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UNITED PARCEL SERVICE OF AMERICA, et al. v. BRADSHAW




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UNITED PARCEL SERVICE OF AMERICA, et al.

v.

BRADSHAW


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

Record No. 1643-03-2

UNITED PARCEL SERVICE OF AMERICA

AND LIBERTY MUTUAL FIRE

INSURANCE COMPANY

v.

MICHAEL SEAN BRADSHAW

 

MEMORANDUM OPINION[1]
PER CURIAM

OCTOBER 28, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Patricia C. Arrighi; Taylor & Walker, P.C., on brief), for
appellants.

(Wesley G. Marshall, on brief), for appellee.

United Parcel Service and its insurer (hereinafter referred to
as "employer") contend the

Workers’ Compensation Commission erred in finding that the
issues of Michael Sean Bradshaw’s

(claimant) physical ability to work and the cause of his alleged
ongoing disability were not

before the commission when it considered claimant’s August 28,
2001 change-in-condition

application seeking an increase in his temporary partial
disability (TPD) compensation rate.

Upon reviewing the record and the parties’ briefs, we conclude
that this appeal is without merit.

Accordingly, we summarily affirm the commission’s decision. Rule
5A:27.

In refusing to consider the issues of claimant’s physical
ability to work and the causation

of his alleged ongoing disability, the commission found as
follows:

While we find that the claimant’s claim placed the amount

of [TPD] benefits in question, it did not place the extent of
his

underlying disability at issue. Due process requires that the
parties

have notice and an opportunity to be heard on issues that are

decided. An elementary and fundamental requirement of due

process in any proceeding that is to be accorded finality is
notice

reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them
an

opportunity to present their objections. Rule 1.2(A) of the
Rules of

the Virginia Workers’ Compensation Commission provides that:

"A change in condition claim must be in writing and state
the

change in condition relied upon." The Hearing was limited
to the

issue raised in the claimant’s August 28, 2001, letter claim
alleging

a change in condition. The Deputy Commissioner specifically and

correctly stated that the employer’s application to terminate

compensation benefits based on a release to pre-injury
employment

by Dr. Robert G. Squillante, orthopedic surgeon, was not before

him. While the employer stated that it defended the claim on the

grounds that the medical record did not support the period of

disability alleged, the grounds, even if true, did not provide a

defense to the claimant’s claim, which was based on his
earnings.

[Claimant] came to the Hearing with the burden to prove that he

was entitled to an increase in his [TPD] compensation rate. The

claimant’s disability was not at issue, and he had no notice
that it

would be placed in issue at the Hearing. Therefore, any ruling

with regard to his disability constitutes a violation of due
process.

(Citations and footnote omitted.)

At the time claimant filed his August 28, 2001 application, he
was under an open award

of TPD benefits. His August 28, 2001 application seeking an
increase in his TPD compensation

rate did not necessarily raise the issues of his physical
ability to work or the causation of his

ongoing alleged disability. It only requested an increase in the
rate of his compensation based

upon his earnings. Employer’s September 21, 2001
change-in-condition application seeking to

terminate claimant’s benefits based upon a release to pre-injury
employment was not before the

commission at the hearing conducted by the deputy commissioner
upon claimant’s August 28,

2001 application. Thus, claimant had no notice that the issues
of his physical ability to work

and/or the causation of his alleged ongoing disability were to
be considered. Claimant was

entitled to notice and an opportunity to be heard and present
evidence before having his

compensation benefits terminated. See Oak Hill Nursing Home,
Inc. v. Back, 221 Va. 411, 417,

270 S.E.2d 723, 726 (1980); cf. Celanese Fibers Co. v. Johnson,
229 Va. 117, 120, 326 S.E.2d

687, 689-90 (1985) (refusing to consider an issue not stated in
the application).

Taking into account the procedural posture and facts of this
case, the commission did not

err in refusing to consider the issues of claimant’s physical
ability to work and the causation of

his alleged ongoing disability when ruling upon claimant’s
August 28, 2001 change-in-condition

application.[2]

The cases cited by employer in support of its assertion that
claimant’s August 28, 2001

change-in-condition application necessarily placed in issue both
his physical ability to work and

the causation of his alleged ongoing disability are
distinguishable from this case based upon their

facts and procedural posture.

In King’s Market v. Porter, 227 Va. 478, 317 S.E.2d 146 (1984),
and AMP, Inc. v.

Ruebush, 10 Va. App. 270, 391 S.E.2d 879 (1990), the claimants’
change-in-condition

applications sought a reinstatement of compensation
benefits, where as here, claimant was under

an open award of TPD benefits and merely sought an
increase in his rate of compensation. In

addition, unlike this case, Celanese Fibers Co. v. Johnson, 229
Va. 117, 326 S.E.2d 687 (1985),

and Central Virginia Training Ctr. v. Martin, 2 Va. App. 188,
342 S.E.2d 652 (1986), both dealt

with the issue of whether causation was raised by an employer’s
change-in-condition application

to terminate a claimant’s compensation based upon an allegation
that the claimant was able to

return to pre-injury employment.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]We note that
the commission referred employer’s September 21, 2001

change-in-condition application to the Dispute Resolution
Department for appropriate

processing.


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