COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Richmond, Virginia 

EASTMAN KODAK COMPANY 

v. Record No. 1406-95-2 MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

RICHARD R. STREMOVIHTG MARCH 26, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Richard L. Butler (Anderson & Quinn, on brief), 

 for appellant. 

 No brief or argument for appellee. 

 Eastman Kodak Company appeals the Workers' Compensation 

Commission's decision awarding Richard R. Stremovihtg (claimant) 

temporary total disability benefits from May 5, 1992 through 

May 5, 1994 and all medical expenses. Eastman contends that the 

commission erred by (1) holding that claimant's claim was not 

barred by the two-year statute of limitations under Code 

§ 65.2-708(A), (2) that claimant suffered a change in condition 

beginning May 6, 1992, (3) that Eastman was barred from raising 

the defense of voluntary retirement, and (4) that claimant had 

been referred by his attending physician for certain chiropractic 

treatment. For the following reasons, we affirm in part and 

reverse in part. 

 On June 28, 1991, claimant sustained injuries to his back, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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hip, and thigh in an accident that occurred in the course of his 

employment with Eastman. He received full wages from June 28, 

1991 through November 30, 1991. On December 1, 1991, he 

voluntarily left his job with Eastman in return for enhanced 

retirement benefits. 

 On November 22, 1991, claimant filed a claim with the 

commission for temporary total benefits for his injuries 

resulting from the accident. A hearing was held before Deputy 

Commissioner Tabb on May 5, 1992. On March 16, 1992, Dr. 

Christopher Young, claimant's treating physician, had returned 

the claimant to regular work. At the time of the hearing, 

claimant was also receiving chiropractic care from Dr. Michael D. 

Pollock. 

 Based upon a May 5, 1992 hearing, Deputy Commissioner Tabb 

awarded claimant temporary total disability benefits from July 2, 

1991 through March 16, 1992. The deputy commissioner found that 

Dr. Young had not referred claimant to Dr. Pollock for 

chiropractic treatment, but only had acknowledged that if 

claimant independently sought such treatment it would not 

conflict with his treatment of the claimant. In addition, the 

deputy commissioner stated that he did not "find any indication 

that the claimant took early retirement on December 1, 1991 or 

that he failed to cooperate with vocational rehabilitation 

efforts." The deputy commissioner found that claimant had been 

released to return to work on March 16, 1992, and had not proved 
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that he was thereafter disabled or as of the May 5, 1992 hearing. 

 On June 18, 1992, claimant, alleging a change in condition, 

filed a second claim for benefits. In support of this claim, he 

submitted a report by Dr. Pollock dated May 4, 1992. On July 29, 

1992, an assistant claims examiner informed claimant by letter 

that the commission would take no further action on the second 

claim because Dr. Pollock's report had been addressed by Deputy 

Commissioner Tabb in the May 1992 decision. No further action 

was taken on that claim until August 1994 when claimant submitted 

additional medical documents in support of the June 1992 change 

in condition application. The commission scheduled a hearing for 

November 21, 1994. As a result of that hearing, the commission 

found a change in condition as of May 5, 1992, and awarded 

temporary disability benefits through May 5, 1994, and medical 

benefits. The employer appealed. 

I. Statute of Limitations

 Code § 65.2-708(A) provides that "no [review by the 

commission of an application for a change in condition] shall be 

made after twenty-four months from the last day for which 

compensation was paid, pursuant to an award under this title." 

This Court has interpreted Code § 65.2-708(A) to mean that "the 

change in condition must occur within twenty-four months from the 

date compensation was last due or paid." Armstrong Furniture v. 

Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987). Eastman 

contends that the letter from the assistant claims examiner in 
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July 1992 informing claimant that no further action would be 

taken on his claim constituted a dismissal of the claim, and that 

as a result, claimant did not file his claim within two years of 

March 16, 1992. 

 Workers' Compensation Commission Rule 1.3 provides that an 

employee's claim "may be dismissed upon motion of the employer 

after notice by the Commission to the parties" if the employee 

does not file supporting evidence within ninety days after the 

claim is filed. Although claimant did not file the supporting 

evidence within ninety days, the record does not reveal that 

Eastman filed a motion to dismiss the claim, and even had it done 

so, the commission had discretion whether to grant the motion. 

Furthermore, the commission acted in accordance with the Code by 

adjudicating the claim despite the fact that claimant did not 

produce the additional medical evidence until August 1994. 

Claimant was not required to produce the evidence prior to the 

expiration of the statute of limitations so long as the claim 

alleged a change in condition existing at the time of the filing. 

See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508, 

510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 

675, 678, 401 S.E.2d 213, 215 (1991). Accordingly, the 

commission did not err in holding that the claim was timely 

filed. 

II. Change in Condition

 Eastman next challenges the commission's finding that the 
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claimant "was disabled beginning May 6, 1992." The commission 

stated that: 

 [t]his finding is based upon Dr. Pollock's 

reports of May 4, 1992, and August 12, 1993. 

 In his report of May 4, 1992, he clearly 

indicated that the claimant should not work 

pending further improvement. Dr. Pollock's 

report of August 12, 1993, reflects 

continuing treatment, improvement, and an 

apparent discharge from chiropractic care. 

However, there was no release to return to 

any form of employment. 

In order for the commission to have found that claimant proved a 

change in his condition and that he became disabled on May 6, 

1992, the commission necessarily relied upon, as it stated, the 

May 4, 1992 and August 12, 1993 reports of Dr. Pollock. However, 

the August 12, 1993 letter does not in any way support a finding 

that beginning in May of 1992, the claimant was disabled from his 

pre-injury employment to which he had been previously released. 

Thus, the only other evidence in the record that the commission 

could or did consider to prove that claimant was disabled on May 

6, 1992, was the May 4, 1992 letter. In order to infer from the 

letter of May 4, 1992 that the claimant was disabled on May 6, 

1992, the commission necessarily had to find that claimant was 

disabled on May 4, 1992. However, Deputy Commissioner Tabb ruled 

in his May 1992 opinion that claimant was not disabled on May 4, 

1992. That fact has been finally decided. Thus, although 

claimant could have offered evidence to prove a change in 

condition and disability on May 6, 1992, the August 12, 1993 

report did not do so and the claimant could not prove that he 
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became disabled on May 6, 1992, by attempting to show that he was 

disabled on May 4, by using the identical evidence that had been 

found insufficient. 

 The doctrine of collateral estoppel applies "in a subsequent 

action based upon a collateral and different cause of action." 

Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974) 

(emphasis in original). "Under the principle of collateral 

estoppel, 'the parties to the first action and their privies are 

precluded from litigating [in a subsequent action] any issue of 

fact actually litigated and essential to a valid and final 

personal judgment in the first action.'" Slagle v. Slagle, 11 

Va. App. 341, 344, 398 S.E.2d 346, 348 (1990) (quoting Norfolk & 

W. Ry. v. Bailey Lumber Co., 221 Va. 638, 640, 272 S.E.2d 217, 

218 (1980)). "[A]n appropriate test for determining the identity 

of issues involved in former and subsequent actions is 'whether 

the same evidence will support both actions.'" Allegheny 

Airlines, Inc. v. Merillat, 14 Va. App. 341, 343, 416 S.E.2d 467, 

469 (1992) (quoting Graham v. Virginia Elec. & Power Co., 230 Va. 

273, 277, 337 S.E.2d 260, 263 (1985) (quoting Pickeral v. Federal 

Land Bank, 177 Va. 743, 751, 15 S.E.2d 82, 85 (1941))). 

 Here, Deputy Commissioner Tabb had considered Dr. Pollock's 

report of May 4, 1992, in which Dr. Pollock stated that in his 

opinion claimant was unable to work. Deputy Commissioner Tabb 

relied "more heavily on the opinion of Dr. Young," awarded 

temporary total disability benefits through March 16, 1992, when 
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claimant had been released to return to work, and denied the 

claim for benefits thereafter. Deputy Commissioner Tabb 

necessarily found that claimant was not disabled on May 4, 1992. 

 Therefore, in order for the claimant to prove a change in 

condition after the 1992 decision, the commission was precluded 

from finding that the claimant was disabled on May 4, 1992, 

unless additional evidence not considered at the 1992 hearing 

proved that claimant became disabled on or after that date. 

Consequently, the letter of May 4, 1992 does not support the 

commission's finding that the claimant was disabled on May 6, 

1992. Because the commission's finding that the claimant was 

disabled beginning May 6, 1992 is not supported by credible 

evidence, we reverse the award of temporary total disability 

benefits. 

III. Voluntary Retirement

 At the May 1992 hearing, Eastman argued that claimant was 

barred from recovering disability benefits because he voluntarily 

retired on December 1, 1991, but Deputy Commissioner Tabb held 

that there was no "indication that the claimant took early 

retirement on December 1, 1991." As a result of this finding, 

the deputy commissioner awarded claimant temporary total 

disability benefits through March 16, 1992. Therefore, the 

defense of voluntary retirement was "actually litigated and 

essential to" the May 1992 award. Accordingly, the commission 

did not err in holding that Eastman was collaterally estopped 
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from raising this defense at the November 1994 hearing. Slagle, 

11 Va. App. at 344, 398 S.E.2d at 348 (quoting Bailey Lumber Co., 

221 Va. at 640, 272 S.E.2d at 218). No new evidence was 

presented to prove that the claimant had retired. 
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 IV. Referral

 In the May 1992 opinion, Deputy Commissioner Tabb stated 

that "we do not find that Dr. Young's letter of May 1, 1992 is a 

referral of the claimant for chiropractic treatment but only an 

acknowledgement that the claimant may so independently seek such 

treatment." Nonetheless, the commission held that Eastman was 

responsible for chiropractic treatment rendered by Dr. Pollock 

beginning May 6, 1992. The commission based this holding on a 

letter dated December 2, 1993, in which Dr. Young states that 

"[p]rior to [the claimant's] chiropractic treatment [he] spoke 

with Dr. Michael Pollock concerning [the claimant's] care and 

authorized [the claimant's] care with Dr. Pollock." 

 Deputy Commissioner Tabb's finding that Dr. Young did not 

refer the claimant for chiropractic treatment prior to May 5, 

1992 does not preclude the claimant from proving as part of his 

subsequent claim alleging a change in condition that Dr. Young 

thereafter referred claimant to Dr. Pollock subsequent to May 5, 

1992. See Mace v. Merchants Delivery Moving & Storage, 221 Va. 

401, 405, 270 S.E.2d 717, 719 (1980) (holding that "a change in 

an attending physician's opinion concerning an employee's ability 

to resume work" is sufficient to prove a change in condition). 

Obviously, Dr. Young's letter of December 2, 1993 was not before 

Deputy Commissioner Tabb, nor "available and known" at the time 

of the May 5, 1992 hearing. Cf. Mize v. Rocky Mount Ready Mix, 

Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991) ("Failing 
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to obtain the medical records which were available and known does 

not constitute due diligence."). Dr. Young's letter proves that 

he subsequently referred the claimant to Dr. Pollock, and is 

sufficient to require that we affirm the commission's holding 

that Eastman is responsible for all medical treatment rendered by 

Dr. Pollock beginning May 6, 1992. 

 In summary, we hold that the commission erred by awarding 

claimant temporary total disability benefits, but did not err in 

awarding the medical benefits authorized by the attending 

physician. Therefore, we reverse the commission's decision in 

part and remand with instructions to enter an order consistent 

with this opinion. 

 Affirmed in part,

reversed in part,

 and remanded.