COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
JOHN J. McCLURE, JR.
MEMORANDUM OPINION*
v. Record No. 1735-02-3 PER CURIAM
SEPTEMBER 24, 2002
LEO'S EXTERMINATING COMPANY AND
AMERICAN INTERSTATE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John J. McClure, pro se, on brief).
No brief for appellees.
John J. McClure, Jr. (claimant) contends the Workers'
Compensation Commission erred in finding that he failed to prove
fraud, by clear and convincing evidence, as a ground for
vacating the commission's February 20, 2001 opinion denying his
May 8, 2000 Claim for Benefits. Specifically, claimant argues
that his witnesses were not permitted to testify at the July 5,
2000 evidentiary hearing regarding his May 8, 2000 claim and
that Deputy Commissioner Dely improperly denied claimant's right
to subpoena witnesses to testify at the September 12, 2001
hearing on his fraud claim. Claimant also alleges fraudulent
conduct by his former attorney, employer's physicians, and
employer's attorney. Upon reviewing the record and opening
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
The commission has the implied power to vacate an award
where, by clear and convincing evidence, the moving party proves
that the award was procured by fraud or mutual mistake. Harris
v. Diamond Constr. Co., 184 Va. 711, 721-22, 36 S.E.2d 573, 578
(1946). Unless we can say as a matter of law that claimant's
evidence sustained his burden of proving fraud by clear and
convincing evidence, the commission's findings are binding and
conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970).
Our review of the record does not reveal clear and
convincing evidence of fraud necessary to vacate the
commission's February 20, 2001 decision. We agree with Deputy
Commissioner Dely's holding set forth in his January 28, 2002
opinion, and affirmed by the commission, as follows:
Upon consideration of the entire record in
this case, we find no grounds for the
claimant's allegation of fraud involving the
Deputy Commissioner's Opinion in this case,
or against any of the parties who
participated in these proceedings.
[Claimant] has presented no evidence of
fraud, only disagreements as to factual and
medical issues interpretations, which do not
constitute fraud.
In short, claimant seeks to have his May 8, 2000 Claim for
Benefits re-litigated. However, absent fraud, which claimant
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has failed to prove by clear and convincing evidence, the
commission's February 20, 2001 decision, for which claimant
withdrew his appeal to this Court, is final and binding upon the
parties and this Court. Claimant's bare assertions of fraud,
not supported by clear and convincing evidence, are not
sufficient grounds to vacate the commission's opinion.
We also agree with the commission's finding that "since the
earlier Commission decision was based upon primarily the medical
reports, it was not appropriate to subpoena additional
witnesses."
Code § 65.2-202 provides that attendance of witnesses
"shall be required by subpoena of the Commission upon timely
request therefor by any party to a proceeding before it, unless
the Commission finds that the issuance of such subpoena is for
dilatory purposes, would cause substantial inconvenience to such
witnesses, or is not likely to produce significant relevant
evidence."
In an August 21, 2001 letter to claimant, Deputy
Commissioner Dely concluded that compelling attendance of the
six witnesses requested by claimant would cause them substantial
inconvenience. Therefore, the deputy commissioner examined each
subpoena request to determine the relevancy of the anticipated
testimony. He concluded that the witnesses' testimony either
would add no significant relevant information, was irrelevant to
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the issues, or did not pertain to a matter under the
commission's jurisdiction.
After carefully reviewing Deputy Commissioner Dely's
August 21, 2001 letter outlining the reasons for his denial of
claimant's subpoena requests for witnesses to testify at the
September 12, 2001 hearing and the record in this case, we find
no abuse of discretion in the deputy commissioner's refusal to
issue the six witness subpoenas.
Based upon this record, we cannot find as a matter of law
that claimant's evidence established fraud by clear and
convincing evidence. Accordingly, we affirm the commission's
decision.
Affirmed.
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