Virginia Workers Compensation:  Court affirms successful res judicata defense

In Brock v. Voith Siemen Hydro Power Generation et al., No. 0428-11-3 (Va. App. Nov. 1, 2011), the Court affirmed a decision by the Virginia Workers Compensation Commission that the claimant was barred by res judicata from litigating injuries he alleged in his initial claim but did not raise at his evidentiary hearing.

As a result of a work injury, Brock filed a workers' compensation claim seeking benefits for injuries to his shoulder, back, and hips. He later amended his claim to allege additional injuries to his head and leg. A deputy commissioner scheduled a hearing and advised Brock's counsel that all issues will be considered at the upcoming hearing. Brock's counsel requested a continuance, and the hearing was continued for more than three months.

At the hearing, Brock and the employer stipulated that he had injured his left shoulder. Brock, who was represented by counsel, produced no evidence of his other injuries. Significantly, Brock also did not request additional time to obtain evidence, did not ask the deputy commissioner to hold the record open to later consider the other injuries, did not seek to withdraw any part of his claim, and did not ask the deputy commissioner to defer for later determination issues which were unripe for adjudication.

The deputy commissioner entered an award for benefits for the stipulated injury to the left shoulder, and dismissed the claim. Neither party appealed the order to the full commission.

Months later, Brock, proceeding pro se, filed a claim seeking benefits for injuries to his back, head, shoulder, leg, and hip arising out of the same workplace accident. At a hearing for these claims, the employer argued that these claims had been abandoned and argued that they could not be properly considered. The deputy commissioner held that Brock had abandoned the claim for injuries beyond the stipulated left shoulder injury, but declined to apply res judicata, instead finding that the abandonment was in effect a non-suit.

The employer appealed to the full Commission, arguing in part that the doctrine of res judicata barred the claims for the other alleged injuries. The Commission agreed that res judicata barred Brock's allegedly new claim for injuries. Brock then appealed the Commission's decision.

The Court of Appeals affirmed the Commission, noting in pertinent part that claims precluded by res judicata include those "made or tendered by the pleadings" as well as those "incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered." The Court noted that these res judicata principles apply to workers' compensation cases.

The Court observed that on appeal, Brock "simply asserts the right to litigate the case on an injury-by-injury basis at separate hearings with each resulting in separate award orders." The Court rejected that argument, stating, "Like the commission, we are unaware of any 'conceivable public policy which would be furthered by such piecemeal adjudication of claims.'"

This case illustrates the importance of claimant's counsel taking formal steps at a workers' compensation hearing to preserve claims which may not be ready for adjudication.

For employers, insurers, and their defense counsel, this case underscores that in any file where the employee is alleging additional injuries arising out of an accident which has already resulted in an award, it is important to fully understand what issues were raised in the prior proceeding, what issues were decided, and what issues were preserved for later adjudication.