FIELDCREST CANNON, INC. v
APRIL 1, 1997
Record No. 2567-96-2
COURT OF APPEALS OF VIRGINIA
FIELDCREST CANNON, INC.
WANDA B. MARSHALL
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Gregory T. Casker; Daniel, Vaughan, Medley & Smitherman,
on brief), for appellant.
(Geoffrey R. McDonald; Laura L. Geller; McDonald & Snesil,
on brief), for appellee.
Present: Judges Bray, Annunziata and Overton
This appeal stems from a February 28, 1995 award entered by
the Workers’ Compensation Commission (commission) to Wanda B.
Marshall (claimant) approving a Memorandum of Agreement executed
by claimant and Fieldcrest Cannon, Inc. (employer) which provided
benefits for claimant’s right carpal tunnel syndrome. After the
Supreme Court’s decision in The Stenrich Group v. Jemmott,
251 Va. 186, 467 S.E.2d 795 (1996), employer moved the commission
to vacate the award, arguing that the commission had no subject
matter jurisdiction over the claim. The commission refused, and
employer appeals. Upon reviewing the record and the briefs of the
parties, we find that this appeal is without merit. Accordingly,
we summarily affirm the commission’s decision. Rule 5A:27.
In the case at bar we are constrained to observe the doctrine
of res judicata, in which "a point once adjudicated by a
court of competent jurisdiction may be relied upon as conclusive
upon the same matter as between the parties or their privies, in
any subsequent suit, in the same court or any other court, at law
or in chancery." Patterson v. Saunders, 194 Va. 607,
611, 74 S.E.2d 204, 207 (1953). "A plea of res judicata will
be sustained if the prior adjudication was between the same
parties or their privies and a valid final judgment was entered
which resolved the claim on its merits." Waterfront
Marine Constr., Inc. v. North End 49ers, 251 Va. 417, 430,
468 S.E.2d 894, 902 (1996); see Bates v. Devers,
214 Va. 667, 670?71, 202 S.E.2d 917, 920?21 (1974).
Employer argues that res judicata does not apply because the
commission never had subject matter jurisdiction and that the
award was therefore void ab initio. This argument is
disingenuous. When the parties submitted the executed memorandum
of agreement, the commission found that it had jurisdiction to
award benefits. Employer had every opportunity to contest the
claim, but it chose to agree to its compensability and the
commission entered an award. Employer did not appeal the
commission’s award, therefore the award became a point
"adjudicated by a court of competent jurisdiction [to be] relied upon as conclusive upon the same matter as between the
parties." The case before us today is the same matter
between the same parties, and the commission’s past award
continues to bind the parties. 
Accordingly, we affirm the decision of the commission.
[*] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.
 We note that, were we to
revisit the issue of claimant’s entitlement to benefits, we would
not retroactively apply Jemmott to vacate her award. As Jemmott
overruled the past consistent decisions of both the commission
and this Court, and as a retrospective application would result
in substantial inequity to claimants whose claims in tort are now
barred by the statute of limitations, Jemmott should be
applied only prospectively. See City of Richmond v.
Blaylock, 247 Va. 250, 252, 440 S.E.2d 598, 599 (1994); Harper
v. Virginia Dep’t of Taxation, 241 Va. 232, 237-40, 401
S.E.2d 868, 871-73 (1991).