Fodi's and Aetna Cas. & Surety,et al. v Rutherford

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
FODI'S and AETNA CASUALTY & SURETY COMPANY,
N/K/A TRAVELERS PROPERTY CASUALTY CORP. OPINION BY
v. 	Record No. 1239-97-3 	JUDGE SAM W. COLEMAN III
FEBRUARY 3, 1998
KAREN RUTHERFORD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Pamela Meade Sargent (White, Bundy, McElroy,
Hodges & Sargent, on brief), for appellants.
Paul L. Phipps (Lee & Phipps, P.C., on
brief), for appellee.
Fodi's and its insurer ("employer") appeal the Workers'
Compensation Commission's decision awarding Karen Rutherford
temporary total disability benefits based upon a change in
condition. 	Employer argues that Rutherford's claim for
reinstatement of benefits based on a change in condition was
barred by the doctrine of res judicata because of the factual
findings made by the commission when deciding the initial claim.
We disagree and affirm the commission's decision.
Code § 65.2-101 defines a "change in condition" as "a change
in the physical condition of the employee as well as a change in
the conditions under which compensation was awarded, suspended,
or terminated which would affect the right to, amount of, or
duration of compensation." 	When an employee applies for
reinstatement of disability benefits based upon a change in
condition, the commission must determine: 	(1) whether a "change

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in condition" has occurred as defined in Code § 65.2-101, that
affects the employee's capacity to work, and (2) if so, whether
the change is due to a condition causally connected with the
original compensable injury. 	See King's Market v. Porter, 227
Va. 478, 483, 317 S.E.2d 146, 148 (1984). 	Where an application
for a change in condition is filed for the sole purpose of
presenting additional evidence in support of a claim that has
previously been denied, res judicata will bar reconsideration of
the claim. 	Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601,
401 S.E.2d 200 (1991); AMP, Inc. v. Ruebush, 10 Va. App. 270, 391
S.E.2d 879 (1990). 	However, res judicata does not bar a claim
for resumption of benefits when a "change in condition," as
contemplated by the Code, has occurred which has not been
previously considered by the commission. 	Accordingly, the sole
question in this appeal is whether Rutherford alleged and proved
that a "change in condition" occurred following her last
application for benefits.
In adjudicating Rutherford's initial claim, the commission
found that she suffered a compensable injury by accident when she
sprained her neck at work on May 6, 1995. 	The commission further
found that the sprain had subsided as of May 30, 1995 and awarded
benefits limited to that period. 	It concluded that Rutherford's
neck and back pain that continued after May 30, 1995 were not
caused by her neck injury but, rather, were attributable to a
Harrington rod inserted in her spine when she was twelve years

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old to correct a degenerative spine condition. 	As a result, the
commission awarded temporary total disability benefits from the
date of injury to May 30, 1995.
Following the last award, Dr. Donald Chan removed the upper
tip of the Harrington rod but Rutherford's pain persisted. 	Dr.
Chan described how Rutherford's condition "worsened despite [the]
hardware removal." 	Dr. Chan determined that Rutherford required
surgery for herniated and bulging cervical discs. 	After
performing the surgery, Dr. Chan opined in a letter to counsel
that Rutherford's "work related injury probably aggravated her
previous condition making it symptomatic enough so she
subsequently had to undergo surgery on her neck."
One who asserts the defense of res judicata has the burden
of proving by a preponderance of the evidence that an issue was
previously raised and decided by a tribunal in a prior cause of
action. 	See Worrie v. Boze, 198 Va. 533, 538, 95 S.E.2d 192, 197
(1956); Commonwealth ex. rel. Gray v. Johnson, 7 Va. App. 614,
618, 376 S.E.2d 787, 789 (1989). 	Employer contends that
Rutherford claimed in her initial application that her injury was
disabling after May 30, 1995 and that, in applying for
reinstatement of benefits, she has merely introduced additional
evidence in support of that claim but has shown no change in
condition. 	We disagree.
Certainly, Rutherford claimed in her original application
that she was disabled after May 30, 1995. 	The commission's award

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finding that she established disability only through that date
was final. 	However, the record reveals that Rutherford alleged
and proved a change in her physical condition. 	Dr. Chan
explained that Rutherford's condition "worsened" and became
"symptomatic enough" to require surgery. 	Although she presented
evidence from Dr. Chan at the first hearing concerning the fact
that she had a herniated disc, the commission's adjudication of
her initial claim does not operate to bar her claim that her
condition has subsequently worsened or became symptomatic,
rendering her disabled and requiring surgery. 	Rutherford's
change in condition claim was based upon medical circumstances
different from those considered in the initial proceedings.
Thus, the employer has failed to show that the condition which
was the subject of claimant's current application was the same
condition or claim that was made in her original application.
Accordingly, we affirm the commission's reinstatement of
temporary total disability benefits.
Affirmed.