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Levy v. Wegmans Food Markets, Inc.

Court of Appeals of Virginia

April 3, 2018

DEBRA LEVY
v.
WEGMANS FOOD MARKETS, INC.

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          M. Thomas McWeeny (Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P., on briefs), for appellant.

          Alex M. Mayfield (Franklin & Prokopik, P.C., on brief), for appellee.

          Present: Chief Judge Huff, Judges Humphreys and O'Brien Argued at Fredericksburg, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE

         On September 7, 2017, the Virginia Workers' Compensation Commission ("the Commission") denied Debra Levy's ("Levy") compensation claim. On appeal, four of Levy's five assignments of error essentially restate her basic argument that the Commission erred in applying both the claim and issue preclusion aspects of the doctrine of res judicata[1] to her compensation claim. Levy's fifth assignment of error asserts that the Commission's erroneous understanding of res judicata deprived her of her due process rights under the Fourteenth Amendment to the United States Constitution.

         I. BACKGROUND

         Levy, an employee of Wegmans Food Markets, Inc. ("Wegmans") damaged her right knee, which had pre-existing arthritis, in a June 26, 2011 incident where she slipped and fell in the back of Wegmans's walk-in freezer. This injury required surgery, a partial medial meniscectomy. Levy filed a number of claims related to this injury over a protracted period.

         The claim at issue was filed on April 29, 2015, seeking approval of arthroscopic knee surgery, proposed by Levy's doctor, Dr. John Stanton ("Dr. Stanton"), and protective disability claims continuing from January 29, 2015. In a September 21, 2015 review opinion the full Commission found

no indication in Dr. Stanton's records that the claimant's compensable injury is playing a role in any disability which [Levy] may have . . . . The surgery he is contemplating clearly appears to be related solely to the claimant's arthritis, which was at an advanced stage even before the compensable accident.

         The day following the decision of the Commission, Levy requested an evidentiary hearing for the surgery and related disability. On December 30, 2015, Levy filed "new" claims for a 27% permanent partial disability to the right leg, and added "aggravation/acceleration of [her] right knee arthritis as a compensable consequence of the June 26, 2011 injury." Levy deposed Dr. Stanton on January 7, 2016. In this deposition Dr. Stanton stated that the partial meniscectomy following the 2011 incident had accelerated the degenerative condition of her knee and that his proposed surgery was necessary and causally related to her 2011 injury.

         This evidence for the surgery and the "new" claims was heard before a deputy commissioner on May 19, 2016. The deputy commissioner requested that the parties brief why the claims were not barred by the doctrine of res judicata based on the September 21, 2015 review opinion. This request caused Levy to withdraw the total disability claims and proceed only on the partial disability and surgery claims. The requested briefs were provided, and the deputy commissioner found that the partial disability and surgery-related claims were barred by the doctrine of res judicata. The deputy commissioner also found the aggravation/acceleration claim barred by res judicata.

          Levy sought review of this decision by the full Commission. Oral argument before the Commission occurred on August 16, 2017, where Levy argued that the claim was a new compensable consequence claim which had not been litigated. The full Commission affirmed the deputy commissioner's opinion on September 7, 2017, leading Levy to seek reconsideration, ...


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