COURT OF APPEALS OF VIRGINIA
Present: Judges Frank , Kelsey and McCullough Argued at Salem , Virginia
BILLY JOE BROCK OPINION BY v. Record No. 0428

- 11

- 3 JUDGE D. ARTHUR KELSEY NOVEMBER 1, 2011 VOITH SIEMENS HYDRO POWER GENERATION

AND LIBE RTY MUTUAL FIRE INSU RANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Wesley G. Marshall (Law O ffices of Wesley G. Marshall, PLC , on brief ) , for appellant. Wade T. Anderson ( John C. Johnson ; Jonas A. Callis ; Frith Anderson & Peake, P.C. , on brief), for appellee s . Amicus Curiae : Vir ginia Trial Lawyers Association ( Craig B. Davis ; Gregory O. Harbison ; Emroch & Kilduff, LLP; Harbison Law Firm, P LLC, on brief), for appellant.
Billy Joe Brock appeals a decision of the Virginia Workers ’ Compensa tion Commission barring him from litigating injuries he alleged in his initial claim but did not raise at his evidentiary hearing . Brock contends the commission misapplied the res judicata doctrine as a matter of law. We disagree and affirm.
I. Brock wa s injured at work in January 2007. He filed a workers ’ compensation claim in July 2007 seeking benefits for injuries to his shoulder, back , and hip s . Represented by counsel, he amended his claim in November 2007 to allege additional injuries to his head and l eg. A deputy commissioner scheduled a hearing on his claim and warned Brock’s counsel: “ All issues will be considered at the upcoming November 20, 2007 hearing at 10:30 a.m. in Covington.” App. at 8 (emphasis added). Brock’ s counsel requested a co ntinuance, alleging s he “did not- 2

- anticipate re c eiving th e necessary documentation” prior to the scheduled hearing. Id. at 9. The
commission continue d the hearing to March 2008.

A. T HE F IRST H EARING At th e first evidentiary hearing, Brock and the emp loyer stipulated he had injured his left
shoulder in the accident

. Represented by counsel, Brock produced no evidence of any other injuries and did not request additional time to develop such evidence . Nor did he ask the deputy
commissioner to reserv e ju risdiction to consider additional evidence at some later date

. After the hearing, t he deputy comm issioner entered an award order stating the claim “before the Commission” was the original claim filed by Brock in July 2007, as later amended by counsel in November 2007. Id. at 56. The order awarded Brock temporary, total compensation and medical benefits for the “stipulated” injury to Brock’s left shoulder. Id. at 57, 61. After making this award, the order concluded: “ This claim is hereby dismissed, an d is ordered removed from the hearing docket. ” Id. at 61. The order also advised both parties of their right to appe al the decision. Neither Brock nor the employer appealed the order to the full
commission.

B. T HE S ECOND H EARING Four months later, in July 2008, Brock’s counsel filed a letter seeking “additional benefits” for injuries to his hip, back, and legs arising out of the same accident

. 1 Id. at 62. The deputy commissioner acknowledged Brock’s “new” claim and scheduled a hearing to address it.
Id. at 78. Brock appeared a t the hearing without counsel. At the end of the hearing, the employer’s counsel pointed out the “new” injuries were alleged in the original amended claim

. Id. at 157. The employer contended these matters were “abandoned” at the earlier evidentiary

1 Brock later filed a pro se claim in February 2009 seeking benefits for injuries to his back, head, shoulder, leg, and hip.- 3

- hearing and questioned whether “they can properly be considered at this junction of the proceedings.” Id.
I n a second award order, the deputy commissioner held Brock had “abandoned” any
claim for injuries beyond the stipulated l eft shoulder injury by not presenting evidence of such injuries at the first evidentiary hearing in March 2008. Id. at 183. T he deputy commissioner , however, declined to apply res judicata because Brock’s aband onment, she reasoned, “ was in
effect a non

- s uit” of those aspects of his claim. Id.

C. R EVIEW BY THE F ULL C OMMISSION The employer appealed this second order to the full commission on several ground s , including an argument that the deputy commissioner “wrongly decided that principles of res judica ta do not bar the claims for injuries to the back, hips and legs.” Id. at 198. Citing K & L Trucking Co. v. Thurber , 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985), the employer argued res judicata applied to worker s’ compensation awards and barred reli tigation of matter s that either were previously litigated or “could have been litigated” at the prior evidentiary hearing. App. at 198. On review of the deputy commissioner’s second order , the commission agreed with the employer and held res judicata barr ed Brock’s allegedly new claim for injuries to his back, hips, and legs

. Brock v. Voith Siemens Hydro Power Generation, Inc. , 2011 Va. Wrk. Comp. L EXIS 42 , at * 16

- 17 (Jan. 26, 2011). “The Deputy Commissioner’s [first] award wa s not appealed and
became fi nal, ” i d. at * 14 , the commission noted . “Nothing more was necessary to settle the rights of the parties regarding the compensability of the injuries alleged in the claimant’s application, and there was a final adjudication on the issues raised in the appl ication.” Id. “It is critical to note,” the commission explained, “that res judicata bars not only matters which were actually litigated in a prior proceeding, but also bars matters which could have been- 4

- litigated i n the prio r proceeding.” Id. at * 10 . T o hold otherwise, the commission concluded , would permit Brock, “as long as he did so within the statute of limitations” to “file four separate applications, one for his back, one for his legs, one for his head and one for his hips, and then litigate each application at four separate hearings.” Id. at * 16

. Doing so would “waste considerable time and expense on the part of the Commission” and do nothing to bring an “end to litigation and the prevention of harassment to the parties.” Id. “There is simply no conceivable public policy ,” the c ommission reasoned, “ which would be furthered by allowing such piecemeal adjudication of claims.” Id.

I I

. On appeal, Brock argues r es judicata does not apply because there was “no real adjudication on the merits of t he claims for additional injuries” at the first hearing . Appellant’s Br. at 8. He also claims the 2008 award order was not a “final adjudication” because it “did not address the claims for additional injuries” and “did not mention the claims for injuries to the back, head, leg, and hip.” Id. at 11. Like the commission, we disagree with these two closely
related assertions

. 2
T wo distinct concepts

— issue preclusion and claim preclus ion

— are “collectively
referred to as ‘ res judicata .’” Taylor v. Sturge ll , 553 U.S. 880, 892 (2008). Issue preclusion bars “‘successive litigation of an issue of fact or law actually litigated and resolved in a valid

2 On brief, Brock also argues the commission failed to address whether the employ er “invited error” on the res judicata issue, failed to decide whether the “head injury” was barred by res judicata , erred in reversing a portion of the deputy commissioner’s award on which the employer did not seek review, and violated his constitutional due process rights. Appellant’s Br. at 3 (assignments of error 2, 4, 5, 6 ). Because Brock made none of these arguments to the commission, it had no opportunity to address them. Under Rule 5A:18, no argument advanced on appeal “as a basis for reversal” c an be raised f or the first time on appeal. See Williams v. Gloucester Sheriff’s Dep’t , 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003 ); Hodnett v. Stanco Masonry, Inc. , 58 Va. App. 244, 248

- 49, 708 S.E.2d 429, 432 (2011). The record suggests no basis for in voking the good cause or ends

- of

- justice exceptions to Rule 5A:18.- 5

- court determination essential to the prior judgment,’ even if the issue recurs in the context of a
different claim.” Id. (quoting New Hampshire v. Maine , 532 U.S. 742, 748

- 49 (2001 ) ). Often
called “ collateral estoppe l,” issue preclusion bars parties from litigating in a subsequent suit “ any issue of fact actually litigated and essential to a valid and final per sonal judgment in the first
action.” Rawlings v. Lopez , 267 Va. 4, 4

- 5, 591 S.E.2d 691, 692 (2004) (citation omitted). In contrast, claim preclusion bars “successive litigation of the very same claim, whether or not relitigation of the claim raises the sa me issues as the earlier suit.” Taylor , 553 U.S. at 892 (quoting New Hampshire , 532 U.S. at 748 ). Called “merger” when the claimant wins the first suit and “bar” when the claimant loses , claim preclusion treats unasserted claims as being
subsumed into th e disposition of related, previously adjudicated, claims arising out of the same
cause of action

. See Restatement (Second) of Judgments §§ 18, 19 (1982)

. Virginia’s application of the claim preclusion component of res judicata was best stated a century ag o: “Every litigant should have opportunity to present whatever grievance he may have” but if given an opportunity to do so and “ having failed to avail himself of it, he must accept the consequences.” Miller v. Smith , 109 Va. 651, 655, 64 S.E. 956, 957 (1 909). Thus, the “effect of a final decree is not only to conclude the parties as to every question actually raised and decided, but as to every claim which properly belonged to the subject of litigation and which the parties, by the exercise of reasonable diligence, might have raised at the time.” Smith v.
Holland , 124 Va. 663, 666, 98 S.E. 676, 677 (1919) (citing Diamond State Iron Co. v. Alex K. Rarig & Co. , 93 Va. 595, 25 S.E. 894 (1896); Miller , 109 Va. at 651, 64 S.E. at 956). Claims precluded by res judicata include those “made or tendered by the pleadings , ” as well as those “incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered.” Lofton Ridge, LLC v.
Norfol k S. Ry. , 268 Va. 377, 381, 601 S.E.2d 648 , 650 (2004) (quoting Kemp v. Miller , 166 Va.- 6

- 661, 674

- 75, 186 S.E. 99, 103

- 04 (1936))

. This “could

- have

- litigated

- should

- have

- litigated principle,” Va. Imps

. Ltd. v. Kirin Brewery of Am., LLC , 50 Va. App. 395, 41 0 n.6, 650 S.E.2d 554, 561 n.6 (2007), finds its roots in the earliest Virginia precedents 3 and was recently incorporated in to Rule 1:6 (a), which restates the general rule that , when applicable, claim preclusion applies “ whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought.” These principles apply to worker s’ compensation cases. See Rusty’s Welding Serv., Inc. v. Gibson , 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) ( en banc ) (confirming res judicata applies “to decisions of deputy commissioners and the full commission”). In one of our first opini ons, we held “ the relationship of the Commission to an award is that of a court to a judgment during the term at which it is rendered.” Thurber , 1 Va. App. at 219 , 337 S.E.2d at 302 . A “contested matter before the Commission,” we explained , involves an “ assertion o f particular legal rights which have arisen out of a definable factual transaction.” Id. at 220 , 337 S.E.2d at 302

. It follows that a final award “bars relitigation of the same cause of action, or any part thereof which could have been litigat ed between the same parties and their privies.” Id. at

3 See , e.g. , S

. R y . v. Wash. , A lex. & M t . V ernon R y. , 102 Va. 483, 491, 46 S.E. 784, 787 (1904) (recognizing res judicata applies “t o every point which properly belonged to the subject of l itigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” ( citation omitted) ); McCullough v. Dashiell , 85 Va. 37, 41, 6 S.E. 610, 612 (1888) ( applying res judicata to any matter “ within the legitimate scope of the pleadings in the first suit ” which “ might have been presented at that trial” (citations omitted)); Withers’ Adm’r v. Sims , 80 Va. 651, 660

- 61, 1885 Va. L EXIS 105, at *18

- 19 (1885) ( applying res judicata to any matter “which might have been offered t o sustain the particular claim or demand litigated in the prior action ” (citations omitted)); Blackwell’s Adm’r v. Bragg , 78 Va. 529, 541, 1884 Va. L EXIS 28, at *21 (1884) ( “ It is not only final as to matters actually determined, but as to every other matt er which the parties might litigate in the cause, and which they might have had decided.” (citation omitted) ); Shenandoah V alley R. R. v. Griffith , 76 Va. 913, 925, 1882 Va. L EXIS 93, at *20

- 21 (1882) ( applying res judicata “ to all matters which existed at the time of giving the judgment

. . . and which the party had the opportunity of bringing before the court”).- 7

- 219 , 337 S.E.2d at 302 (emphasis added). The commission, consistent with its own precedent , 4 correctly held the merger principle of res judicata claim preclusion applies to matters that could have be en raised in the earlier proceeding in addition to those that were actually raised

. The question remains whether this principle should apply to the award order entered after
the first hearing . We agree with the commission on this issue as well. On appeal , Brock concedes the barred allegations of injury “could have been adjudicated” at the first hearing. Oral Argument Audio 00:53 to 00:57. The record fully supports this concession. Before the hearing, Brock specifically alleged injuries to his shoulder, back, hips, head, and leg. In an abundance of caution, the commission warned Brock that “[a]ll issues” would be considered at the first hearing. App. at 8. In response, Brock’s counsel requested and received a lengthy continuance

to better prepare his case. F or reasons indiscernible from the record, however , Brock limited his presentation at the hearing to the stipulate d left shoulder injury

. T he commission understandably rejected its deputy’s post hoc interpretation of the award
order as “in effect a non - suit” that preserved all pled , but nonetheless “abandoned ,” aspects of
Brock’s claim

. See App. at 183. Nothing in the record suggests Brock ever sought to withdraw
any portion of his claim. Nor did he at any time ask the deputy commissioner to hold open the evidentiary record to later consider allegations of other injuries. And even if the text of the order could arguably bear such a cons truction, the full commission nonetheless “ is entitled to interpret its own orders in determining the import of i ts decisions” for purposes of res judicata

. Rusty’s

4 See , e.g. , Holmes v. Myers Plumbing & Heating, Inc. , VWC No. 221

- 04

- 40 ( Jan. 30, 2008) (holding res judicata applies when claimant “ was aware of a ‘cause of action’ that could have been litigated at the time of the first Hearing, and he specifically failed to include it ”); see generally Bulla v. A & M Invs., Inc. , 2010 Va. Wrk. Comp. L EXIS 757, at *6 ( Dec. 1, 2010); Reyes v. Kings Constr., Inc. , 2 009 Va. Wrk. Comp. L EXIS 73, at *3 ( Dec. 17, 2009); Waller v. Blue Ridge Nursing Ctr. , 2009 Va. Wrk. Comp. L EXIS 455, at *6 ( Oct. 7, 2009); Bright v. Norton Cmty. Hosp. , 2009 Va. Wrk. Comp. L EXIS 575, at *2

- 3 ( Jan. 26 , 2009), aff’d , 2009 Va. App. L EXIS 382 ( Sept. 1, 2009); Bright v. Norton Cmty. Hosp., Inc. , 2008 Va. Wrk. Comp. L EXIS 369 , at *10

- 11 ( June 19, 2008).- 8

- Weldin g Serv., Inc. , 29 Va. App. at 130 , 510 S.E.2d at 260 ; see also Hodnett v. Stanco Masonry,
Inc. , 58 Va. App. 244, 249, 708 S.E.2d 429, 432 (2011) (“The commission determines the nature
of its orders and rulings.” ) ; Lowes of Christiansburg v. Clem , 37 Va. App. 315, 323, 557 S.E.2d 745, 748 (2002) (recognizing the commission’s authority “to examine the opinion of the deputy commissioner as a whole in order to ascertain the result intended” (citation om itted) ).
W orker s’ compensation cases , of course, cannot always be concluded in a single evidentiary hearing. F or just this reason, the commission has tailored the application of res judicata to take into account allegations of injury that, while pled in t he initial claim, may
nonetheless not be ripe for final adjudication. T he commission , for example, has the authority to
defer for later determination “premature” issues unripe for adjudication , Brown v. United Airlines, Inc. , 34 Va. App. 273, 2 80

- 81 , 540 S.E.2d 521, 524

- 25 (2001) , and frequently allows
claimants “ to voluntarily withdraw [a] claim before the record has closed and the matter has been submitted to a Dep uty Commissioner for a decision,” Jenkins v. Webb , 47 Va. App. 404, 407, 624 S.E.2d 115, 11 6

- 17 (2006) (quoting Webb v. Jenkins , 2005 Va. Wrk. Comp. L EXIS 249, at *2 (Mar. 31, 2005))

. Brock, however, took advantage of none of these protective measures. Instead, after being warn ed of the necessity of addressing “[a]ll issues” raised in his clai m, App. at 8, he attended the evidentiary hearing and limited his presentation to a stipulated left shoulder injury.
Brock does not contend he was denied a full and fair opportunity to assert all of his alleged injuries

. Nor does he offer any explanation for failing to do so. He simply asserts the right to litigate the case on an injury

- by

- injury basis at separate hearings with each resulting in separate award orders. Like the commission, we are unaware of any “conceivable public policy which would be f urthered by allowing such piecemeal adjudication of claims.” Brock , 2011 Va. Wrk. Comp. L EXIS 42 , at * 16

.- 9

- III.
Because the commission applied settled principles of res judicat a to bar Brock from litigating matters he neglected to raise at his earlier evi dentiary hearing, we affirm

.

Affirmed

.