William Wayne Wimer, Sr. v S.T. Wooten Const. etal

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
WILLIAM WAYNE WIMER, SR.
v. 	Record No. 2087-95-2 	MEMORANDUM OPINION*
PER CURIAM
S. T. WOOTEN CONSTRUCTION COMPANY 	MARCH 5, 1996
AND
ST. PAUL MERCURY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Brian J. Cuscé, on brief), for appellant.
(Glenn S. Phelps; R. Ferrell Newman;
Thompson, Smithers, Newman & Wade, on
brief), for appellees.
William W. Wimer, Sr., contends that the Workers'
Compensation Commission erred in (1) finding that res judicata
barred the commission from considering his application filed
December 30, 1991; (2) finding that the doctrine of imposition
did not apply; and (3) in failing to correct a procedural mistake
so that permanent partial disability benefits were payable after
the payment of temporary total disability benefits as required by
statute. 	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.
On January 17, 1990, Wimer sustained an injury by accident
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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to his right knee arising out of and in the course of his
employment. 	On December 30, 1991, Wimer filed an application
seeking an award of medical benefits and temporary total
disability benefits beginning June 1, 1990. 	Employer accepted
Wimer's claim as compensable. 	Noting that the parties had
resolved the matter in controversy by Memorandum of Agreement,
Deputy Commissioner Hayes removed the claim from the hearing
docket. 	The parties then filed a Memorandum of Agreement with
the commission for payment of medical benefits and permanent
partial disability of 8.5 weeks. 	On April 16, 1992, the
commission entered an award consistent with the Memorandum of
Agreement. 	A month later, the parties submitted a signed Agreed
Statement of Fact to the commission. 	The Agreed Statement of
Fact indicated that employer agreed to pay Wimer permanent
partial disability from February 12, 1992 through April 12, 1992,
and temporary total disability benefits from January 3, 1992
through April 29, 1992, and that Wimer was able to return to his
pre-injury work on April 30, 1992. 	On May 27, 1992, the
commission entered an award memorializing this agreement.
Two months after that award, Wimer filed a second
application, seeking temporary total disability benefits from
June 1, 1990 through January 3, 1992. 	Treating Wimer's claim as
a change in condition application, the deputy commissioner held
that Rule 13 of the Rules of the Workers' Compensation Commission
barred the commission from awarding benefits to Wimer. 	Wimer did

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not timely file a request for review from this decision, and
therefore, it became final.
On January 5, 1993, Wimer requested a review of the
application in which he sought temporary total disability
benefits from June 1, 1990 through January 3, 1992. 	The
commission informed Wimer that this claim had already been
litigated. 	Because Wimer had not appealed that decision, he
could not relitigate this issue.
Wimer filed a third claim for temporary total disability
benefits beginning June 1, 1990. 	An assistant claims examiner
denied the application on the basis of res judicata. 	The full
commission affirmed the claims examiner's decision as to the
period before January 3, 1992. 	However, the full commission
allowed Wimer to present evidence related to disability for the
period after January 3, 1992. 	Following a hearing, a deputy
commissioner found that Wimer failed to prove that his current
medical condition was causally related to his compensable injury
by accident. 	Wimer filed a request for review from this
decision. 	However, the commission denied review because Wimer's
request was not filed within the required twenty-day period.
Wimer filed additional applications seeking temporary total
disability benefits beginning May 30, 1990 and June 1, 1990,
respectively. 	A deputy commissioner denied these applications
because the issue had been previously adjudicated and Wimer did
not present any new evidence. 	Wimer also filed an application

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seeking authority to proceed with physical therapy. 	A deputy
commissioner denied Wimer's application for physical therapy due
to a lack of medical evidence.
After a review of Wimer's file, the commission wrote to
Wimer, on October 4, 1994, stating that the commission would
refer his file back to the hearing docket on his original
application of December 30, 1991. 	A deputy commissioner denied
Wimer's original application, finding that the issue of
disability from June 1, 1990 through January 3, 1992 had been
previously decided by various opinions of the commission, which
had become final. 	On review, the full commission denied Wimer's
application on the basis of res judicata. 	The commission found
as follows: The record reflects that [Wimer] was not
denied the opportunity to present evidence on
the issue of disability for the claimed
period. 	This opportunity was afforded at the
Hearing on November 2, 1992, before Deputy
Commissioner Lee; at the on-the-record
Hearing on August 17, 1994, before Deputy
Commissioner Arrighi; and by the two chances
to request Review of the decisions entered
after consideration of evidence presented in
the above Hearings. 	As to the first Opinion
by Deputy Commissioner Lee, [Wimer] had the
opportunity to request Review of her
determination that the application was for a
change in condition and that Rule 13 applied.
No timely request for Review was noted.
The commission also rejected Wimer's argument that res
judicata should not apply because the two awards entered for
permanent partial disability benefits and temporary total
disability benefits were for overlapping periods of time in

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violation of Code § 65.2-503(F). 	The commission vacated the
previous awards and entered an amended award for record purposes.
The amended award provided for temporary total disability
benefits from January 3, 1992 through February 11, 1992;
permanent partial disability benefits from February 12, 1992
through April 13, 1992; and temporary total disability from
April 14, 1992 through April 29, 1992. 	Finally, the commission
ruled that the doctrine of imposition did not apply in this case.
I. Res Judicata
"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." 	K & L Trucking
Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).
Res judicata applies "where there is a valid, personal judgment
obtained by a defendant on the merits of an action. 	The judgment
bars relitigation of the same cause of action, or any part
thereof which could have been litigated between the same parties
and their privies." 	Id.
Wimer litigated the issue of his entitlement to an award of
temporary total disability benefits from June 1, 1990 through
January 3, 1992. 	Wimer did not seek timely review of the deputy
commissioners' decisions, and therefore, they became final and
binding upon him. 	Thus, credible evidence supports the
commission's finding that the issue of disability for the period
June 1, 1990 through January 3, 1992 could not be litigated again

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because the 1992 and 1994 decisions of the deputy commissioner
adjudicating those claims are final and were not appealed. 	Res
judicata prevented Wimer from subsequently relitigating the issue
of his entitlement to temporary total disability benefits from
June 1, 1990 through January 3, 1992.
II. 	Imposition
"'Imposition' . . . empowers the commission in appropriate
cases to render decisions based on justice shown by the total
circumstances even though no fraud, mistake or concealment has
been shown." 	Avon Products, Inc. v. Ross, 14 Va. 1, 7, 415
S.E.2d 225, 228 (1992).
Substantial credible evidence supports the commission's
finding that Wimer's conduct in failing to note timely requests
for review of the deputy commissioners' 1992 and 1994 opinions
prevented the commission from considering the issue of disability
for the period June 1, 1990 through January 3, 1992. 	Thus, the
commission did not err in ruling that the doctrine of imposition
did not preclude employer from relying upon res judicata.
III. 	Disability Awards
Wimer argues that res judicata did not apply because the
awards entered for temporary total disability benefits and
permanent partial disability benefits were for overlapping time
periods in violation of Code § 65.2-503(F). 	The commission
corrected this error by amending the awards for record purposes.
The commission's correcting this mistake in entering the awards

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had no bearing upon whether Wimer's claim for disability from
June 1, 1990 through January 3, 1992 was barred by res judicata.
For these reasons, we affirm the commission's decision.
Affirmed.