Tuesday 18th 

 August, 1998. 

Rusty's Welding Service, Inc. and 

 Harleysville Mutual Insurance Company, Appellants, 

 against Record No. 2552-97-1 

 Claim No. 173-33-21 

Edward Wayne Gibson, Appellee. 

Upon a Petition for Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

 Elder, Bray, Annunziata, Overton, Bumgardner and Senior Judge Baker* 

On July 21, 1998 came the appellee, by counsel, and filed a 

petition praying that the Court set aside the judgment rendered herein 

on July 7, 1998, and grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on July 7, 1998 is stayed 

pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellee shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 
 -2- 

____________________ 

 *Judge Baker participated in the decision of this petition 

for rehearing en banc prior to the effective date of his retirement on 

July 31, 1998 and thereafter by his designation as senior judge 

pursuant to Code § 17-116.01. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

RUSTY'S WELDING SERVICE, INC. AND 

 HARLEYSVILLE MUTUAL INSURANCE COMPANY 

 OPINION BY 

v. Record No. 2552-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 7, 1998 

EDWARD WAYNE GIBSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 S. Vernon Priddy, III (Sands, Anderson, 

Marks & Miller, on brief), for appellants. 

 No brief or argument for appellee. 

 Rusty's Welding Service, Inc. (employer) appeals the 

commission's award of benefits to Edward Wayne Gibson (claimant). 

 Employer contends the award is barred by principles of res

judicata and that the award improperly required employer 

simultaneously to pay permanent partial disability (PPD) and 

temporary partial disability (TPD) benefits. We agree with 

employer's claim of res judicata, and reverse. 

 While carrying a bottle of acetylene on November 12, 1994, 

claimant sustained an injury by accident to his back. Employer 

accepted the injury as compensable and paid benefits. In 

applications filed July 16, 1996 and October 29, 1996, claimant 

sought an increase in TPD benefits, an order holding employer 

responsible for medical expenses for claimant's left knee, and an 

award of PPD benefits for a 40% impairment to claimant's left 

leg. All of claimant's requests were based upon the medical 
 -4- 

opinion of Dr. Gurpal S. Bhuller. 

 After an on-the-record review, Deputy Commissioner Gorman 

issued an opinion on March 4, 1997, in which he wrote that Dr. 

Bhuller did not adequately explain how claimant's leg injury was 

caused by the compensable back injury. Deputy Commissioner 

Gorman also noted that Dr. Bhuller did not explain that the 40% 

leg impairment was permanent or that claimant had reached maximum 

medical improvement. He wrote that, "on the evidence before us 

we cannot conclude that maximum medical improvement has been 

reached and accordingly deny permanent partial disability 

benefits at this time." Deputy Commissioner Gorman ordered 

employer's insurance carrier to submit a report showing 

claimant's earnings and employer's payments to claimant, and 

concluded as follows: 

 Accordingly, the claimant's application is 

DENIED insofar as it has requested permanent 

partial disability benefits for the left leg 

and is DENIED to the extent requesting 

payment for medical treatment to the left 

knee. In all other respects, the claimant's 

application is continued on the Dispute 

Resolution Docket in accordance with the 

provisions of this opinion with the carrier 

to comply with the ORDERS stated above. 

Neither party sought review of this opinion. 

 On April 9, 1997, claimant filed another application seeking 

PPD benefits for a 40% impairment in his left leg. In support of 

his application, claimant submitted an additional opinion of Dr. 

Bhuller explaining claimant's 40% impairment in his left leg and 

stating that claimant had reached maximum medical improvement. 
 -5- 

In an opinion filed May 29, 1997, Deputy Commissioner Link 

awarded claimant PPD benefits for a 40% loss of use of his left 

leg. Deputy Commissioner Link ordered employer to pay claimant a 

lump sum of $25,767.70 in accrued benefits. 

 On review, the commission acknowledged that Dr. Bhuller's 

opinion submitted in support of the May 29, 1997 award "was not 

based on a contemporaneous evaluation but represented a more 

complete discussion of the basis for the disability rating." The 

commission also acknowledged that the issue addressed in the May 

29, 1997 opinion was identical to the issue addressed in the 

March 4, 1997 opinion. The commission held as follows: 

 [T]he issue was not determined with finality. 

 The Deputy Commissioner specifically stated 

that, based "on the evidence before us," 

permanent partial disability benefits were 

denied "at this time" [emphasis added]. The 

Commission interprets the Opinion of March 4, 

1997, to have left the issue of permanent 

partial disability unresolved for future 

determination. 

The commission also held that it had discretion to order 

simultaneous payment of TPD and PPD benefits. 

 Employer argues that the award of PPD benefits on claimant's 

second application is barred by the doctrine of res judicata. 

Unlike questions of fact, which are binding on this Court if 

supported by evidence, we review questions of law de novo. 

Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 

S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 

Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)). 
 -6- 

 The doctrine of res judicata is applicable to decisions of 

deputy commissioners and the full commission. K & L Trucking 

Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 

(1985). Generally, "[r]es judicata precludes the re-litigation 

of a claim or issue once a final determination on the merits has 

been reached." Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 

S.E.2d 666, 669 (1994) (citing Commonwealth ex rel. Gray v. 

Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989)). 

Therefore, absent fraud or mistake, "the decisions of the 

Commission or its deputy commissioners from which no party seeks 

timely review are binding upon the Commission." Thurber, 1 Va. 

App. at 219, 337 S.E.2d at 302. There is no question in this 

case that claimant's first and second applications were identical 

for the purposes of res judicata. In both proceedings, claimant 

sought PPD benefits on the basis of a 40% impairment in his left 

leg from the same injury, under the same legal theory, against 

the same employer, on the basis of the same medical examination. 

See Balbir Brar Assocs., Inc. v. Consolidated Trading & Servs. 

Corp., 252 Va. 341, 346, 477 S.E.2d 743, 746 (1996) (citing Smith 

v. Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992)). 

 As the party seeking to assert res judicata, employer must 

prove that the deputy commissioner rendered a final opinion in 

its favor. Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va. 

349, 353, 495 S.E.2d 387, 389 (1997) (citing Bates v. Devers, 214 

Va. 667, 671, 202 S.E.2d 917, 921 (1974)). Generally, a judgment 
 -7- 

is final for the purposes of res judicata when "nothing more is 

necessary to settle the rights of the parties or the extent of 

those rights." 8B Michie's Jurisprudence, Former Adjudication or 

Res Judicata § 13 (1994). The commission "interpret[ed] the 

Opinion of March 4, 1997, to have left the issue of permanent 

partial disability unresolved for future determination" and, 

thus, held that the former adjudication was not final. 

 We hold that the commission erred. "While proceedings 

before the commission must comply with the requirements of due 

process, deputy commissioners generally have broad discretion to 

adapt the conduct of hearings to the circumstances of the case." 

Daniel Constr. Co. v. Tolley, 24 Va. App. 70, 78, 480 S.E.2d 

145, 149 (1997) (citing Kum Ja Kim v. Sportswear, 10 Va. App. 

460, 470, 393 S.E.2d 418, 424 (1990)). As the commission noted, 

Deputy Commissioner Gorman wrote in the body of the opinion that 

PPD benefits were denied "at this time." Nevertheless, Deputy 

Commissioner Gorman ordered that "claimant's application is 

DENIED insofar as it has requested permanent partial disability 

benefits for the left leg." This denial of claimant's 

application is all the more clear when contrasted with the issue 

of TPD benefits, which Deputy Commissioner Gorman ordered 

"continued on the Dispute Resolution Docket." Neither party 

sought review of the deputy commissioner's decision, and the time 

for requesting such a review has expired. See Faison v. Hudson, 

243 Va. 413, 419, 417 S.E.2d 302, 305 (1992) ("[A] judgment is 
 -8- 

not final for the purposes of res judicata . . . when it is being 

appealed or when the time limits fixed for perfecting the appeal 

have not expired."). Thus, the opinion of March 4, 1997 fully 

determined the rights of the parties with respect to claimant's 

application for PPD benefits for a 40% impairment of his left leg 

and was final for purposes of res judicata. 

 The commission did not find that claimant's second 

application was based on a change in condition. Indeed, the 

commission found that the medical evidence from Dr. Bhuller which 

claimant submitted in support of his second application merely 

"represented a more complete discussion of the basis for the 

disability rating." Furthermore, our review of the record shows 

that claimant's second application was not based upon "a change 

in physical condition [or] 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." Code § 65.2-101 (defining "change in condition"). 

 Instead, "it was based upon the same medical results and 

findings as the first claim," explained in greater detail. 

Childress v. Beatrice Pocahontas Co., 6 Va. App. 88, 93, 366 

S.E.2d 722, 724 (1988); cf. Wood v. Allison Apparel Mktg., Inc., 

11 Va. App. 352, 355, 398 S.E.2d 110, 112 (1990) (finding no res

judicata bar where "the applications concerned injuries of 

different natures, derived from different circumstances, 

predicated on different medical diagnoses, and involving 
 -9- 

different legal foundations"). Claimant's second application 

was, therefore, barred by res 
 -10- 

judicata. We reverse the decision of the commission and dismiss 

claimant's application.1

 Reversed and dismissed.

 

 1Given our disposition of employer's res judicata claim, we 

do not reach employer's second argument on appeal. 
 -11- 

Baker, J., dissenting. 

 Because I believe the majority has incorrectly applied the 

principle of res judicata, I respectfully dissent. I also 

believe the majority erroneously finds that the commission did 

not treat claimant's second application as one for a change in 

condition and that the application was not based upon a change in 

an attending physician's opinion. 

 In arriving at its decision, the majority concludes that 

claimant's second application for a permanent disability rating 

was "based upon the same medical results and findings as the 

first claim." (Emphasis added). No evidence in this record 

proves that the "same medical" evidence was in the first and 

second applications for a permanency rating. When the first 

application was considered by the deputy commissioner, the 

attending physician had expressed no opinion as to whether 

claimant had reached maximum improvement from his work-related 

injury. Until the deputy or commission has received medical 

evidence that the injured employee has attained maximum medical 

improvement, the deputy is without authority to make an award for 

permanent injury. See County of Spotsylvania v. Hart, 218 Va. 

565, 568, 238 S.E.2d 813, 815 (1977). Therefore, on the first 

application for an award based on permanency, the deputy 

correctly ruled that "at this time" claimant's request had to be 

denied because the compensation provided by Code § 65.2-503 is 

not awardable "until the injury has reached a state of 
 -12- 

permanency, i.e.[,] maximum [medical] improvement, when the 

degree of loss may be medically ascertained." See id.; Nicely v. 

Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 

(1954). 

 The deputy commissioner's use of the words "claim denied," 

preceded by the phrase "at this time" due to premature 

application filed before maximum improvement has been "medically 

ascertained," was not a final determination on the merits of the 

matter at issue as required for proper application of the 

doctrine of res judicata. See Cook v. Clinchfield Coal Co., 215 

Va. 599, 212 S.E.2d 263 (1975). In Cook, the record disclosed 

that claimant's prior application "was dismissed by the deputy 

commissioner because the medical evidence at the hearing before 

him failed to disclose the existence of any occupational 

disease." The Court held as follows: 

 Since claimant could not prove his 1968 claim 

by medical evidence before the deputy 

commissioner, he was not barred from filing 

his second claim when he obtained a positive 

diagnosis on June 13, 1973 . . . . 

Id. at 600, 212 S.E.2d at 264. Similarly, here, claimant was not 

barred from filing his second application when he reached maximum 

medical improvement. Compare AMP, Inc. v. Ruebush, 10 Va. App. 

270, 275, 391 S.E.2d 879, 881 (1990) (noting that res judicata

ordinarily applies to bar relitigation of "[t]he issue of 

causation in [industrial accident] cases" because it "is not an 

issue subject to change" (second emphasis added)). 
 -13- 

 In this case, no evidence concerning maximum medical 

improvement was before the deputy at the hearing on the first 

application. In its opinion, the commission decided that the 

deputy's decision on the first application was not intended to be 

a final decision which would support the application of res

judicata as a bar to the second application. If credible 

evidence in the record supports that decision, we are required to 

affirm the commission's judgment. 

 The majority fails to give appropriate deference to the 

findings of fact implicit in the commission's award. As the 

majority asserts, whether res judicata applies is a legal 

question subject to de novo review on appeal. See Sinclair v. 

Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 S.E.2d 856, 

857-58 (1996). However, we must give deference to any findings 

of fact made by the commission in awarding permanent partial 

disability if those findings are supported by credible evidence 

in the record, regardless of whether contrary evidence exists or 

contrary inferences may be drawn. See Code § 65.2-706(A); 

Stenrich Group v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 

(1996); Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 68, 

455 S.E.2d 267, 271 (1995). 

 When claimant filed his second application, he attached what 

the commission termed "a new medical report from his treating 

physician, Dr. Gurpal S. Bhuller," in which Bhuller fully 

explained claimant's 40% permanent partial impairment rating. 
 -14- 

Dr. Bhuller's report also contained claimant's statement that his 

"symptoms still persist" and Dr. Bhuller opined, for the first 

time, that claimant had reached maximum medical improvement. 

Therefore, Dr. Bhuller's report of March 12, 1997 provides 

credible evidence to support the commission's finding that 

claimant's reaching maximum medical improvement was a change in 

condition over his status at the time of his prior application, 

and such a finding is implicit in the commission's award. See

Sergio's Pizza v. Soncini, 1 Va. App. 370, 375-76, 339 S.E.2d 

204, 207 (1986) (holding that commission may treat application 

for original injury or disease as application for review on 

change in condition, even where application does not use such 

terminology, and may conduct such review sua sponte at any time, 

subject to due process limitations); see also Code § 65.2-708. 

 Furthermore, nothing in the record establishes that claimant 

had, in fact, reached maximum medical improvement prior to his 

first application. Employer, as the party seeking application of 

res judicata, bears the burden of proving by a preponderance of 

the evidence that an issue previously raised was decided on the 

merits. See, e.g., Fodi's v. Rutherford, 26 Va. App. 446, 449, 

495 S.E.2d 503, 505 (1998). Dr. Bhuller discussed claimant's 

condition with him and confirmed that claimant's "symptoms still 

persist[ed]" before Bhuller opined that claimant had reached 

maximum medical improvement. For these reasons, I would hold 

that credible evidence in the record supports the commission's 
 -15- 

implicit finding that claimant's reaching maximum medical 

improvement was a change in condition permitting re-examination 

of his entitlement to payment of the rating. 

 On the issue of accrual of the benefits, however, the 

commission said that, "[b]ased on the medical records, the 

earliest date on which [claimant] could have reached maximum 

medical improvement was August 1, 1996." (Emphasis added). As a 

result, it held that "[o]nly the compensation . . . that had 

accrued from August 1, 1996, should have been awarded in lump 

sum." This statement conflicts with the commission's finding on 

the res judicata issue, as discussed above. Therefore, I would 

remand the case to the commission with instructions to make 

consistent findings on the date of maximum medical improvement as 

applied both to the issue of res judicata and the issue of 

accrual of the award. 

 Because I would find the record supports the commission's 

finding that the doctrine of res judicata did not apply, I would 

reach employer's second assignment of error. 

 Employer contends the commission erroneously ordered 

employer to pay the permanent partial disability benefits 

simultaneously with ongoing temporary partial disability 

benefits. Code § 65.2-503 provides that "[c]ompensation awarded 

pursuant to this section [for a scheduled impairment] . . . shall

be payable after payments for temporary total incapacity pursuant 

to § 65.2-500 . . . [but] may be paid simultaneously with 
 -16- 

payments for [temporary] partial incapacity pursuant to 

§ 65.2-502." (Emphasis added). Employer contends the statutory 

language provides employer, rather than the commission, with the 

discretion to make simultaneous or successive payments of 

temporary partial and permanent partial disability benefits. 

 I disagree. The commission has the power under the Workers' 

Compensation Act to enter awards granting or denying benefits 

under the Act and dictating the terms under which those benefits 

will be paid as long as those terms do not conflict with the 

requirements of the Act. See, e.g., Code §§ 65.2-101, 65.2-201. 

 Therefore, the only reasonable construction of Code § 65.2-503, 

which provides that payments for a rating "may be paid 

simultaneously with payments for [temporary] partial incapacity," 

(emphasis added), is that the commission has discretion to order 

such payments. In cases where the commission does not order such 

payments, employer would be free to make simultaneous payments 

voluntarily. 

 For these reasons, I would (1) affirm the commission's 

authority to order the simultaneous payment of temporary partial 

and permanent partial disability benefits and (2) remand the 

matter to the full commission with instructions to make 

consistent findings on the date of maximum medical improvement as 

applied both to the issue of res judicata and the issue of 

accrual of the award.