COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Beales
Argued at Lexington, Virginia
ERIC LAMONT HODNETT
OPINION BY
v. Record No. 1824-10-3 JUDGE RANDOLPH A. BEALES
MAY 10, 2011
STANCO MASONRY, INCORPORATED AND
AMERISURE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Robert L. Morrison, Jr.; Peter M. Sweeny (Williams, Morrison,
Light & Moreau, on brief), for appellant.
S. Vernon Priddy, III (Michael L. Goff Jr.; Two Rivers Law Group,
P.C., on brief), for appellees.
Eric Lamont Hodnett (claimant) appeals from an opinion of the Workers’ Compensation
Commission (the commission) that affirmed a deputy commissioner’s decision regarding the
issuance of a certified copy of an open worker’s compensation award. Claimant argues that the
commission erred in finding that the certification was only issued as an authenticated document
of the commission and not issued for enforcement purposes pursuant to Code § 65.2-710.
Claimant also argues (1) that the commission made a factual error in concluding that the record
lacked evidence of noncompliance with the award by Stanco Masonry (employer), (2) that the
commission erred in not finding that claimant’s due process rights were violated, and (3) that the
commission erred in interpreting its rules to allow suspension of the open award pending
resolution of employer’s motion to terminate the award. 1 For the following reasons, we affirm
the commission.
1
For purposes of our discussion of this appeal, we have consolidated some of claimant’s
assignments of error.
I. BACKGROUND
Claimant was injured in a compensable accident and entered into an agreement with
employer for temporary total disability compensation. The commission approved the agreement
and entered the award on February 9, 2007. On October 29, 2008, employer filed an application
for termination of the award, together with supporting documentation to establish that claimant
had returned to work with a different employer on March 14, 2007.
While employer’s application was pending, claimant sent a letter to the commission
requesting that it “certify the Award” pursuant to Code § 65.2-710, which allows the commission
to issue certificates for enforcement of its awards in a circuit court “upon satisfactory evidence of
noncompliance with the same.” In his letter, claimant noted, “[i]f the file has been referred to a
Deputy Commissioner for hearing[,] please direct the Commissioner holding the file to enter the
certification as required by the statute.”
On April 29, 2009, a deputy commissioner denied claimant’s request to “find evidence of
noncompliance” under Code § 65.2-710. The deputy noted that claimant’s award was suspended
under the commission’s Rule 1.4, pending a decision on employer’s application for termination
of the award. The deputy agreed to instruct the clerk of the commission to certify the award, but
explicitly stated that “it [was] not certified pursuant to § 65.2-710.” The issued certificate stated
that the attached copy was “a true copy of the Award Order entered on February 9, 2007, in
which no timely appeal was filed with the Commission.” Claimant sent the issued certificate to
the Danville Circuit Court, asking that it be recorded as a judgment lien.
Claimant responded to the deputy commissioner’s letter, claiming that no commission
rule allowed the suspension of an open award pending resolution of an employer’s application
for termination. He also argued that the deputy did not need to find noncompliance by employer
in order to order the issuance of a certificate under Code § 65.2-710. The deputy responded,
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explaining that Rule 1.4 suspended the award and stating that her previous “letter ruling remains
unchanged.”
Employer requested that the full commission conduct a review of the issuance of the
certificate. 2 Employer asked the full commission to find that the deputy erred in issuing the
certificate. Employer argued that the certificate should not have been issued because the deputy
did not find satisfactory evidence of noncompliance as required by Code § 65.2-710. Employer
also argued that the commission should find that the certificate was inappropriate because it did
not indicate that the award was suspended. Claimant did not request any review by the full
commission. However, claimant did file a brief that discussed the commission’s rules and due
process. In this brief, he asked the commission to affirm “the certification of the Award by the
Clerk of the Commission.”
On review, the only issue that the commission considered was “whether the Commission
may certify an award otherwise than pursuant to Section 65.2-710.” The commission held that it
had “authority to certify [an award], for authentication only, in the absence of evidence of
noncompliance.” The commission affirmed the certification of the award for authentication
purposes only. 3
In its opinion, the commission noted that “claimant did not appeal” the deputy
commissioner’s refusal to find evidence of noncompliance “and, accordingly, that issue is not
2
After employer asked for review by the full commission, the deputy commissioner
continued the previously scheduled hearing on employer’s application to terminate claimant’s
benefits. The record before us is silent regarding any resolution of employer’s application, and
no decision of the commission regarding employer’s application (or the suspension of benefits
pending resolution of that application) is currently before this Court. The only decision reviewed
and appealed in this case concerns the issuance of a certificate that authenticated a copy of the
February 9, 2007 award.
3
One commissioner concurred, agreeing that the commission had authority to certify an
award for authentication, but then finding that claimant’s due process rights were violated and
concluding that the certificate “was issued pursuant to Code § 65.2-710.”
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before us.” Moreover, the commission explicitly concluded that it did not need to address
claimant’s due process arguments to resolve the issue before it. The commission also did not
address employer’s argument that the certificate should have indicated that the February 9, 2007
award was suspended pending resolution of employer’s application for termination of the award.
Claimant did not file a motion asking the commission to reconsider its decision.
Claimant appealed the commission’s decision to this Court. Although he asks this Court
to consider several assignments of error, we find that only one is properly presented to us.
II. ANALYSIS
A. The Certificate
Claimant argues that the certificate was actually issued pursuant to Code § 65.2-710 for
purposes of enforcement. He contends that he asked for a certificate for enforcement pursuant to
Code § 65.2-710, and, thus, according to claimant, the certificate must have been issued pursuant
to that code section. However, the interpretation of a commission document is not left to the
desires of a claimant. The commission determines the nature of its orders and rulings.
Therefore, we find the commission did not err in finding that the certificate was not issued
pursuant to Code § 65.2-710.
The deputy commissioner clearly ruled that the certification was not issued pursuant to
Code § 65.2-710. 4 The full commission affirmed this ruling. The commission found that its
own document, i.e., the certificate, was not issued pursuant to any enforcement provisions in the
Code, but rather the certificate was issued as a true and accurate copy of an order of the
commission. This finding by the commission is a determination of a fact (i.e., that the document
was only an authentication of the order). This finding is also an interpretation by the
4
Code § 65.2-710 states: “Orders or awards of the Commission may be recorded,
enforced, and satisfied as orders or decrees of a circuit court upon certification of such order or
award by the Commission. The Commission shall certify such order or award upon satisfactory
evidence of noncompliance with the same.”
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commission of its own order. Thus, this Court must give due deference to these findings of the
commission. See Vanzant v. Southern Bending Co., 143 Va. 244, 246, 129 S.E. 268, 268 (1925)
(the commission’s factual findings are “conclusive and binding” on appeal); Rusty’s Welding
Serv., Inc. v. Gibson, 29 Va. App. 119, 130, 510 S.E.2d 255, 260 (1999) (en banc) (“[W]e hold
that the commission is entitled to interpret its own orders in determining the import of its
decisions.”). We conclude that the commission did not err in finding that the certificate was
issued pursuant to its general statutory authority, rather than pursuant to Code § 65.2-710.
The commission clearly had authority to issue a certificate without relying on Code
§ 65.2-710. In general, every agency of the Commonwealth has authority to authenticate its
records. See Code § 8.01-391 (allowing certification of business records). Under Code
§ 8.01-391(B), any “commission” in Virginia that is acting pursuant to its legal authority may
create copies of its records that will be admissible in court if the copy is certified by the
commission. The Workers’ Compensation Commission, likewise, has this authority.
In addition, under Code § 8.01-390(A), “[c]opies of records” from “any political
subdivision or agency” of the Commonwealth “shall be received as prima facie evidence” if they
are “authenticated to be true copies” by the custodian or the custodian’s supervisor. Under this
statute, agencies of the Commonwealth are allowed to produce certified copies of their records
that can be used as evidence in a court proceeding. As the Workers’ Compensation Commission
is an agency of the Commonwealth, this statute also provided authority for the commission to
issue a certificate for authentication purposes only – rather than for enforcement purposes under
Code § 65.2-710.
In this case, the commission was acting pursuant to its legal authority when it entered the
February 9, 2007 award for benefits to claimant, as the agency responsible for workers’
compensation awards. See Code § 65.2-201 (general duties of the commission). Therefore, the
commission did not need to rely on Code § 65.2-710 and was not required to issue a certificate
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for enforcement. Instead, the commission could issue a certificate authenticating the award,
pursuant to the other provisions in the Code. We conclude, therefore, that the commission had
authority here to issue the certificate of authentication. It is not limited to issuing a certificate of
enforcement pursuant to the requirements of Code § 65.2-710. 5
Claimant essentially contends that the commission did not need evidence beyond his
assertion of noncompliance to issue a certificate under Code § 65.2-710, so the analysis used by
the commission to reach its finding was flawed. He contends that the commission ruled
previously in Black v. A.F.B. Contractors, Inc., 63 O.I.C. 14 (1984), that evidence of
noncompliance was unnecessary under an earlier version of Code § 65.2-710. 6 As Black
involved the interpretation of Code § 65.2-710, we review the commission’s interpretation of
that statute de novo. Town of Waverly Law Enforcement v. Owens, 51 Va. App. 277, 280, 657
S.E.2d 161, 162 (2008).
We disagree with claimant’s interpretation of Black and of Code § 65.2-710. In Black,
the commission issued a certificate using substantially the same wording as the certificate here,
and, as here, the employer contended that the certificate should not have been issued. The
commission found that the clerk did not err as she “was carrying out her ministerial duties in
furnishing certified copies, as the awards are considered a matter of public record, and the
certification only pertained to the fact that the awards were true copies of those contained in the
Industrial Commission’s record.” 63 O.I.C. at 15. The commission then reversed the portion of
the deputy’s opinion that “require[d] the Clerk to have evidence of noncompliance with an award
had she known it was going to be used for enforcement purposes.” Id. at 16.
5
The certificate had no designation on it of whether it was being issued pursuant to Code
§ 65.2-710 or pursuant to Code §§ 8.01-390 and 8.01-391.
6
Opinions of the commission are certainly not binding on this Court in any way, but in
some cases they can potentially be persuasive. See Pruden v. Plasser Am. Corp., 45 Va. App.
566, 580, 612 S.E.2d 738, 745 (2005).
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The commission in Black essentially made the same ruling as the commission did in this
case. The commission’s opinion in Black did not rule that a certificate issued pursuant to Code
§ 65.2-710 did not require a finding of evidence of noncompliance, but instead ruled that the
issuance of a certificate as a “ministerial duty” did not require such a finding. 7
Code § 65.2-710 states: “Orders or awards of the Commission may be recorded,
enforced, and satisfied as orders or decrees of a circuit court upon certification of such order or
award by the Commission. The Commission shall certify such order or award upon satisfactory
evidence of noncompliance with the same.” The plain meaning of the second sentence – the
sentence stating, “The Commission shall certify such order or award upon satisfactory evidence
of noncompliance with the same” – is that the commission can certify an award for enforcement
purposes when “satisfactory evidence of noncompliance” with that award is presented to the
commission. See Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004) (holding that, where
a statute’s terms are “clear and unambiguous,” an appellate court “looks no further than the plain
meaning of the statute’s words” when construing that statute).
In contrast, claimant interprets Black as holding that the commission must issue a
certificate pursuant to the provisions of Code § 65.2-710 with simply the claimant’s assertion of
noncompliance. Such an interpretation essentially eliminates the commission’s power to analyze
whether such evidence is “satisfactory” pursuant to the explicit wording of Code § 65.2-710.
Thus, we cannot agree with claimant’s interpretation of the commission’s holding in Black or
with claimant’s reading of the statute. See Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va. 339,
345, 666 S.E.2d 523, 527 (2008) (rendering a phrase “mere surplusage . . . is contrary to the
settled rule . . . that every provision in or part of a statute shall be given effect if possible”).
7
In its opinion here, the commission itself interpreted its decision in Black as holding
that the commission has “authority to issue certified copies of awards for various administrative
purposes.”
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Although some of the language in Black is broad, the commission in Black essentially ruled that
a clerk has authority to issue a certificate like the one issued here for authentication purposes –
pursuant to the commission’s general authority – even if the clerk knows that the certificate may
be presented to a court as part of pending litigation.
B. The Remaining Issues
Claimant raised several additional assignments of error. We find that none of these
issues are preserved for appeal.
1. Evidence of Noncompliance
Claimant argues that the commission erred in finding that there was no evidence of
noncompliance. However, the deputy commissioner initially denied claimant’s request that she
find evidence of employer’s noncompliance with the 2007 award. Claimant did not ask the full
commission to review this decision, and so the commission did not review this decision,
specifically noting “that issue is not before us” because claimant had not asked for review. See
Comm’n Rule 3.1. As a result, on appeal to this Court, we have no commission ruling to review
on the issue of noncompliance. See Steadman v. Liberty Fabrics, Inc., 41 Va. App. 796, 801 n.3,
589 S.E.2d 465, 467 n.3 (2003); Classic Floors, Inc. v. Guy, 9 Va. App. 90, 94, 383 S.E.2d 761,
763 (1989). We also note that claimant did not ask for reconsideration after the commission
issued its opinion. Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546,
548 (2003) (explaining that, if the commission fails to address an issue, then a party should file a
motion to reconsider the issue in order to preserve the argument for appeal). As a result, we
cannot consider claimant’s argument that he presented satisfactory evidence of noncompliance
so that the commission should have issued a certificate for enforcement pursuant to Code
§ 65.2-710.
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2. The Commission’s Rules and Due Process
Claimant also argues that the commission has misinterpreted its rules to allow suspension
of an award pending an employer’s application for termination of benefits. In addition, he
argues that such suspension violates his due process rights. These arguments are not properly
before this Court.
First, this case involves an appeal of the commission’s decision to issue a certificate of
authentication. The certificate itself does not suspend claimant’s award, and claimant is not
arguing that the process for issuance of the certificate violated his due process rights. Thus, any
discussion of the issues of the commission’s rules and due process in this opinion would be dicta
as the underlying award and the enforcement of that award are not before this Court. See
Newman v. Newman, 42 Va. App. 557, 565-66, 593 S.E.2d 533, 537-38 (2004) (en banc)
(explaining that an appellate court should not consider arguments that are not essential to the
case before it).
In addition, the commission explicitly declined to rule on these issues. Thus, the
commission in this case did not err in interpreting its rules, and it did not violate claimant’s due
process rights in relation to his award of benefits, as claimant contends in his assignments of
error. The commission here did not interpret its rules because the issue before it concerned only
the issuance of a certificate. The commission did not rule on the status of claimant’s benefits
because the case before it did not involve a decision on the merits of employer’s application to
terminate claimant’s benefits. Because we have no commission ruling on these issues before us,
we cannot consider them in this appeal. “We cannot consider alleged error on a ruling the
commission never made.” Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 249 n.7, 701
S.E.2d 72, 79 n.7 (2010).
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III. CONCLUSION
We hold that the commission did not err in this case. The certificate of authentication
was issued pursuant to the general authority of the commission – under Code §§ 8.01-390 and
8.01-391 and not pursuant to Code § 65.2-710. Thus, we affirm the ruling of the commission.
Affirmed.
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