COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
MARY PEGGY BROWN
OPINION BY
v. Record No. 0485-00-4 JUDGE JAMES W. BENTON, JR.
JANUARY 30, 2001
UNITED AIRLINES, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Eric S. Wiener (Eric M. May; Law Offices of
Eric M. May, P.C., on brief), for appellant.
Michael N. Salveson (Hunton & Williams, on
brief), for appellee.
Mary Peggy Brown appeals from the Workers' Compensation
Commission's denial of an award for permanent partial disability
benefits. The commission ruled that her claim was untimely
filed. For the following reasons, we reverse the commission's
decision.
I.
The record establishes that on May 28, 1993, the commission
entered an award in Brown's favor for compensation for permanent
partial disability. On January 9, 1997, Brown filed a claim for
additional permanent partial disability benefits and to
establish her permanent partial disability rating. See Code
§ 65.2-503. Brown's claim noted that she "does not have a
permanency rating as yet . . . [and] anticipated that her
treating doctor will issue a permanency rating in the near
future." Although her claim was timely filed within three years
after the date compensation was last paid pursuant to Code
§ 65.2-708(A), the commission's staff informed Brown that the
commission "will give no further consideration to this claim
until . . . [the] treating physician has indicated that [Brown]
has reached maximum medical improvement and affixes a disability
rating." The staff further informed Brown that "[u]pon receipt
of this information, your claim . . . will be considered." On
April 22, 1997, Brown filed documentation and requested the
staff to "docket this matter for a hearing."
After the evidentiary hearing, the deputy commissioner
issued a decision on September 30, 1997, "find[ing] that maximum
medical improvement has not been reached" and concluded,
"[t]herefore, the instant claim is premature." The opinion
further states that "the Claim for Benefits is denied" and
"[t]he case is ordered removed from the docket." Although the
deputy commissioner's opinion advises that Brown "may appeal
this decision by filing a request for review . . . within twenty
days from the date of this opinion," the deputy commissioner's
ruling did not dismiss Brown's claim.
By letter dated March 11, 1998, which was filed on March
16, 1998, Brown requested that the matter be rescheduled for a
hearing. The commission's staff put the matter "on hold pending
receipt of a [medical] report . . . [that Brown] has reached
- 2 -
maximum medical improvement." On May 14, 1998, Brown informed
the commission that she had "a recent medical report to document
[her] maximum medical improvement status." The employer
responded that the claim was not timely and that it was barred
by the doctrine of res judicata. After the matter was docketed
for a hearing, the deputy commissioner found that the documents
established Brown now had reached maximum medical improvement
and that Brown's claim was not barred by the doctrine of res
judicata. The deputy commissioner ruled, however, that Brown's
claim was not timely because benefits were last paid to Brown
through January 12, 1994, and "[t]he instant claim was not filed
until March 16, 1998, more than 4 years later." Unlike the
September 30, 1997 decision, the deputy commissioner's February
12, 1999 decision states that Brown's "Claim for Benefits is
dismissed." (Emphasis added).
The commission affirmed the deputy commissioner's ruling.
The crux of the commission's ruling is the following:
After careful review of the record, the
Commission finds that the claim is barred by
the statute of limitations. The [employee]
was last paid compensation on January 12,
1994. Pursuant to . . . Code § 65.2-708(A),
the [employee] was required to file any
claim for permanency benefits within three
years from the date for which compensation
was last paid pursuant to an award. In this
case, she was required to file by January
12, 1997. While the [employee] indeed made
a filing on January 9, 1997, this case
proceeded to a Hearing, and the claim was
denied and the case removed from the docket.
[Employee's] counsel did not request that
- 3 -
the case be continued on the docket, nor did
he note a request for Review of this
decision. In fact, nothing further was
heard until new counsel filed a claim on
behalf of the [employee] on or about March
11, 1998. This March 11, 1998, claim made
no mention of the previous claim. Based on
this, we cannot find that the January 1997
claim remained outstanding and that the
March 1998 claim was a continuation of this
claim.
Brown appeals from this ruling.
II.
As an administrative agency, the commission has been
delegated authority to "make rules and regulations for carrying
out the provisions of [the Workers' Compensation Act]." Code
§ 65.2-201. That authority, however, does not permit the
commission to adopt rules that are inconsistent with the Act.
See Sargent Elec. Co. v. Woodall, 228 Va. 419, 424, 323 S.E.2d
102, 105 (1984). The Act was designed to protect employees, see
Ellis v. Commonwealth, 182 Va. 293, 303, 28 S.E.2d 730, 734
(1944); it "is highly remedial and should be liberally construed
in favor of the [employee]." Barker v. Appalachian Power Co.,
209 Va. 162, 166, 163 S.E.2d 311, 314 (1968). The commission's
ruling in this case violates these mandates.
Significantly, the commission acknowledges that Brown's
January 9, 1997 filing was timely. The commission's dismissal
of Brown's claim is grounded in substantial part in its finding
that, after the deputy commissioner's September 30, 1997
decision, Brown "did not request that the case be continued on
- 4 -
the docket [or] . . . note a request for Review of this
decision." The deputy commissioner's September 30, 1997 ruling,
however, was not a final order barring Brown's right to
establish that she attained maximum medical improvement at a
future date. See Rusty's Welding Service, Inc. v. Gibson, 29
Va. App. 119, 131, 510 S.E.2d 255, 261 (1999) (en banc), rev'g
27 Va. App. 733, 501 S.E.2d 444 (1998). It left for later
determination the point in the future at which Brown would
actually attain maximum medical improvement. See Holly Farms
Foods, Inc. v. Carter, 15 Va. App. 29, 34-35, 422 S.E.2d 165,
167 (1992).
Where, as here, an employee suffers the loss
of use of a scheduled body member, the
compensation provided by [Code § 65.2-503]
is not awardable "until the injury has
reached a state of permanency, i.e. maximum
improvement, when the degree of loss may be
medically ascertained." In other words,
before [Code § 65.2-503] benefits are
awardable, it must appear both that the
partial 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) (citations omitted).
When the deputy commissioner found on September 30, 1997
that Brown's "claim [was] premature" because she had not then
reached maximum medical improvement, that ruling was supported
by credible evidence and was interlocutory regarding her future
condition. Under the commission's case law, the deputy
- 5 -
commissioner's ruling did not bar Brown from proving at a later
time that she attained maximum medical improvement after
September 30, 1997. See Dancy v. Georgia Pacific Corp., 76 VWC
446, 448 (1997) (holding that the commission will "usually" not
review interlocutory orders because they are premature). Thus,
the deputy commissioner's ruling that "the Claim for Benefits is
denied" was retrospective, and it was interlocutory as to
Brown's future condition.
The deputy commissioner's further ruling that "[t]he case
is ordered removed from the docket" only had the effect of
removing the matter from the hearing docket. It did not dismiss
the claim. See Keenan v. Westinghouse Elevator Co., 10 Va. App.
232, 235, 391 S.E.2d 342, 344 (1990) (holding that an order
removing a case from the hearing docket is not ipso facto a
dismissal of the claim). Indeed, the commission's own case
decisions recognize the distinction between dismissal of a claim
and removal of a claim from its hearing docket. See Bryant v.
Fieldcrest Cannon, Inc., 75 VWC 184, 185 (1996) (noting that an
order in that case "states that the claim is dismissed, not
merely that the matter is removed from the hearing docket").
See also Hare v. Jani King of Hampton Roads, 78 VWC 180, 181
(1999) (holding that dismissal of a claim, rather than
continuance on the hearing docket, was inappropriate). The
commission also has indicated, for example, that a dismissal
without prejudice, allowing an employee to refile an
- 6 -
application, is distinct from removing a case from the hearing
docket. See id. Clearly, however, under the commission's
decisions, the mere removal of a case from the hearing docket is
not tantamount to dismissal of the claim. See Bryant, 75 VWC at
185.
Nothing in the commission's rules warns an employee that
the deputy commissioner's removal of a case from the hearing
docket has the effect of converting this ruling to a final order
barring future proceedings. The procedural ruling that "[t]he
case is ordered removed from the docket" does not have that
effect. The fact that the commission might have exercised its
discretion to review the removal of the case from the hearing
docket also does not convert the deputy commissioner's decision
to a final order barring future determination of maximum medical
improvement. See City of Richmond Fire & Emergency v. Brandon,
32 Va. App. 787, 789, 531 S.E.2d 22, 22-23 (2000) (refusing to
assume jurisdiction over an appeal of a discovery order because
it was interlocutory); Hanlovitch v. Chesapeake Gen. Hosp., 75
VWC 293, 295 (1996). Indeed, the commission's practice in this
regard is demonstrated by its ruling in Dancy, where "[t]he
Commission [found] that the request for review [was] premature"
and noted that it "usually declines interlocutory reviews on
evidentiary or procedural matters except for good cause." 76
VWC at 448.
- 7 -
The deputy commissioner's removal of the matter from the
hearing docket was no more than a procedural ruling which
invoked only the possibility of interlocutory review. See id.
The commission's rules do not specify that the mere act of
removing a case from the hearing docket constitutes a dismissal
of the claim or an act that converts an otherwise interlocutory
procedural decision into a final decision. See Metro Machine
Corp. v. Sowers, 33 Va. App. 197, 205-06, 532 S.E.2d 341, 346
(2000) (noting that there appears to be a difference in some
circumstances between filing a claim and merely requesting a
hearing). Indeed, the commission's rules contain no clear
statement concerning the effect of removing a case from the
hearing docket.
Significantly, when Brown notified the commission on March
16, 1998, that she had documents establishing maximum medical
improvement, the commission's staff reviewed those documents and
responded to Brown's attorney as follows:
A review of the Commission file indicates
an Opinion was rendered on September 30,
1997 by Deputy Commissioner Cummins
indicating permanent partial disability
benefits cannot be awarded at this time
inasmuch as your client has not yet reached
maximum medical improvement.
Medical reports attached to your March 11
letter, [which was filed March 16, indicate]
Dr. Lew C. Schon renders your client "still
not quite yet at her best."
The Commission will place your claim on
hold pending receipt of a report from Dr.
- 8 -
Schon stating your client has reached
maximum medical improvement and the proper
disability rating affixed.
Although this determination by the commission's staff is not
binding on the commission, it provides another indication that
the claim was not dismissed but, rather, was "place[d] . . . on
hold pending receipt of a report . . . [that Brown] has reached
maximum medical improvement."
Undisputedly, the deputy commissioner's ruling on September
30, 1997 did not "dismiss" Brown's claim. Indeed, the
comparison between that ruling and the deputy commissioner's
ruling on February 12, 1999, which states that "the Claim for
Benefits is dismissed" and "[t]he case is ordered removed from
the hearing docket," further indicates the lack of intention to
dismiss the claim on September 30, 1997.
In Gibson, as in Brown's case, a deputy commissioner
"DENIED" the claim, finding that "on the evidence before us we
cannot conclude that maximum medical improvement has been
reached and accordingly deny permanent partial disability
benefits at this time." 27 Va. App. at 736, 501 S.E.2d at 445.
The employee did not seek review of that ruling. Instead, the
employee later filed another application for hearing and proved
he had then reached maximum medical improvement. The commission
upheld the deputy commissioner's award to the employee for
permanent partial benefits and ruled that the deputy's earlier
ruling denying benefits "'at this time' . . . left the issue of
- 9 -
permanent partial disability unresolved for future
determination." 29 Va. App. at 127, 510 S.E.2d at 259. We
affirmed that ruling.
This case falls squarely within our ruling in Gibson that
the commission has the power "to reach beyond the confines of
the ultimate paragraph of the deputy commissioner's opinion and
to examine the opinion of the deputy commissioner as a whole in
order to ascertain the result intended." Id. at 130, 510 S.E.2d
at 259. In Brown's case, as in Gibson, the deputy commissioner
"denied" the claim. As in Gibson, that fact is not dispositive
of Brown's right to prove a future attainment of maximum medical
improvement.
The fact that we addressed the issues in Gibson within the
context of a res judicata claim instead of a limitation on the
filing of a claim does not mean that Gibson is inapposite to
this decision. Moreover, the fact that the deputy commissioner
in Gibson continued all issues other than the award of permanent
partial disability benefits does not render Gibson immaterial to
our decision in this case. In both cases, the issue is what
constitutes a final order in the award of permanent partial
disability benefits. To turn a distinction upon the deputy
commissioner's use of the term, "at this time," in Gibson, and
the use of the term, "claim is premature," in this case, is to
draw a distinction without a real difference and is
unreasonable.
- 10 -
Although the deputy commissioner removed the case from the
hearing docket on September 30, 1997, she did not dismiss
Brown's claim. In Gibson, we found that administrative agencies
have the discretion to interpret their own orders as long as
they do so in a manner that is reasonable and not arbitrary or
capricious. 29 Va. App. at 129-30, 510 S.E.2d at 260-61.
Although the commission's review opinion may be interpreting the
deputy commissioner's order, the commission does not define the
removal of the case from the hearing docket as anything other
than the procedural matter discussed above. To give this
procedural ruling substantive effect, in the absence of a clear
dismissal of the claim, is arbitrary and capricious and denies
Brown access to relief when the law is to be construed in her
favor. See Hilliards v. Jackson, 28 Va. App. 475, 481-82, 506
S.E.2d 547, 551 (1998) (holding that an agency's classification
of money as rental income was arbitrary and capricious where its
rules did not define rental income).
Because the deputy commissioner's September 30, 1997 denial
of Brown's claim was an interlocutory decision concerning
maximum medical improvement and did not "dismiss" her claim, we
hold that the commission retained jurisdiction over the claim.
The claim was "premature" and, thus, "the issue [was] left open
for future determination." Mercy Tidewater Ambulance Serv. v.
Carpenter, 29 Va. App. 218, 228, 511 S.E.2d 418, 423 (1999).
This holding is consistent with the procedure that the
- 11 -
commission has used which predates our Gibson decision. For
example, in Sadler v. Walter Reed Convalescent Ctr., 98 WC UNP
1669508 (1998), the commission affirmed the deputy
commissioner's finding that the employee had "failed to prove
she has reached maximum medical improvement." Reacting to the
deputy commissioner's dismissal of the claim, the commission
ruled as follows:
However, the Deputy Commissioner should
not have denied and dismissed the claim,
which would forever foreclose indemnity
benefits for the employee. We find that the
totality of [the doctor's] report shows
permanent impairment resulting from the work
accident. Such a claim may be filed and
preserved before it completely matures, if
permanent injury is established within the
limitations period of Va. Code Ann.
§ 65.2-708. Fluellen v. Fairfax County
School Board, 95 WC UNP 1526422, VWC File
No. 152-64-22 (May 17, 1995). Accordingly,
the Commission will retain "jurisdiction of
this matter for the purpose of requiring a
determination at a later date as to the
extent of the employee's permanent partial
disability." Griffin v. Breeden Company, 63
O.I.C. 151 (1984), cited in Hungerford
Mechanical Corp. v. Hobson, 11 Va. App. 675,
401 S.E.2d 213 (1991). We therefore MODIFY
the November 25, 1997 Opinion of the Deputy
Commissioner insofar as it denied and
dismissed the claim, and we will defer
adjudication of this matter until such time
as Sadler has reached maximum medical
improvement for her permanent injury.
This case is REMOVED from the Review
Docket.
See also Robinson v. Super Fresh, 98 WC UNP 1732412 (1998).
- 12 -
Both of Brown's applications to put the matter on the
hearing docket were filed under the same file number the
commission assigned to the original case. That the March 1998
application "made no mention" of the earlier application does
not change the fact, the significance of which the commission
overlooked, that the original, timely application had not been
"dismissed." As the commission ruled in Sadler, merely removing
the matter from the hearing docket does not effect a dismissal
of the claim. Thus, the fact that Brown reached maximum medical
improvement on May 8, 1998 is not a bar to recovery because her
original application was filed within the three-year limitation.
For these reasons, we reverse the commission's decision and
remand for reconsideration consistent with these holdings.
Reversed and remanded.
- 13 -
Annunziata, J., dissenting.
I respectfully dissent from the majority opinion for the
following reasons. The majority holds that jurisdiction was
retained in this case because the September 30, 1997 decision by
the deputy commissioner was an interlocutory and not a final
order, a position wholly inconsistent with case precedent and
commission practice.
In this case, Brown filed a timely claim for permanent
partial disability benefits on January 9, 1997. On April 22,
1997, Brown submitted an application for an evidentiary hearing
on her claim, which was held on September 11, 1997. The deputy
commissioner heard the case on the merits and in her September
30, 1997 opinion, concluded that maximum medical improvement had
not been reached. She accordingly denied the claim. 1 Case law
supports this conclusion, defining a final order as "a
decision . . . granting or denying . . . some benefit . . . ."
Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329
S.E.2d 48, 50 (1985); Holly Farms Foods, Inc. v. Carter, 15 Va.
App. 29, 34, 422 S.E.2d 165, 167 (1992).
1
The deputy commissioner further ordered the case removed
from the docket and noted in her order that the parties had
twenty days to appeal the decision, making clear that the order
was not interlocutory in nature. See Dancy v. Georgia Pacific
Corp., 76 VWC 446, 448 (1997) ("[A] review of right exists only
as to a final decision or award regarding a benefit allowable
under the Act.").
- 14 -
Brown never appealed the decision denying her claim.
Instead, she waited nearly two years and then filed another
claim for permanent disability benefits on March 11, 1998. The
commission has repeatedly held that where the claimant does not
appeal a decision denying benefits, that order becomes final.
See, e.g. Gibson v. Rusty's Welding Service, Inc., 76 VWC 373,
374 (1997) ("[T]he Deputy Commissioner denied the claim for
permanent partial disability . . . on the ground that . . .
claimant had not reached maximum medical improvement. Neither
party requested Review of the Opinion of March 4, 1997, which is
now final." (emphasis added)); Price v. Davis H. Elliot Co., No.
137-65-65 (Va. Workers' Comp. Comm'n Sept. 11, 1995) (holding
that where claimant did not timely appeal denial of application
for benefits the denial became final). This Court has affirmed
that position. See McCarthy Elec. Co. v. Foster, 17 Va. App.
344, 345, 437 S.E.2d 246, 247 (1993) ("If the application for
review is not made within the twenty-day limitation period, the
commission has no jurisdiction to review the matter . . . .").
The commission's finding is also wholly consistent with its
prior holdings in which an affirmative and express decision to
retain jurisdiction over a case must be reflected in its final
order to permit a claimant whose claim for permanent partial
disability benefits has been denied as "premature" and not
thereafter appealed, to refile her claim and present evidence of
maximum medical improvement to the commission after the passage
- 15 -
of the statutorily mandated time frame. See e.g. Sadler v.
Walter Reed Convalescent Ctr., No. 166-95-08 (Va. Workers' Comp.
Comm'n July 15, 1998); Robinson v. Super Fresh, No. 173-24-12
(Va. Workers' Comp. Comm'n June 17, 1998); Combs v. Mackie J
Coal Co., No. 159-42-03 (Va. Workers' Comp. Comm'n Nov. 18,
1994); Griffin v. Breeden Co., No. 583-167 (Va. Workers' Comp.
Comm'n Apr. 27, 1984). In short, whether to retain jurisdiction
over a claim for permanent disability benefits in order to allow
a claimant to submit proof that she has reached maximum medical
improvement, is a matter lying within the discretion of the
commission, which must affirmatively be exercised to be
effective. Where jurisdiction has not been expressly retained,
the commission has made clear that subsequent claims must be
filed within the limitations period. See, e.g. Williams v.
Chippenham Manor, No. 180-97-73 (Va. Workers' Comp. Comm'n Aug.
11, 1998) (ruling that claimant must file new claim within
limitations period once maximum medical improvement is reached);
Harris v. James River Cleaners, Inc., No. 169-12-53 (Va.
Workers' Comp. Comm'n June 13, 1995) (ruling that claimant was
not precluded from filing a "subsequent timely claim" once she
had more evidence); Quesenberry v. Federal Mogul Blacksburg, No.
159-12-58 (Va. Workers' Comp. Comm'n Sept. 16, 1994) (ruling
that claimant could file new claim once maximum medical
improvement reached if filed within limitations period). I have
discerned no authority which supports the view that jurisdiction
- 16 -
is automatically retained over a claim which has been denied for
failing to prove maximum medical improvement and which has not
been appealed.
The majority's reliance on Rusty's Welding Service, Inc. v.
Gibson, 29 Va. App. 119, 510 S.E.2d 255 (1999) (en banc), rev'g
27 Va. App. 733, 501 S.E.2d 444 (1998), is misplaced. Gibson is
cited for the proposition that the deputy commissioner's ruling
in this case was not a final order and that the retention of
jurisdiction upon a finding that a claim resting on proof of
maximum medical improvement was premature is automatic.
However, the question in Gibson was whether the issue raised by
claimant was res judicata, not whether the claim was timely
filed. Indeed, the procedural history in Gibson is instructive
because the claimant in Gibson, like the claimant here, filed
two claims for permanent partial disability benefits, the first
of which was denied on the ground maximum medical improvement
had not been reached, a finding that was not appealed, and
accordingly was determined by the commission to be final. See
id. at 126, 510 S.E.2d at 258-59; Gibson, 76 VWC at 374.
However, Gibson filed his second application for permanent
partial disability benefits, together with a doctor's report
establishing that he had reached maximum medical improvement,
one month after the first denial of benefits, and before the
statute of limitations had run. See id. at 127, 510 S.E.2d at
259. The second claim was thus timely. The employer argued,
- 17 -
instead, that the issue was res judicata and that the second
claim should be dismissed on that ground. The commission,
construing the deputy commissioner's order as one that
anticipated a later submission of evidence, found that the claim
had not been fully adjudicated and thus was not res judicata.
In this case, the unappealed final order denying benefits
did not retain jurisdiction, either by express language to that
effect, see e.g. Griffin (deputy commissioner denied claim as
premature and claimant appealed; on appeal commission agreed
claim was premature, but expressly retained jurisdiction over
claim), or by deferring adjudication of the matter, see, e.g.,
Sadler. The commission therefore properly decided, consistent
with its historical practice and with the relevant case law,
that the unappealed order denying benefits was final and that
the refiled claim was time-barred. 2 In the absence of explicit
language or other clear indicia of its intent to retain
jurisdiction, I would affirm the commission's decision that
Brown's claim is barred under Code § 65.2-708. See Gibson, 29
2
In the procedural history section of the amended opinion,
the deputy commissioner referred to the January, 1997
application and the fact that the claim had been denied on
September 30, 1997. In the section entitled "Present
Proceeding," the deputy commissioner stated that "[t]his matter
comes before the Commission on the Claim . . . filed on March
16, 1998 . . . ." In the section in which she concluded that
Brown's claim was time-barred, the deputy commissioner stated,
"[b]enefits were last paid to the claimant through January 12,
1994. The instant claim was not filed until March 16, 1998,
more than 4 years later."
- 18 -
Va. App. at 130, 510 S.E.2d at 260 ("[T]he commission is
entitled to interpret its own orders in determining the import
of its decisions.").
Accordingly, I dissent from the majority's opinion.
- 19 -