Res judicata bars claim after final award

Even though claimant’s medical benefits claim included a claim for deep vein thromboses, where the deputy commissioner’s award did not address DVT, and neither party appealed, the award became final and res judicata bars a later claim to pay for DVT medical treatments.

Background

The claimant, Rich, broke a bone in his left foot on Oct. 17, 2018, when he stepped on a pipe at his job site and rolled his foot. He filed a claim for benefits on Nov. 4, 2018. Rich’s doctor put a cast on his leg. On Dec. 18, his doctor noted the fracture was almost completely healed. Rich was cleared for light-duty work on Jan. 11, 2019.

In February 2019, Rich’s left leg and foot became significantly swollen. An ultrasound showed that he had DVT and he sought treatment for the condition.

Initial claim

Rich applied for a hearing to obtain medical benefits and compensation for lost wages. In his application, Rich referenced the bone fracture in his left foot. He also noted a blood clot in his left leg that was a ‘direct result’ of his fracture.

In discovery, “Rich claimed as ‘body parts alleged to have been injured’ his ‘[l]eft foot injury’ and ‘left leg DVT.’ …

“Included in the medical records he introduced were reports from OrthoVirginia, Central Lynchburg General Hospital, and Centra. Centra reported several times that Rich’s DVTs are ‘felt to be provoked and [secondary to] his left foot [fracture.]’”

The deputy commissioner’s opinion, filed on Oct. 18, 2019,  addressed “the ‘claims filed … in regards to injuries to the left foot and the 5th metatarsal bone that occurred on October 17, 2018.’

“Recounting that employer had ‘stipulated to a compensable injury to the left foot 5th metatarsal[,]’ but disagreed with the periods of disability, the opinion expressed that, ‘[g]iven the stipulation … of a compensable injury, we mostly look to the medical records in regards to work status.’

“ The opinion noted Rich’s DVTs and cardiology referral among the findings of fact, but it did not address the cause of the condition and the ultimate award did not specifically mention treatment for it.

“Instead, Rich was awarded ‘medical benefits … for as long as necessary for reasonable, necessary and authorized treatment causally related to the claimant’s October 17, 2018 injuries to the left foot and the 5th metatarsal bone. …

“Neither party sought review of the deputy commissioner’s decision, and the award became final.”

Post-award claim

Rich’s broken foot healed but he still had pain and swelling related to the DVTs. He applied for a hearing and later filed a ‘motion to compel payment’ for DVT treatment.

“Employer objected, arguing that Rich’s award for medical benefits was limited to the ‘left foot and the 5th metatarsal bone’ and that he ‘was not awarded benefits associated with DVT/‘left leg blood clots.’

“Citing this Court’s decision in Brock v. Voith Siemens Hydro Power Generation, 59 Va. App. 39 (2011), employer contended Rich’s motion was barred by res judicata because, in addition to his fracture, his claim for left leg blood clots had been ‘the subject of the evidentiary hearing on October 16, 2019[,]’ but the deputy commissioner did not provide for an award or reservation related to any DVT or blood clot treatment and Rich elected not to appeal that decision.”

Res judicata

“In finding that res judicata barred Rich’s claim related to DVTs, the Commission found that our decision in Brock provided the rule of decision. We agree.

“In Brock, the claimant’s pleadings placed multiple injury claims before the deputy commissioner for decision. … In this case, the Commission reasonably interpreted Rich’s June 11, 2019 letter as a claim seeking compensation related to both his left foot injury and DVTs.

“In discovery responses, Rich confirmed he was seeking compensation related to both his left foot injury and DVTs, identifying the injuries he suffered as both a ‘broke[n] … 5th metatarsal bone on my left foot’ and a resulting ‘blood clot in my left leg.’

“To the extent there was any room to doubt that Rich was seeking compensation for both a foot injury and DVTs at the October 2019 hearing, such doubts were extinguished by his pre-hearing statement in which Rich claimed as ‘body parts alleged to have been injured’ his ‘[l]eft foot injury’ and ‘left leg DVT.’

Thus, it reasonably cannot be disputed that the issue of compensability of DVTs, whether as an initial injury or as a compensable consequence, represented a ‘[c]laim[] …‘made or tendered by the pleadings’ at the time of the October 2019 hearing before the deputy commissioner. …

“Accordingly, the issue clearly falls within the ‘could-have-litigated-should-have-litigated principle,’ …

rendering the deputy commissioner’s unappealed decision a final resolution of the issue of whether Rich can receive compensation related to DVTs.

“Despite the pleadings placing the issue squarely before the deputy commissioner, the deputy commissioner’s decision did not address Rich’s entitlement to compensation related to DVTs.

“The failure of the deputy commissioner to rule on the issue and the failure of Rich to take any action to address that failure render this case indistinguishable from Brock. As in Brock, ‘[n]oathing in the record suggests [Rich] ever sought to withdraw … his claim’ for compensation related to DVTs. …

“‘Nor did he at any time ask the deputy commissioner to hold open the evidentiary record to later consider allegations’ related to DVTs. ….

“Because we find the case indistinguishable from Brock, we conclude that “the [C]ommission [correctly] applied settled principles of res judicata to bar [Rich] from litigating matters he neglected to raise at his earlier evidentiary hearing[.]”

Affirmed.

Rich v. Facebook, Inc., et al., Record No. 1154-21-4, May 17, 2022. CAV (Russell) from the Virginia Workers’ Compensation Comm’n. Hannah Bowie for appellant. Brian J. McNamara for appellees. VLW 022-7-125, 14 pp. Unpublished opinion.