that Illinois had no power to include the 

language specifically settling the claimant's Virginia claim 

and, thus, the commission was not required to give full faith 

and credit to the Illinois settlement. 

 Employer also argued that the commission should have 

approved the 1998 Illinois settlement. The commission refused 

to retroactively approve the Illinois settlement pursuant to 

Code § 65.2-701(A) which requires all parties to be in agreement 

before any settlement can be approved. The commission awarded 

Kozel "temporary total disability benefits beginning January 31, 

1999, and continuing until a change in condition warrants 

reconsideration thereof." However, the commission granted 

employer's request for a dollar for dollar credit of the amount 

paid pursuant to the settlement. 

II. Full Faith and Credit

 Employer contends the Illinois settlement, barring further 

consideration of claimant's application for change in condition 

benefits in Virginia, should be afforded full faith and credit 

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by the commission.1 In support, employer cites Osborne v. 

Osborne, 215 Va. 205, 207 S.E.2d 875 (1974). "'The 

constitutional mandate, as implemented by Congress, requires 

every state to give a foreign judgment at least the res judicata

effect which the judgment would be accorded in the state which 

entered it.'" Id. at 208, 207 S.E.2d at 879 (quoting Durfee v. 

Duke, 375 U.S. 106, 109 (1963)). However, before accepting 

another state's judgment, each state must determine if the 

underlying state used a factual determination in arriving at the 

judgment. "[T]here emerges the general rule that a judgment is 

entitled to full faith and credit . . . when the second court's 

inquiry discloses that those questions have been fully and 

fairly litigated and finally decided in the court which rendered 

the original judgment." Durfee, 375 U.S. at 111. In the 

instant case, there is no evidence the Illinois Industrial 

Commission (IIC) made any factual finding prior to its approval 

of the settlement. The only finding of any kind was the generic 

language used at the bottom of the settlement order that the 

lump sum settlement was in the best interests of the parties and 

should be approved. This finding concerns only the application 

of the Illinois Workers' Compensation Act and is insufficient to 

 1

 Employer also argues that the principle of equitable 

estoppel bars the claimant from withdrawing his consent to the 

settlement. Employer argues this issue was preserved by inference 

in the deputy commissioner's opinion. After review of the record, 

we find the employer's equitable estoppel argument was not 

preserved and is barred by Rule 5A:18. 

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require the Virginia commission to give full faith and credit to 

the Illinois award. See Thomas, 448 U.S. at 281-82. 

 Employer next contends that the rationale of Thomas does 

not control the instant case. In Thomas, claimant received 

benefits under an award in Virginia and sought further benefits 

in the District of Columbia. The benefits were not duplicative, 

and no agreement had been reached regarding benefits available 

to claimant in either state. 448 U.S. at 264–66.2 In the 

instant case, claimant entered into an agreement in Illinois 

with employer. That agreement was approved by the IIC settling 

 2

 We note that while neither side in the instant case argued 

the rule set forth in Industrial Comm'n of Wis. v. McCartin, 330 

U.S. 430 (1944), it applies to precisely the situation here. 

McCartin, one of a trilogy of Supreme Court cases on workers' 

compensation and full faith and credit, held that successive 

awards in different states are permitted; however, double recovery 

is not. This is the accepted application of McCartin in most 

states. See also Lowery v. Industrial Commission of Arizona, 597 

P.2d 1011 (Ariz. 1979) (when employee is otherwise entitled to 

benefits in Arizona, he will not be barred by a prior 

"nonexclusive" award in another state, but his recovery will be 

offset by the amount of the prior award); Martin v. L. & A. 

Contracting Co., 162 So.2d 870 (Miss. 1964) (more than one statute 

can apply to a single compensable injury, so long as each state 

has a relevant interest in the case; successive awards can be made 

in different states, deducting the amount of the first award from 

the second); Gulf Interstate Geophysical/Gulf Interstate Piping v. 

Industrial Commission, 555 N.E.2d 989 (Ill. App. Ct. 1990) (a 

final award of workers' compensation benefits in Indiana did not 

preclude claimant from seeking supplemental award for same injury 

under Illinois workers' compensation law); and Landry v. Carlson 

Mooring Service, 643 F.2d 1080 (5th Cir. 1981) (full faith and 

credit did not require that judicially approved settlement of 

employee's Texas workers' compensation claim bar his subsequent 

assertion of claim under Longshoremen's and Harbor Workers' 

Compensation Act). 

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his rights under his Illinois claim. The agreement also 

included language that attempted to settle his future Virginia 

rights. Employer argues that the claimant gave Illinois the 

right and authority to terminate any future Virginia claims, 

including a change of condition request. We disagree. 

 The United States Supreme Court in Thomas stated: "To be 

sure, . . . the factfindings of state administrative tribunals 

are entitled to the same res judicata effect in the second State 

as findings by a court. But the critical differences between a 

court of general jurisdiction and an administrative agency with 

limited statutory authority forecloses the conclusion that 

constitutional rules applicable to court judgments are 

necessarily applicable to workmen's compensation awards." 448 

U.S. at 281-82. 

 In its decision, the commission found: 

As shown by the document itself, this 

process involved the submission of a signed 

agreement reflecting the terms of the 

agreement, but there were no specific 

findings of fact or conclusions of law. 

There is no evidence regarding the basis 

upon which the Illinois Commission reviewed 

this information and reached its 

determination. Ultimately, it determined 

that the settlement--under Illinois law--was 

legally in the claimant's best interest. 

The Illinois Commission did not purport to, 

and could not have adjudicated the 

appropriateness of the proposed settlement 

under the laws of Virginia. Nonetheless, 

the Illinois Commission approved language in 

the settlement agreement that purported to 

foreclose the claimant's right to seek 

further relief before the Virginia 

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Commission. This is a determination that 

the Illinois Commission had no power to 

make. Accordingly, pursuant to the Supreme 

Court's decision in Thomas, we are not bound 

by the Illinois Order under principles of 

comity. 

We agree with the commission's reasoning. 

III. Retroactive Approval of the Illinois Settlement

 Employer next contends the commission should have approved 

the 1998 Illinois settlement. The commission refused to 

retroactively approve the Illinois settlement pursuant to Code 

§ 65.2-701(A),3 which requires all parties to be in agreement 

before any settlement can be approved. Claimant did not consent 

to the commission's approval of the Illinois settlement, see

Damewood v. Lanford Bros. Co., 29 Va. App. 43, 509 S.E.2d 530 

(1999), and in fact seeks continuing benefits. Without 

agreement between the parties, the commission declined to 

approve the settlement. See id. at 47, 509 S.E.2d at 532. We 

affirm this finding. 

IV. Credit

 The purpose of the Workers' Compensation Act is to 

compensate a claimant for lost wages and medical benefits. It 

is not the purpose of the Act to allow a claimant to be unjustly 

 3

 Code § 65.2-701(A) states "If after injury or death, the 

employer and the injured employee or his dependents reach an 

agreement in regard to compensation or in compromise of a claim 

for compensation under this title, a memorandum of the agreement 

in the form prescribed by the Commission shall be filed with the 

Commission for approval." 

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enriched. The commission granted employer's affirmative request 

for a dollar for dollar credit, in the full amount of the 

settlement paid to claimant in Illinois. The employer is 

entitled to credit for payments made in another state for the 

same accident and the same injuries. See Harris v. Otis 

Elevator, 73 VWC 223, 225 (1994); Cook v. Minneapolis Bridge 

Construction Co., 43 N.W.2d 792 (Minn. 1950); Spietz v. 

Industrial Comm'n, 28 N.W.2d 354 (Wis. 1947). 

 For the foregoing reasons and finding no error, we affirm 

the commission's finding. 

 Affirmed.

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