COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
VERONICA HELEN THOMAS
OPINION BY
v. Record No. 0018-96-4 JUDGE RICHARD S. BRAY
JULY 2, 1996
NORDSTROM PENTAGON CITY/
NORDSTROM, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Craig A. Brown (Ashcraft & Gerel, on briefs),
for appellant.
Michael N. Salveson (Hunton & Williams, on
brief), for appellee.
Veronica Helen Thomas (claimant) appeals a decision of the
Virginia Workers' Compensation Commission (commission),
complaining that the commission erroneously concluded that she
(1) failed to "timely request" a review of the deputy
commissioner's denial of her motion to dismiss the hearing
applications of Nordstrom Pentagon City/Nordstrom, Inc.
(employer), (2) was released to her pre-injury employment on
November 30, 1992, and (3) neglected to report earnings which
exceeded her pre-injury wage. Finding no error, we affirm the
commission.
On June 26, 1990, claimant sustained employment-related
injuries to her knees, hands, and back, and was awarded benefits
from employer for the resulting disability. Beginning in
December, 1992, employer filed several motions with the
commission, each seeking suspension of the award, and attended by
applications for related hearings. The first, received by the
commission December 24, 1992, alleged that claimant had been
released to her pre-injury employment on November 30, 1992, and
that any existing disability was not attributable to the
industrial accident. A motion and application filed December 3,
1993, asserted that claimant had "procured" the subject benefits
through fraud and failed to report earnings in accordance with
Code § 65.2-712. The third motion, received January 5, 1994,
alleged that claimant had been released to pre-injury employment
on December 9, 1993.
Before referring these motions to the hearing docket, the
commission's Claims Division required employer to "pay
compensation [for two periods] pursuant to the . . . award," in
accordance with Rule 1.4(C). 1 Employer subsequently forwarded
claimant a check for $5,896.42 on May 26, 1994, $68 less than the
amount prescribed by the order. Nevertheless, the matters were
all referred to the hearing docket on June 3, 1994, without
objection from claimant.
In early September, 1994, claimant moved the commission to
dismiss the pending motions pursuant to Rule 1.4(C), contending
that employer had failed to fully satisfy the payment required by
the commission. Shortly thereafter, employer paid claimant an
additional $100 to resolve the insufficiency and, on September
1
Rule 1.4(C) requires that "[c]ompensation . . . be paid
through the date the application was filed," subject to certain
inapplicable exceptions.
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14, 1994, the deputy commissioner denied claimant's motion. 2
Claimant did not request full commission review of this decision,
but included the issue in her appeal to the commission of the
deputy's later decision, which granted employer "all of the
relief requested in its applications for hearing." On review,
the commission concluded that the ruling on claimant's Rule
1.4(C) motion to dismiss was res judicata and affirmed the
deputy's decision on all issues.
RES JUDICATA: RULE 1.6(A)
"The commission has the power to make and enforce 'rules not
inconsistent with [the Workers' Compensation] Act, for carrying
out the provisions of this Act.'" Specialty Auto Body v. Cook,
14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992) (citation
omitted). "When a challenge is made to the commission's
construction of its rules, 'our review is limited to a
determination whether the commission's interpretation of its own
rule was reasonable.'" Id. (citation omitted). The agency will
be "accorded great deference" and its interpretation of its rules
"will not be set aside unless arbitrary and capricious."
Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 159, 384 S.E.2d
622, 626 (1989), appeal dismissed, 398 S.E.2d 78 (Va. 1990).
2
Employer subsequently filed two additional motions and
applications for hearing, dated October 7, 1994, and November 4,
1994, respectively, both alleging claimant's failure to report
for independent medical examinations. All motions were
consolidated for hearing before the deputy commissioner on March
30, 1995.
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Rule 1.6(A) of the commission rules provides that "[a]
request for review of a decision accepting or rejecting a change
in condition claim or application shall be filed within 20 days
from date of the decision. No oral argument is permitted."
Here, claimant failed within the time allotted by Rule 1.6(A) to
request a review of the deputy commissioner's initial ruling
denying her motion to dismiss the applications. Accordingly, the
commission concluded that the deputy commissioner's determination
of the Rule 1.4(C) issue was res judicata. See K & L Trucking
Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985).
We find that the commission's application of Rule 1.6(A) was
reasonable and consistent with provisions of the Act and,
therefore, beyond our review. 3
RETURN TO PRE-INJURY EMPLOYMENT
Under familiar principles, we view the evidence in the light
most favorable to the prevailing party, employer in this
instance. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990). "It lies within the
commission's authority to determine the facts and the weight of
the evidence, and its findings in that regard, when supported by
credible evidence, will not be disturbed on appeal." Rose v.
3
Contrary to claimant's assertions during oral argument, the
commission's construction and application of Rule 1.6(A) would
not require this Court to entertain appeals of such decisions as
a "final award." See Code §§ 17-116.04, 65.2-706; Holly Farms
Foods, Inc. v. Carter, 15 Va. App. 29, 34, 422 S.E.2d 165, 167
(1992).
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Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396
S.E.2d 392, 395 (1990). "A question raised by conflicting
medical opinion is a question of fact." Commonwealth v. Powell,
2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "The fact that
there is contrary evidence in the record is of no consequence if
there is credible evidence to support the commission's finding."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
Dr. Juan L. Jammes, a neurologist, evaluated claimant on
November 30, 1992, and reported "no objective evidence of
disability." Rather, he opined that claimant was "suffering from
functional overlay." The commission found Dr. Jammes' report,
considered with other medical evidence and observations of
claimant "performing tasks . . . inconsistent with her claimed
disability," "sufficient to prove that . . . claimant was
released to return to her preinjury employment on November 30,
1992," a decision clearly supported by credible evidence.
EARNINGS
Code § 65.2-712 provides, in pertinent part, that "[s]o long
as an employee receives payment of compensation . . . such
employee shall have a duty immediately to disclose to the
employer . . . any incarceration, return to employment or
increase in his earnings."
It is uncontroverted that both before and after the accident
claimant was a "distributor" of Herbalife products and became a
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Herbalife "supervisor" in June, 1991. Her responsibilities
included ordering, receiving, storing, selling, packaging, and
delivering an array of Herbalife products. Claimant's tax
returns indicated 1991 gross sales of $7,648.82, followed by
substantial annual increases, rising to approximately $73,000 in
1994. Although claimant's tax records and testimony reflected
significantly less net income, the evidence indicated that she
repeatedly represented to others that her net earnings ranged
from $3,000 to $5,000 per month. 4 In assessing these conflicts
in the record, the commission characterized claimant's evidence
as "unpersuasive" and "[in]conclusive," concurred in the deputy's
finding that claimant was "not credible," and concluded that
claimant had earned a net income which exceeded her pre-injury
average weekly wage. This factual finding is also well-supported
by credible evidence and will not be disturbed on appeal.
Accordingly, we affirm the decision of the commission.
Affirmed.
4
Testimony established that claimant once proclaimed monthly
earnings of $8,000 to $10,000 to an audience attending an
Herbalife "seminar," leaving her "debt-free."
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