COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
CITY OF ROANOKE
MEMORANDUM OPINION * BY
v. Record No. 1218-97-3 JUDGE LARRY G. ELDER
DECEMBER 23, 1997
JOHNNY G. GUILLIAMS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Steven J. Talevi, Assistant City Attorney
(Wilburn C. Dibling, Jr., City Attorney, on
briefs), for appellant.
Mary L. Poletti (Brumberg, Mackey & Wall, on
brief), for appellee.
The City of Roanoke (appellant) appeals a decision of the
Workers' Compensation Commission (commission) awarding permanent
partial disability benefits under Code § 65.2-503(B)(16) to
Johnny G. Guilliams (claimant). Appellant contends that the
commission violated its right to due process when it awarded
benefits to claimant without holding an evidentiary hearing.
Appellant also contends that the commission erred when it (1)
found that a surgical scar on claimant's chest had reached
maximum medical improvement and (2) concluded that this scar was
a "severely marked disfigurement" under Code § 65.2-503(B)(16).
For the reasons that follow, we reverse.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
EVIDENTIARY HEARING
We hold that the commission did not violate appellant's due
process rights when it awarded claimant permanent partial
disability benefits without holding an evidentiary hearing.
"'[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.' [T]he
fundamental requisite of due process of law is the opportunity to
be heard.'" Duncan v. ABF Freight System, Inc., 20 Va. App. 418,
422-23, 457 S.E.2d 424, 426 (1995) (citations omitted).
The commission's rules provide for procedures to dispose of
cases "on the record" and without holding an evidentiary hearing.
Rule 2 states that contested issues not resolved through
prehearing dispute resolution procedures "will be referred for
decision on the record or evidentiary hearing." Under Rule 2.1,
contested issues will be decided "on the record" and without
additional presentation of evidence if "it appears that there is
no material fact in dispute as to any contested issue." When the
commission determines that a decision on the record is
appropriate in a particular case, "the parties are given twenty
days to submit written statements and evidence." Rules of the
Workers' Compensation Commission 2.1(A). If a party is
dissatisfied with a decision on the record, "[r]equest for review
. . . shall proceed under [Code § 65.2-705] and Rule 3." Rules
of the Workers' Compensation Commission 2.1(B).
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The commission's rules contain mechanisms by which a party
may seek to introduce additional evidence following a decision on
the record. Generally, "[n]o new evidence may be introduced by a
party at the time of review . . . ." Rules of the Workers'
Compensation Commission 3.3. However, a party that wishes to
introduce new evidence following a request for review of an
initial decision has two options it may pursue. It may (1) seek
the opposing party's agreement to the introduction of new
evidence or (2) petition the commission to reopen the record to
receive after-discovered evidence. See Rules of the Workers'
Compensation Commission 3.3.
The commission's decision to award benefits to claimant "on
the record" was not a violation of appellant's due process
rights. Pursuant to the commission's rules, appellant had
opportunities to attempt to introduce evidence regarding
claimant's scar prior to the full commission's award. The record
established that appellant failed to act on these opportunities.
Prior to the decision by the claims examiner, appellant did
not request either discovery or an evidentiary hearing, file a
written statement of the evidence supporting its defense, or
otherwise attempt to introduce evidence. After claimant
requested the full commission to review the claims examiner's
decision, the record does not indicate that appellant sought to
introduce additional evidence through either negotiating with
claimant or filing a petition to reopen the record to receive
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after-discovered evidence. Appellant did not file a written
statement supporting its position and never argued below that any
material fact was in dispute. In light of appellant's failure to
utilize the commission's procedural rules to introduce evidence,
we cannot say that the commission's disposition of this case
without an evidentiary hearing denied appellant due process of
law.
II.
PERMANENT PARTIAL DISABILITY BENEFITS
Appellant next contends that the evidence was insufficient
to support the commission's conclusion that claimant was entitled
to permanent partial disability benefits under Code
§ 65.2-503(B)(16). Because the record is devoid of medical
evidence regarding the likelihood that the appearance of
appellant's scar will remain unchanged, we agree.
Code § 65.2-503 provides benefits to indemnify injured
employees for permanent loss and disfigurement that is either
partial or total. See Tumlin v. Goodyear Tire & Rubber Co., 18
Va. App. 375, 380-81, 444 S.E.2d 22, 24-25 (1994). In order to
establish entitlement to benefits under Code § 65.2-503, a
claimant bears the burden of proving (1) that he or she has
suffered one of the losses enumerated in the statute and (2) that
the "incapacity is permanent and that the injury has reached
maximum medical improvement." County of Spotsylvania v. Hart,
218 Va. 565, 568, 238 S.E.2d 813, 815 (1977). The losses covered
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by Code § 65.2-503 include "[s]everely marked disfigurement of
the body resulting from an injury not otherwise compensated by
this section." Code § 65.2-503(B)(16). The commission has
previously held that scarring that results from a compensable
injury may qualify as a "severely marked disfigurement" under
Code § 65.2-503(B)(16). See Price v. Davis H. Elliot Co., Inc.,
VWC File No. 137-65-65 (April 9, 1997), aff'd, Record No.
1009-97-3 (Va. Ct. App. Sept. 2, 1997); Cogswell v. Interstate
Van Lines, Inc., VWC File No. 167-67-98 (Nov. 27, 1995); Brown v.
City of Roanoke Fire Dept., VWC File No. 158-08-04 (March 7,
1995); Estu v. Restaurant Equipment, Inc., VWC File No. 153-64-53
(Aug. 10, 1993); Martin v. Federal Reserve Bank of Richmond, 67
VWC 149 (1988).
The decisions of the commission as to questions of fact are
conclusive and binding upon this Court if supported by credible
evidence. Code § 65.2-706; see Manassas Ice & Fuel Co. v.
Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). On
appeal, we must view the evidence in the light most favorable to
the prevailing party below, and "[t]he fact that contrary
evidence may be found in the record is of no consequence if
credible evidence supports the commission's finding." Farrar, 13
Va. App. at 229, 409 S.E.2d at 826 (citations omitted).
We hold that the evidence was insufficient to support the
commission's finding that "[claimant's] scar should have reached
its maximum improvement" six months after his bypass surgery.
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Claimant offered no medical evidence establishing that his scar
had reached maximum medical improvement. Even when viewing the
evidence in the light most favorable to claimant, neither the
photograph of claimant's scar nor the operative report prepared
by his surgeon indicate whether the current thickness, color, and
length of claimant's scar are unlikely to change or whether the
scar's appearance is likely to improve through continued healing
in the future. Because the evidence offered by claimant failed
to prove that his scar had reached maximum medical improvement,
the commission erred when it awarded him permanent partial
disability benefits under Code § 65.2-503(B)(16). Cf. Hart, 218
Va. at 569-70, 238 S.E.2d at 816 (reversing award of permanent
partial disability benefits because credible evidence failed to
support finding that claimant's arm injury had reached maximum
medical improvement). Because we reverse on this issue, we do
not address whether the scar is a "severely marked
disfigurement."
For the foregoing reasons, we reverse the commission's
award.
Reversed.
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