COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner
CATHERINE MORRISSEY JACKSON
MEMORANDUM OPINION*
v. Record No. 2889-99-2 PER CURIAM
MAY 2, 2000
J. SARGENT REYNOLDS COMMUNITY COLLEGE/
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Catherine Morrissey Jackson, pro se, on
brief).
(Mark L. Earley, Attorney General; Gregory E.
Lucyk; Senior Assistant Attorney General;
Scott J. Fitzgerald, Assistant Attorney
General, on brief), for appellee.
Catherine Morrissey Jackson (claimant) contends that the
Workers' Compensation Commission (commission) erred in (1)
failing to address the issue of whether her attorney's fees
should be assessed against the employer and insurer; (2)
ordering that her attorney was entitled to collect $1,500 in
attorney's fees directly from her; (3) not addressing the issue
of whether attorney's fees should be assessed against employer
pursuant to Code § 65.2-713; (4) failing to find that her
attorney should be estopped from seeking payment of his
attorney's fees and costs directly from her when he failed to
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
raise the issue of employer's responsibility for those costs and
fees before the commission; (5) dismissing the show cause order
against employer; (6) finding in its July 9, 1999 opinion that
claimant was responsible for her attorney's alleged costs
without affording her due process; and (7) not addressing the
issue of claimant's attorney's conflict of interest created when
he was awarded attorney's fees directly from claimant and,
therefore, had no incentive to pursue claimant's claim that
employer should be held responsible for the attorney's fees.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
On April 2, 1999, after a hearing, Deputy Commissioner Tabb
awarded claimant compensation and medical benefits and entered
an award of $1,500 attorney's fees to be paid to claimant's
attorney from accrued compensation. Neither party sought review
of the April 2, 1999 opinion and, therefore, it became final.
On March 31, 1999 and April 28, 1999, claimant's attorney
requested that claimant reimburse him for his costs incurred of
$81.10.
By letter dated May 14, 1999, claimant's attorney requested
a show cause order be issued by the commission against the
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employer/insurer because his attorney's fees had not yet been
paid from claimant's accrued compensation.
On May 25, 1999, a claims examiner sent a letter to
claimant informing her that her attorney was permitted to charge
her directly for costs over and above his attorney's fees. The
letter also informed claimant that if she disagreed with its
contents she had twenty days to file an appeal. On June 11,
1999, claimant filed a request for review with respect to the
issue of her attorney's costs.
On June 3, 1999, the commission issued an order against
employer/insurer to show cause why they should not be held in
contempt for failure to timely comply with payment of attorney's
fees as directed in the April 2, 1999 opinion.
On June 24, 1999, the commission entered an order finding
that because claimant was paid her full salary during the period
of disability, no accrued compensation was owed and, therefore,
there were no monies from which to deduct the $1,500 attorney's
fees. Accordingly, the commission quashed the show cause order.
Neither party sought review of that decision. By letter dated
June 30, 1999, claimant's attorney renewed his request that the
commission order claimant to pay the $1,500 attorney's fees
directly to him.
On July 9, 1999, the commission issued a review opinion
with respect to the costs issue only. In that opinion, the
commission found claimant responsible to reimburse her attorney
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for $81.10 in costs. Claimant did not appeal that decision to
this Court and, therefore, it became final.
On August 25, 1999, at the request of claimant's counsel,
Deputy Commissioner Mayo entered an order allowing claimant's
counsel to collect his previously awarded attorney's fees
directly from claimant. On September 13, 1999, claimant filed a
request for review of the August 25, 1999 order. In that
request for review, claimant argued for the first time that
employer should pay her attorney's fees because she prevailed in
the case, or in the alternative, her attorney's fees should be
deducted from her accrued vacation time. Claimant also asserted
that because her attorney did not appear at the June 24, 1999
show cause hearing and he did not appeal the resulting order,
the commission should reconsider its ruling regarding the
attorney's fees issue. Claimant's attorney filed a written
statement in which he argued that claimant should be permitted
to raise the issue of whether employer/insurer should be held
liable for claimant's attorney's fees and costs pursuant to Code
§ 65.2-713.
On November 8, 1999, the commission affirmed the deputy
commissioner's August 25, 1999 order, finding no basis to assess
claimant's counsel's attorney's fees against employer. In so
ruling, the commission found as follows:
[C]laimant did not raise the issue of the
assessment of costs and fees pursuant to Va.
Code Ann. § 65.2-713 in a hearing on this
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matter. The Commission has the discretion
to award an attorney's fee to be paid by the
employer if it determines that proceedings
are brought or defended by the employer or
insurer without reasonable grounds.
However, no such findings have been made in
this matter, and no award of attorney's fees
pursuant to Va. Code Ann. § 65.2-713 has
ever been made in any of the proceedings
which have persisted before the Commission
in regard to the payment of the assessed
attorney's fees. The attorney's fees have
always been ordered to be either deducted
from the claimant's accrued benefits or to
be paid by the claimant, herself, presumably
from the salary which she was paid in lieu
of compensation benefits or from other
resources.
We decline to reopen the issue of an
award of fees pursuant to § 65.2-713 as this
issue was not raised before either of the
deputy commissioners who have considered the
issue. Furthermore, we see no evidence that
there has been at any time an unreasonable
defense asserted in this matter.
Claimant did not appeal to this Court the commission's July
9, 1999 opinion requiring that she pay her attorney's costs of
$81.10. Therefore, that decision became final, and we cannot
address any issues raised by claimant in this appeal with
respect to costs. In addition, claimant did not request review
before the full commission of the June 24, 1999 decision
quashing the show cause order. Therefore, we cannot address
claimant's contention on appeal that the commission erred in
dismissing the show cause order.
Because claimant failed to raise the issue of the
assessment of attorney's fees issue pursuant to Code § 65.2-713
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before either of the deputy commissioners that previously
considered the attorney's fees issue, the full commission,
apparently in accordance with the established Rules of the
Workers' Compensation Commission, declined to address that
issue. We also cannot address claimant's arguments for the
first time on appeal that employer should pay her attorney's
fees and costs pursuant to Code § 65.2-713 or that her attorney
should be estopped from collecting his fees from her. Claimant
did not properly raise these issues before the commission. See
Hervey v. Newport News Shipbuilding & Dry Dock Co., 12 Va. App.
88, 91-92, 402 S.E.2d 688, 690 (1991) (citing Rule 5A:18).
Accordingly, we affirm the commission's decision.
Affirmed.
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