Theodore Mack Seal v. The Muffler Shop, Inc

• Court: Court of Appeals of Virginia
• Decided: March 19, 1996
• Docket: 2371952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

THEODORE MACK SEAL

v. Record No. 2371-95-2 MEMORANDUM OPINION * PER CURIAM THE MUFFLER SHOP, INC. MARCH 19, 1996 AND ERIE INSURANCE GROUP

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Gerald G. Lutkenhaus, on brief), for appellant.

(Lynne Jones Blain; Lori Morris Whitten; Morris & Morris, on brief), for appellees.

Theodore Mack Seal ("claimant") contends that the Workers'

Compensation Commission erred in (1) finding that the doctrine of

res judicata did not bar the commission from considering the

change in condition application filed by Muffler Shop, Inc. and

its insurer (hereinafter collectively referred to as "employer");

(2) finding that employer proved claimant was able to return to

his pre-injury work without restrictions as of April 11, 1995;

and (3) deciding employer's application on-the-record and in

refusing to grant claimant an evidentiary hearing. Upon

reviewing the record and the briefs of the parties, we conclude

that this appeal is without merit. Accordingly, we summarily

affirm the commission's decision. Rule 5A:27.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I. Res Judicata

The commission found that employer's April 18, 1995

application was not barred by the doctrine of res judicata. The

April 18, 1995 application presented the issue of whether

claimant could return to his pre-injury work without restrictions

as of April 11, 1995. This issue was not, and could not have

been, previously litigated and determined as to these parties.

Indeed, employer based its April 18, 1995 application upon new

evidence, including Dr. Benjamin R. Allen, Jr.'s April 4, 1995

examination of claimant and claimant's test results, and Dr.

Allen's April 4 and April 11, 1995 reports. Therefore, the

commission did not err in finding that the doctrine of res judicata did not bar it from considering employer's April 18,

1995 change in condition application.

II. Return to Work

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

to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

In ruling that employer proved claimant could return to work

without restrictions, the commission accepted the opinion of Dr.

Allen, a neurosurgeon, and rejected the contrary opinion of Dr.

Basava Raj, a neurologist. In April 1995, Dr. Allen opined that

2 claimant's MRI, myelogram, and post-myelogram CT scan did not

reveal any significant discogenic disease. Noting that claimant

might have a complaint of pain, but that he did not have any

neurologic deficit, Dr. Allen concluded that claimant could

return to all activities related to his pre-injury work for

employer. Dr. Allen's opinion constitutes credible evidence to

support the commission's findings. "The fact that there is

contrary evidence in the record is of no consequence if there is

credible evidence to support the commission's finding." Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).

III. Denial of Evidentiary Hearing

Claimant contends that the deputy commissioner's

on-the-record review of the case denied claimant the opportunity

to testify concerning his inability to perform the duties of his

pre-injury work. He argues that the on-the-record procedure

denied him due process.

The deputy commissioner's use of the on-the-record hearing

procedure satisfied the requirements of due process. "[D]ue

process is flexible and calls for such procedural protections as

the particular situation demands." Mathews v. Eldridge, 424 U.S.

319, 334 (1976). "[T]he fundamental requisite of due process of

law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S.

254, 267 (1970). The commission had before it the issue of

whether claimant had been released to return to his pre-injury

3 work. This case did not require an evidentiary hearing because

such a hearing would not have produced any additional medical

testimony necessary to resolve any conflict in the medical

evidence. See Duncan v. ABF Freight System, Inc., 20 Va. App.

418, 457 S.E.2d 424 (1995); Williams v. Virginia Electric and

Power Co., 18 Va. App. 569, 445 S.E.2d 693 (1994). The

commission properly considered the issue raised by employer's

application as a medical question, which did not require

claimant's testimony regarding his inability to work. Based upon

this record, the commission did not abuse its discretion in

deciding employer's application on-the-record, nor did it deny

claimant due process by refusing to grant his request for an

evidentiary hearing. For these reasons, we affirm the commission's decision.

Affirmed.