4/6/2018: VA WCC Denies Slip and Fall Claim Appeal in F&P Case Victory

On April 3, 2018, Franklin & Prokopik attorney Alex Mayfield from the firm’s Herndon, Va. office secured a decision in favor of the Appellee in the case of Debra Levy v. Wegmans Food Markets, Inc.  The case, an appeal from a previously denied workers’ compensation claim, was argued in front of the Court of Appeals of Virginia in Fredericksburg, Va.

Levy, an employee of Wegmans, damaged her knee, which had pre-existing arthritis, in a June 2011 incident where she slipped and fell in the back of the store’s walk-in freezer. This injury required surgery and Levy filed a number of claims related to this injury over a prolonged period of time.  The claim at issue was filed in April 2015, seeking approval of arthroscopic knee surgery, proposed by Levy’s doctor and protective disability claims continuing from January 2015.  In a September 2015 review opinion the full Commission found no indication in her doctor’s records that the claimant’s compensable injury was playing a role in any disability which [Levy] may have had.  Subsequent to this decision, Levy filed a series of new claims predicated on the very same surgical opinion addressed in the full Commission’s September, 2015 decision.  Claimant argued that her new claims were not barred by res judicata because she presented a new theory founded in a compensable consequence claim rather than a direct causal link.

While the claimant styled her filings as “new” claims, a deputy commissioner in May 2016 held that despite how those claims were pleaded, they were indeed barred by res judicata, and the full Commission went on to affirm the ruling.

Levy subsequently appealed the Commission’s decision to the Court of Appeals the following October, bringing forth various arguments as to why her injuries should be fairly categorized as “new”.  The Virginia Court of Appeals rejected her arguments, holding that the right of a party to allege alternative theories was not an invitation to create “new” evidence and “take another swing,” at proving her case.   The Opinion went on to state that Levy had the opportunity to offer evidence of causation for the contemplated surgery at the first hearing, and she chose not to. To reward her with another opportunity to do so would incentivize piecemeal litigation, undermine the finality of judgments, and multiply the number of proceedings – the very evils the doctrine of res judicata was developed to address. Consequently, the Commission’s judgment was affirmed.  This is the first time the Court of Appeals has address res judicata in the workers’ compensation context in several years.