Johnny Robinson v Ealey, Gibson, etc., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Bray and Annunziata
JOHNNY ROBINSON MEMORANDUM OPINION*
v. 	Record No. 0459-95-4 	PER CURIAM
SEPTEMBER 19, 1995
EALEY, GIBSON, EALEY PLASTERING COMPANY, INC.
AND
AETNA CASUALTY AND SURETY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael W. Heaviside; Ashcraft & Gerel, on brief),
for appellant.
(Michael V. Durkin, on brief), for appellees.
Johnny Robinson contends that the Workers' Compensation
Commission erred in finding that his November 16, 1993 change in
condition application was barred by the doctrine of res judicata.
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.
In AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d
879, 881 (1990), this Court held:
Causation is an essential element which
must be proven by a claimant in order to
receive an award of compensation for an
injury by accident under the Virginia
Workers' Compensation Act. . . . 	A final
judgment based on a determination by the
commission on the issue of causation
conclusively resolves the claim as to that
particular injury. 	Thereafter, absent fraud
or mistake, the doctrine of res judicata bars
further litigation of that claim.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
In relying upon Ruebush to deny claimant's application, the
commission found as follows:
[T]he claimant here now tries to relitigate
the question of causation between the
accident and his degenerative disc condition
and disc herniation, precisely the same issue
previously litigated and decided by Deputy
Commissioner Gorman on August 26, 1993 and
the Full Commission on April 4, 1994.
Although the Opinions do not strictly state
that those injuries were not caused by the
accident, causation was then an issue and was
unsuccessfully argued by the claimant.
Having failed to prove causation regarding
this injury at the earlier hearing, he cannot
now revisit and relitigate that issue.
Stated another way, the claimant may here
have proved another period of disability, but
even this period of disability is caused by
an injury already determined to be unrelated
to the occupational accident and results from
a condition that is not the responsibility of
the employer.
In litigating his November 16, 1992 application, claimant
bore the burden of proving a causal link between his disc
condition and the October 27, 1992 industrial accident. 	On April
4, 1994, the commission rendered final judgment on this issue,
ruling that claimant did not meet his burden. 	Claimant did not
appeal this decision. 	Thus, it became final.
Claimant's November 16, 1993 change in condition application
requested compensation benefits for disability benefits beginning
August 28, 1993 resulting from the same disc condition that the
commission had previously ruled was not causally related to the
October 27, 1992 injury by accident. 	In injury-by-accident
cases, the issue of causation is not subject to change.

3
Therefore, once a final judgment is rendered, relitigation of
causation is barred by res judicata. 	Ruebush, 10 Va. App. at
275, 391 S.E.2d at 881.
Based upon this record and Ruebush, the commission did not
err as a matter of law in finding that the claimant's November
16, 1993 change in condition application was barred by res
judicata.
For these reasons, we affirm the commission's decision.
Affirmed.