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RES JUDICATA

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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.

Burden of Proof. One who asserts the defense of res judicata has the burden of proving by a preponderance of the evidence that an issue was previously raised and decided by a tribunal in a prior cause of action. See Worrie v. Boze, 198 Va. 533, 538, 95 S.E.2d 192, 197 (1956); Commonwealth ex. rel. Gray v. Johnson, 7 Va. App. 614, 618, 376 S.E.2d 787, 789 (1989).

"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, 74S.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).

The doctrine of res judicata is applicable to decisions of deputy commissioners and the full commission. K & L Trucking Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302(1985). Generally, "[r]es judicata precludes the re-litigation of a claim or issue once a final determination on the merits has been reached." Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669 (1994) (citing Commonwealth ex rel. Gray v.Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989)). Therefore, 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." Thurber, 1 Va. App. at 219, 337 S.E.2d at 302.

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." K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). The commission correctly applied the doctrine of res judicata to find that an earlier decision, affirmed on review by the commission and appeal to the Court of Appeals, barred the commission from awarding claimant PPD benefits as requested in a later application. the earlier decision constituted a final and binding determination that claimant's fractured radial head had healed; that any continuing problems that he may have were either due to his pre-existing right carpal tunnel syndrome or matters unrelated to his compensable injury by accident; and that there was no continuing disability or need for further medical treatment. Accordingly, the commission did not err in finding that claimant's later claim for PPD and temporary total benefits was barred by the doctrine of res judicata. Michael Ray Manes v. TCB Construction, Record No. 0019-99-3 (June 22,1999). WP Version.

"[A] judgment is not final for the purposes of res judicata . . . when it is being appealed or when the time limits fixed for perfecting the appeal have not expired." Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992). A judgment is final for the purposes of res judicata when "nothing more is necessary to settle the rights of the parties or the extent of those rights." 8B Michie's Jurisprudence, Former Adjudication or Res Judicata, Sec.13 (1994).

The party seeking to assert res judicata must prove that the deputy commissioner rendered a final opinion in its favor. Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va.349, 353, 495 S.E.2d 387, 389 (1997) (citing Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974)).

Wood v. Allison Apparel Mktg., Inc., 11 Va. App. 352, 355, 398 S.E.2d 110, 112 (1990) (no res judicata bar where "the applications concerned injuries of different natures, derived from different circumstances, predicated on different medical diagnoses, and involving different legal foundations").

    The Workers' Compensation Commission did not err in ruling that claimant's change-in-condition claim for temporary total disability benefits beginning November 25, 1999 is not barred by the doctrine of res judicata.
    In 1997 claimant suffered a compensable injury by accident to her ankle, leg, and back, a herniated disc, left L5-S1. On July 30, 1999, clamant filed a change-in-condition claim, alleging temporary total disability and alleging that her disability was caused by a right L5-S1 disc herniation resulting from her compensable accident.  The Commission denied this claim.
    On February 14, 2000, claimant filed another change-in-condition claim, alleging temporary total disability from November 24, 1999 resulting from severe degenerative changes at L5-S1 that require surgery and that are related to her compensable injury by accident.
    In a proper case "principles of res judicata apply to Commission decisions." K&L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Where applicable, the principle "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. "One who asserts the defense of res judicata has the burden of proving by a preponderance of the evidence that an issue was previously raised and decided by [the commission] in a prior cause of action." Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998). A cause of action is instituted by a change-in-condition claim. Whitten v. Mead Paperboard, 4 Va. App. 182, 186, 355 S.E.2d 349, 350 (1987).
    Where an application for a change in condition is filed for the sole purpose of presenting additional evidence in support of a claim that has previously been denied, res judicata will bar reconsideration of the claim. However, res judicata does not bar a claim for resumption of benefits when a "change in condition," as contemplated by the Code, has occurred which has not been previously considered by the commission. Fodi's, 26 Va. App. at 448-49, 495 S.E.2d at 504 (citations omitted).
    The current change-in-condition claim was based on the existence of a severe degenerative change at the L5-S1, which the commission found to be the result of Claimant's compensable injury by accident. The commission's ruling that the evidence proved a causal connection between the degenerative changes and the original injury by accident is unchallenged. The only issue to be resolved under Lowes' defense of res judicata is whether the current change-in-condition claim, which relies upon a degenerative change at L5-S1 that is related to the original compensable injury by accident, "has . . . been previously considered by the commission." Id. at 449, 495 S.E.2d at 504.
    The evidence concerning the first change-in-condition claim established that the right-sided herniated disc was a "new" injury, which was unrelated to the original compensable injury by accident. The evidence concerning the second change-in-condition claim established that the degenerative changes at L5-S1 resulted from the injury by accident. No evidence from either proceeding established that the two claims, i.e., the right-sided disc herniation and the degenerative changes, were inextricably linked. "The barring of a cause of action 'which could have been litigated' is not directed to an unrelated claim which might permissibly have been joined, but, to a claim which, if tried separately, would constitute claim-splitting." Bates v. Devers, 214 Va. 667, 670-71 n.4, 202 S.E.2d 917, 920 n.4 (1974). Because the commission's decision on the first change-in-condition claim was a final determination only on the merits of the issue whether the right-sided disc herniation resulted from the original injury by accident, the doctrine of res judicata does not bar the current change-in-condition claim where the cause of action is based upon whether degenerative changes in the L5-S1 were caused by the original injury by accident. In short, the current claim was not raised by the first change-in-condition claim and was not addressed by the medical evidence then before the commission. Lowes of Christiansburg v. Jennifer D. Clem, Record No. 1188-01-3 (S.Ct. January 15, 2002). WP Version.

After claimant's claim for PPD was denied for failure to prove maximum medical improvement, claimant filed a second claim with a doctor's opinion stating maximum medical improvement had been reached. A panel of the Court of Appeals held the claim barred by res judicata. The panel noted that the first and second applications were identical for the purposes of res judicata. In both proceedings, claimant sought PPD benefits on the basis of a 40% impairment in his left leg from the same injury, under the same legal theory, against the same employer, on the basis of the same medical examination. See Balbir Brar Assocs., Inc. v. Consolidated Trading & Servs. Corp., 252 Va. 341, 346, 477 S.E.2d 743, 746 (1996) (citing Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992)).

Claimant filed a claim for permanent partial disability benefits. The Commission denied the claim “at this time” because there was no evidence claimant had reached maximum medical improvement. This decision was not appealed. Claimant then refiled the same claim with a supporting report from a doctor indicating maximum medical improvement had been reached. A panel of the Court of Appeals held that the second claim was barred by res judicata. The Court of Appeals however reversed the panel decision (Rusty's Welding Service, Inc. v. Edward Wayne Gibson, Record No. 2552-97-2 (July 7, 1998)) , Record No. 2552-97-2 (July 7, 1998)) , Record No. 2552-97-2 (July 7, 1998)), 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc), and held that res judicata does not bar the refiling of the PPD claim, because the first denial was not final. The record supported the commission's conclusion that the deputy commissioner's use of the words "claim denied," followed by the phrase "at this time" signified a lack of finality in the proceedings.  Because the deputy commissioner's decision was not a final determination on the merits of the matter before him, the doctrine of res judicata does not apply.  See Cook v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d 263 (1975).

The doctrine of res judicata is applicable to decisions of deputy commissioners and the full commission.  K & L Trucking Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).  Generally, "[r]es judicata precludes the re-litigation of a claim or issue once a final determination on the merits has been reached."  Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669 (1994).  Therefore, 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."  Thurber, 1 Va. App. at 219, 337 S.E.2d at 302.  As the party seeking to assert res judicata, employer must prove that the deputy commissioner rendered a final judgment in its favor.  Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va.349, 353, 495 S.E.2d 387, 389 (1997).  Generally, a judgment is final for the purposes of res judicata when "nothing more is necessary to settle the rights of the parties or the extent of those rights."  8B Michie's Jurisprudence, Former Adjudication or Res Judicata, Sec. 13 (1994).  Furthermore, the employer must prove by a preponderance of the evidence that the issue previously raised was decided on the merits.  Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998). courts have the authority to interpret their own orders.  See Anderson v. Stephens, 875 F.2d 76, 80 n.8 (4th Cir. 1989); Schwinn Cycling & Fitness Inc. v. Benonis, 217 B.R. 790, 795 (N.D. Ill. 1997).  Furthermore, when construing a lower court's order, a reviewing court should give deference to the interpretation adopted by the lower court. See Anderson, 875 F.2d at 80 n.8; Matter of Xonics, Inc. v. First Wisconsin Financial Corp., 813 F.2d 127, 130 (7th Cir. 1987).  These principles apply when interpreting the adjudicative orders of an administrative agency. Principles applicable to the construction of judicial judgments and decrees are also instructive.  Judgments and decrees entered by courts, and by extension by non-judicial adjudicative bodies, are the instruments through which they elect to speak.  Thus, when the trier of fact issues an opinion at the time its decree is entered, the opinion is instructive as to the decree's reasoning and, by extension, its effect.  See Lindsey v. Lindsey, 158 Va. 647, 653, 164 S.E. 551, 553 (1932) (stating that opinions entered by a trial court are "often exceedingly useful and frequently serve to bring to our attention incidents of importance which would otherwise not be noted in the record, and which could not readily be made to appear, even by bills of exception").  See also Middle-West Concrete Forming & Equip. Co. v. General Ins. Co. of America, 267 S.E.2d 742, 745 n.4 (W. Va. 1980) ("Where the written opinion of the trial court is made part of the record, the reviewing court may consider the written opinion in determining the reasons for the trial court's rulings and judgment."); State ex rel. Moore v. Munchmeyer, 197 S.E.2d 648, 653 (W. Va. 1973) (stating that a decree should be construed with reference to the court's intent and to other parts of the record) (citing Beecher v. Foster, 66 S.E. 643, 645 (W. Va. 1909)). Rusty’s Welding Service, Inc.  v.  Gibson, 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc), Record No. 2552-97-2  (February 2, 1999).

When claimant brought her claim, the commission found that it had jurisdiction to award benefits. The Court of Appeals, which claimant does not contend lacks competent jurisdiction, then affirmed the finding of the commission. Because claimant chose not to appeal further, our decision 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 the Court of Appeals is the same matter between the same parties, and the Court of Appeals' past ruling continues to bind the parties. Piedmont Manufacturing Company, et al.  v.  Lois P. East,  Record No. 1546-96-3 (February 25, 1997).

Claimant's change in condition application requested compensation benefits for disability benefits resulting from the same disc condition that the commission had previously ruled was not causally related to his injury by accident. In injury-by-accident cases, the issue of causation is not subject to change. Therefore, once a final judgment is rendered, relitigation of causation is barred by res judicata. AMP, Inc. v. Ruebush, 10 Va. App. 270, 275, 391 S.E.2d 879, 881 (1990). Based upon this record and Ruebush, the commission did not err as a matter of law in finding that the claimant's change in condition application was barred by res judicata. Johnny Robinson v. Ealey, Gibson, Ealey Plastering Company, Inc., Record No. 0459-95-4 (September 19, 1995).

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." K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Because the issue of employer's liability for the cost of the July 25, 1995 home air conditioning expenses was previously decided against claimant and in favor of employer, the commission did not err in ruling that claimant could not seek to relitigate that issue. Charles Francis Carter v. Arlington Co. Fire Dpt., Record No. 2394-98-4  (April 20, 1999). WP Version.

Familiar principles of res judicata apply to the decisions of the commission. See Rusty’s Welding Service, Inc.  v.  Gibson, 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc) (citing K & L Trucking Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)).  Claimant filed a claim for TTD, TPD and PPD benefits. The full commission held the TTD and TPD claims to be time-barred, but remanded the PPD claim to the deputy. Claimant did not appeal the finding regarding TTD and TPD claims. Claimant contends that if, on remand, an award for permanent disability benefits is granted in response to his reinstated claim, the time-barred claim for TPD and TTD should be deemed timely and that his benefits under that claim should be determined because a later "last date for which compensation was paid" will be established once an award is made, extending the period in which to file claims for TPD under Code Sec. 65.2-503. As the claims for TPD and TTD were finally decided on the merits, see Highsmith v. Commonwealth, 25 Va. App. 434, 442, 489 S.E.2d239, 242 (1997), and as no appeal was taken, see Slagle v. Slagle, 11 Va. App. 341, 344, 398 S.E.2d 346, 348 (1990), the issue of the timeliness of the claims is res judicata, and thus the claims are not subject to reinstatement or reconsideration. Donald R. Wells v. Chesapeake Redevelopment, Record No. 0848-99-1 (January 11, 2000). WP Version.

Issue of Subject Matter Jurisdiction Raised at Any Time. Subsequently discovered injuries. The commission lacked jurisdiction to award benefits because claimant failed timely to file a claim for injuries to his neck and back arising from an industrial accident of October 22, 1979. Following the accident the only injuries included in the Memorandum of Agreement executed by the parties in 1979 were to claimant's shoulder and forehead. Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Claimant contends the back and neck injuries occurred simultaneously with, rather than subsequent to, the accepted shoulder and forehead injuries. This case is distinguishable from the case in which an employee timely files a claim for all injuries incurred in an industrial accident but subsequently develops additional injuries as a "natural consequence" of the industrial accident. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991). "The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding that statute of limitations is part of "substantive right to recover" under Act and, therefore, applicable statute of limitations is one in effect when injury occurs). "This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the [Workers' Compensation Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 194 (1973) (construing former Code Sec. 65.1-87). "'The right to compensation under the [workers'] compensation law is granted by statute, and in giving the right the legislature has full power to proscribe the time and manner of its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954)). It is the intent of Code Sec. 65.1-87 that, within the time prescribed by the section, an employee must assert against his employer any claim that he might have for any injury growing out of the accident. . . . Failure to give such notice within [the statutorily prescribed period] would seriously handicap the employer . . . in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation . . . is a compelling one. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphases and footnote added) (construing former Code Sec. 65.1-87). Thus, in Shawley, the Court held that the commission lacked subject matter jurisdiction to award benefits for injury to the claimant's right ankle and back, where the only injuries for which he filed a timely claim were to his left ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The Court subsequently noted that "[j]urisdiction [ordinarily] cannot be conferred on the Commission by consent" and that it comes into being "when 'a claim [is] filed' within two years after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Accordingly, the commission lacked subject matter jurisdiction to award medical benefits for these injuries. Although the employer failed to raise the jurisdictional defense in an earlier proceeding in 1995, the doctrine of res judicata provides that "[a] valid, personal judgment on the merits in favor of [a party] bars relitigation of the [s]ame cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a prior judgment to preclude a subsequent action, . . . the court in the first proceeding must have had jurisdiction over the subject matter of the controversy and the precise issue upon which the judgment was rendered." Lloyd v. American Motor Inns, Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis added). If a court lacks jurisdiction to render a judgment, the judgment has no preclusive effect. See id. Therefore, the doctrine of res judicata provides no exception to the well accepted principle of law that lack of subject matter jurisdiction may be raised in any court at any time and a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. See Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). Safeway Stores, Inc. v. Harold E. McGowan, Record No. 0895-99-2 (February 29, 2000). WP Version.

The commission erroneously found that claimant established a change in condition warranting TPD for the period claimed and erroneously found a causal connection between her claimed disability and the compensable injury she sustained to her lower back and left knee on May 16, 1996. In an earlier proceeding claimant stipulated that that the disability she experienced during the period from November 6, 1996 through February 3, 1997 was not causally connected to her accident of May 16, 1996. Claimant then filed a second claim in which she alleged a change in condition, and requested ongoing TTD for a period beginning on March 27, 1997 and continuing indefinitely. King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984), controls the determination of whether claimant’s claim qualifies under Code Sec. 65.2-101(4) as a "change in condition" sufficient to warrant a resumption of disability benefits. See Hercules, Inc. v. Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639-40 (1991). When an employee files an application for reinstatement of disability benefits, two questions arise:  1) has there been a change in the employee's capacity to work; 2) if so, is the change due to a condition causally connected with the injury originally compensated. Claimant’s change in benefit status clearly fails the first prong of the test.  The only change she has asserted is that she "went from a period of not receiving workers' compensation to a change in that condition, as she sought temporary total disability beginning March 27, 1997."  Such a change in benefit status has no bearing upon the claimant's capacity to work. Furthermore, claimant's disability failed to satisfy the second prong of the King's Market test.  Nothing in claimant’s medical records after the date of the hearing on the first claim demonstrates a "change due to a condition causally connected with the injury" for which she originally sought compensation. King's Market, 227 Va. at 483, 317 S.E.2d at 148.  Indeed, Dr. Brickhouse outlined the history of claimant’s treatment with him in a letter to the commission, dated May 8, 1997, and confirmed that as of the date of the letter claimant continued to experience back and knee pain which he attributed to 1) degenerative disc and joint disease of the lumbar spine, and 2) mild degenerative changes in her knees.  Dr. Brickhouse also stated in a note dated June 17, 1997, that claimant complained of continued knee pain, and he reported that she had not returned to work since November, 1996, because of her knee and back problems.  Claimant's statements, reported by Dr. Brickhouse, demonstrate that her disability following March 27, 1997 was the same as that which she experienced in the period from November, 1996 through February 2, 1997, which, by stipulation, she conceded was not causally connected to her industrial accident.  Her condition therefore remained unchanged from the first period to the second. Finally, Terry's claim of disability in the second proceeding is barred by the doctrine of res judicata.  See Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) (en banc) (res judicata applies to decisions of the commission); Allegheny Airlines, Inc. v. Merillat, 14 Va. App. 341, 343-44, 416 S.E.2d 467, 469 (1992) (where claims relate to different periods of time and the claim in the second proceeding is supported by different evidence than was offered in the first proceeding, res judicata does not apply). Although claimant’s second claim relates to a different period of time than that claimed in the first proceeding, the medical evidence she offered in the second proceeding was identical to that offered in the first proceeding, viz. the May 8, 1997 letter from Dr. Brickhouse.  Her claim is thus barred by res judicata.  See Merillat, 14 Va. App. at 343-44, 416 S.E.2d at 469. Aramark Corp. v. Virginia I. Terry, Record No. 0921-99-2 (March 14, 2000). WP Version.

The commission affirmed the deputy commissioner's  finding that the commission had jurisdiction over the claim because employer regularly employed three or more employees. The commission also affirmed the deputy commissioner's average weekly wage determination and the award of medical benefits and temporary total disability benefits, but it remanded the case to the deputy commissioner for a ruling on claimant's permanent partial disability ("PPD") claim. Claimant included his PPD claim in his original claim for benefits, but the deputy commissioner did not address it at the time of the hearing. The UEF did not appeal. Following remand, the commission issued a decision affirming the deputy commissioner's ruling awarding claimant PPD benefits. The commission also held that it no longer had jurisdiction over the issue of whether employer regularly employed three or more employees. Uninsured Employer's Fund v. Harper, 26 Va. App. 522, 495 S.E.2d 540 (1998), controls this issue. the Fund was not required to appeal the jurisdiction issue until after the PPD issue was fully determined on the merits by the commission on remand. In this case, the PPD claim was filed as part of the original claim and not as a claim separate and apart from the original claim for benefits. The commission's last opinion was a final, appealable order because it disposed of the entire claim "leaving nothing to be done except to superintend ministerially the execution of the award." Id. Uninsured Employer's Fund v. Derek M. Kramer, Record No. 0991-99-4 (March 28, 2000). WP Version.

    The Commission did not err in awarding temporary total and medical benefits to claimant. Claimant is not barred from receiving additional benefits on his Virginia claim because he entered into a full settlement agreement of this claim in Illinois, but employer is entitled to a credit in the amount of the Illinois settlement. Claimant filed a claim for benefits in Virginia, received benefits under that claim and an award order was issued. Claimant also filed a claim for benefits in Illinois, the location of employer's base of operations. The parties entered into a settlement contract in Illinois, the settlement contained language that settled all claims arising from claimant's accident and specifically included the existing, concurrent Virginia claim, claimant accepted and received benefits under the Illinois settlement and the Virginia claim, and  neither party submitted the Illinois settlement documents to the Virginia Workers' Compensation Commission for approval as required by Code Sec. 65.2-701. 
    The Illinois Commission did not purport to, and could not have adjudicated the appropriateness of the proposed settlement under the laws of Virginia. The Illinois Commission had no power to approve language in the settlement agreement that purported to foreclose the claimant's right to seek further relief before the Virginia Commission. Pursuant to the Supreme Court's decision in Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980), we are not bound by the Illinois Order under principles of comity.
    The commission refused to retroactively approve the Illinois settlement pursuant to Code Sec. 65.2-701(A), which requires all parties to be in agreement before any settlement can be approved. Claimant did not consent to the commission's approval of the Illinois settlement, see Damewood v. Lanford Bros. Co., 29 Va. App. 43, 509 S.E.2d 530 (1999), and in fact seeks continuing benefits. Without agreement between the parties, the commission did not err in declining to approve the settlement. See id. at 47, 509 S.E.2d at 532.
    The commission did not err in granting employer's affirmative request for a dollar for dollar credit, in the full amount of the settlement paid to claimant in Illinois. The employer is entitled to credit for payments made in another state for the same accident and the same injuries. See Harris v. Otis Elevator, 73 VWC 223, 225 (1994); Cook v. Minneapolis Bridge Construction Co., 43 N.W.2d 792 (Minn. 1950); Spietz v. Industrial Comm'n, 28 N.W.2d 354 (Wis. 1947). United Airlines, Inc. v. Mark F. Fozel, Record No. 0313-00-4 (November 7, 2000). WP Version.

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