COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
CLINCH VALLEY MEDICAL CENTER AND
TRANSPORTATION INSURANCE COMPANY
OPINION BY
v. Record No. 0828-00-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 19, 2000
JOHNNIE S. HAYES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ramesh Murthy (Lisa Frisina Clement; Penn,
Stuart & Eskridge, on briefs), for
appellants.
D. Edward Wise, Jr. (Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Clinch Valley Medical Center appeals the continuation of an
award of benefits to Johnnie S. Hayes by the Workers'
Compensation Commission. The employer contends the commission
(1) acted without authority when it authorized a deputy
commissioner to sit with two commissioners to review a
termination of the award opinion and (2) erred when it found the
employer failed to prove the employee's condition was not
related to the work accident. We conclude the commission did
not err and affirm its decision.
The employee fell and hit the back of his head on concrete
stairs. The commission awarded benefits commencing October 31,
1998 pursuant to a memorandum of agreement. On June 23, 1999,
the employer filed an application alleging the employee's
current condition was not related to the work accident. The
deputy commissioner granted the application and terminated
compensation. On a review of the record, a deputy commissioner
sat with two members of the commission. They concluded the
employer "failed to prove that the effects of the work accident
have fully dissipated, and that the [employee's] continuing
disability is due entirely to another cause" and reinstated the
employee's benefits. The employer filed a motion to reconsider
and argued a deputy could not sit in place of one of the three
members of the commission to hear the review.
The three members of the commission considered the motion
to reconsider and denied it unanimously. They reasoned the
commission was responsible for adjudicating all issues and
controversies relating to the Workers' Compensation Act. Code
§ 65.2-201(A). 1 The commission had the authority to make rules
and regulations for carrying out the Act. The commission could
appoint deputies as necessary to carry out its responsibilities
1
Code § 65.2-201. General duties and
powers of the Commission.
A. It shall be the duty of the
Commission to administer this title and
adjudicate issues and controversies relating
thereto. The Commission shall make rules
and regulations for carrying out the
provisions of this title.
B. The Commission may appoint
deputies, bailiffs, and such other personnel
as it may deem necessary for the purpose of
carrying out the provisions of this title.
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under the Act, Code § 65.2-201(B), and deputies exercised such
powers and duties as delegated by the commission. Code
§ 65.2-203(A). 2
The commission explained the need to delegate deputy
commissioners to sit with members because of the expanding work
of the commission. The volume of cases, together with their
increasing complexity and length, had increased the demands on
the commission while the need for timely resolution of the cases
had remained constant. In addition to its adjudicatory
responsibilities, the commission noted that it had
responsibility for administering the Act and setting policy.
The employer argues Code § 65.2-705 3 limits the general
powers of the commission to delegate duties to deputies. A
2
Code § 65.2-203. Powers and duties of
deputy commissioners and bailiffs.
A. Deputy commissioners shall have the
power to subpoena witnesses, administer
oaths, take testimony and hear the parties
at issue and their representatives and
witnesses, decide the issues in a summary
manner, and make an award carrying out the
decision. Deputies may exercise other
powers and perform any duties of the
Commission delegated to them by the
Commission.
3
Code § 65.2-705. Review of award;
rehearing.
A. If an application for review is
made to the Commission within twenty days
after receipt of notice of such award to be
sent as provided in subsection A of
§ 65.2-704, the full Commission, except as
provided in subsection B of § 65.2-704 and
if the first hearing was not held before the
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deputy commissioner can sit in place of a commissioner but only
when the commission reviews a case by ore tenus hearing of the
parties, their representatives, and witnesses. The employer
contends a deputy commissioner may not sit when the review is a
review of the record without an appearance by the parties,
representatives, and witnesses.
The employer argues Code § 65.2-705(A) mandates a review by
the full commission, the three members acting jointly, with only
one exception. That exception is created by the phrase "to hear
a review" in Code § 65.2-704(B), which is incorporated by
reference. Code § 65.2-705(A) authorizes two methods for
review: "review the evidence," and "hear the parties at issue,
their representatives, and witnesses." The employer contends
the phrase "to hear a review" is a specific reference to the
second type of review and thus limits the exception to a review
of that sort. Thus, the employer concludes the chairman can
appoint a deputy only when the commission hears the parties at
issue.
full Commission, shall review the evidence
or, if deemed advisable, as soon as
practicable, hear the parties at issue,
their representatives, and witnesses. The
Commission shall make an award which,
together with a statement of the findings of
fact, rulings of law, and other matters
pertinent to the questions at issue, shall
be filed with the record of the proceedings.
A copy of the award shall be sent
immediately to the parties at issue.
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Chapter 2 of the Workers' Compensation Act formulates the
commission and defines its powers and duties. It gives the
three members of the commission joint or collective
responsibility for administering the Act and adjudicating the
issues and controversies arising from it. Code § 65.2-201(A).
It gives the commission corporate authority to delegate powers
and duties to deputies to carry out its responsibilities. Code
§ 65.2-203(A). The commission acted under this authority when
it appointed a deputy to sit with two members of the commission
to review the termination of the award in this case.
Chapter 7 of the Act, entitled "Procedure in Connection
with Awards," outlines the procedures for hearing parties at
issue. It permits the full commission, a member, or a deputy to
make an initial award. Code § 65.2-704(B). 4 However, it forbids
4
Code § 65.2-704. Hearing; award or
opinion by Commission.
A. The Commission or any of its
members or deputies shall hear the parties
at issue, their representatives, and
witnesses; shall decide the issues in a
summary manner; and shall make an award or
opinion carrying out the decision. A copy
of the award or opinion shall be sent
immediately to the parties at issue by
registered or certified mail.
B. Any member of the Commission who
hears the parties at issue and makes an
award under the provisions of subsection A
of this section shall not participate in a
rehearing and review of such award provided
under § 65.2-705. When a member is absent
or is prohibited by the provisions of this
subsection from sitting with the full
Commission to hear a review, the Chairman
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an individual member, who made an award, to sit in review of
that award. When that occurs, the statute authorizes the
chairman to appoint a deputy to sit in place of the member
disqualified. The provision also authorizes the chairman to
appoint a deputy to sit in review if a member is absent.
Chapter 7 also outlines the procedure for reviewing an
award. It directs the full commission to hear appeals. Code
§ 65.2-705(A). It contemplates a review of the evidence
presented to the first ore tenus hearing or a review by a new
ore tenus hearing of the parties, their representatives, and
witnesses. The commission has discretion to chose which method
to use; it shall "review the evidence or, if deemed advisable,
. . . hear the parties at issue." Code § 65.2-705(A).
The procedural provisions of Chapter 7 do not limit the
powers granted to the full commission in Chapter 2. They
provide the means to constitute a three-person review body when
the commission could not act because the full complement of
three members did not exist. The procedures fill a void when
the commission would not be able to exercise its Chapter 2
powers. In one case, the full commission did not exist because
of absence, in the other because of disqualification. Code
§ 65.2-704(B) speaks to the chairman's authority. It empowers
the chairman, individually, to name a deputy to act with the two
shall appoint one of the deputies to sit
with the other Commission members.
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members who are present and qualified. In granting the chairman
authority to act when the full commission would not be
available, the statute does not thereby limit the authority of
the full commission to act in other situations.
"It is a well settled principle of law that where two
statutes are in apparent conflict they should be so construed,
if reasonably possible, so as to allow both to stand and to give
force and effect to each." Kirkpatrick v. Board Of Supervisors,
146 Va. 113, 125, 136 S.E. 186, 190 (1926) (citation omitted).
"The doctrine that a special act should be construed as an
exception to the general law is not to be invoked unless the two
acts cannot be harmonized or reconciled in any other way." Id.
"Where two provisions are in potential conflict, it is this
Court's duty to construe those provisions in a manner which
would give full force and effect to both provisions." Cooper v.
Occoquan Land Dev. Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633
(1989) (citation omitted), rev'd on other grounds, 239 Va. 363,
389 S.E.2d 464 (1990). "It is a well established rule of
construction that full force and effect must be given to each
provision of statutory law." City of Richmond v. County Board
of Supervisors, 199 Va. 679, 685, 101 S.E.2d 641, 646 (1958).
There is no good reason to interpret the statute to permit
the chairman to appoint a deputy for the most complete and
formal type of review but to prohibit appointment for the less
involved, less intricate, review on the record. Similarly,
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there is no reason for the most involved review to lack an
employer representative if fairness demands such representation
and it is the reason for requiring review by members only. 5
Even if the phrase "to hear a review" is given the meaning
the employer urges, the statute would limit the chairman only
when faced with disqualification of a member who made the
initial award. As the phrase "to hear a review" appears in Code
§ 65.2-704(B), it does not modify both conditions under which
the chairman can act: a member being absent or being
prohibited. It does not apply to appointments of deputies when
a member is absent. The phrase "to hear a review" appears in
the prepositional phrase that modifies the passive verb "is
prohibited." The phrase does not modify the adjective "absent"
and accordingly cannot restrict its meaning. The chairman can
appoint a deputy for either type of review when absence creates
the need.
The phrase "to hear a review" as employed in Code
§ 65.2-704(B), refers to both methods of review, whether by
review of the evidence in the record or by physical appearance
before an ore tenus hearing by the tribunal. The verb "to hear"
5
The commission noted that Code § 65.2-200(D) requires the
commission to consist of employee and employer representatives,
but the commissioners only act in their representative capacity
when establishing policy. When acting in an adjudicatory
capacity, the commission members must be fair and impartial.
They are subject to Canon 3 of the Canons of Judicial Conduct
and the Judicial Inquiry and Review Commission. Code
§ 2.1-37.1.
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employs the same meaning used by the phrase "hearing in equity":
to adjudicate, to decide, or to examine judicially. It is not
used in the sense of perceiving by ear. See Gills v. Gills, 126
Va. 526, 541, 101 S.E. 900, 904 (1920).
The employer further maintains that even if a deputy
properly sat in this case, the commission acted improperly
because it provided no notice of the substitution or opportunity
to object. The employer argues the commission "overstepped its
statutory bounds under the framework established by the General
Assembly." There is no language in the statute requiring notice
to the parties or a hearing before the chairman appoints a
deputy to act for an absent commissioner. Code § 65.2-704(B).
Lastly, we consider the commission's decision that the
employer failed to prove the employee's current condition was
unrelated to the work accident. "Where . . . [a] causal
connection between an industrial accident and disability has
been established by the entry of an award, an employer has a
right to apply for termination of benefits upon an allegation
that the effects of the injury have fully dissipated and the
disability is the result of another cause." Celanese Fibers Co.
v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985). The
employer must prove the employee's current disability does not
result from the industrial accident by a preponderance of the
evidence. Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423
S.E.2d 214, 216 (1992). Causation is usually proven by medical
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evidence. See Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 570,
159 S.E.2d 633, 635 (1968).
Shortly after the employee's fall, he saw a neurologist
because of headaches. The neurologist diagnosed a
post-traumatic soft-tissue mass causing obstructive
hydrocephalus and referred the employee to Dr. John Jane, a
neurosurgeon. Dr. Jane inserted a shunt to allow drainage and
planned to remove the tumor later. The employee had continuing
complications and required surgery to relieve pressure from
subdural hematomas. Dr. Jane performed those procedures and
concluded the tumor, not the trauma from the fall, caused the
hydrocephalus and the subdural hematoma. Dr. Jane was not sure
when the tumor developed but felt it more likely that the tumor
did not pre-exist the trauma. The trauma brought on the
symptoms.
In January 1999, the employee sought a second opinion from
Dr. William C. Broaddus, also a neurosurgeon. The doctor
initially agreed with Dr. Jane's diagnosis, but after following
the employee for eight months, he changed his opinion. Dr.
Broaddus felt either the mass was not a tumor or it could have
existed for many years without posing a problem. Dr. Broaddus
concluded the fall caused the hydrocephalus because the employee
was healthy before the fall, the mass failed to grow in size,
the biopsy of the mass was inconclusive, and the ventricles had
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returned to normal. He believed the mass did not cause the
hydrocephalus though it may have pre-existed the fall.
The commission evaluated the conflicting medical evidence
and concluded that Dr. Jane's opinions and testimony were
internally inconsistent and "insufficient to prove the absence
of a continuing causal relationship between the work accident
and the claimant's present disability." It concluded the
claimant's "work accident accelerated the need for the surgical
condition of the hydrocephalus, and that the employer is
responsible for the side effects of this surgery." Olsten v.
Leftwich, 230 Va. 317, 319-20, 336 S.E.2d 893, 895 (1985); Dan
River, Inc. v. Turner, 3 Va. App. 592, 596, 352 S.E.2d 18, 20
(1987) (industrial accident that accelerates or aggravates a
pre-existing condition is compensable).
The commission resolves conflicts in the medical evidence,
and its decision when based upon credible evidence is binding on
this Court. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 439, 339 S.E.2d 570, 572 (1986). A determination of legal
causation is a factual finding that will not be disturbed on
appeal when it is supported by credible evidence.
Accordingly, we affirm the decision of the commission.
Affirmed.
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