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GALLAHAN v. FREE LANCE STAR PUBLISHING COMPANY, et al.




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GALLAHAN

v.

FREE LANCE STAR PUBLISHING COMPANY, et al.


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

Record No. 0822-03-4

ALICE JOYCE GALLAHAN

v.

FREE LANCE STAR PUBLISHING COMPANY

AND HARTFORD FIRE INSURANCE COMPANY

 

OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK

NOVEMBER 25, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Peter M. Sweeny (Peter M. Sweeny, Esquire, P.C., on brief), for

appellant.

Roger L. Williams (John T. Cornett, Jr.; Williams & Lynch,
on

brief), for appellees.

Alice J. Gallahan (claimant) contends the Workers’
Compensation Commission

(commission) erred in finding that: (1) Free Lance Star
Publishing Company (employer)

properly filed an employer’s application for hearing as
required by Code ? 65.2-706 and Rule

1.4(D), and (2) that employer’s documentation accompanying its
application established

probable cause for referral to the hearing docket. For the
reasons that follow, we affirm the

commission’s decision.

I.

We view the evidence in the light most favorable to the
employer, who prevailed below.

See Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d
839, 841 (1999). The

commission’s factual findings are conclusive and binding on
this Court when those findings are

based on credible evidence. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989); Code ? 65.2-706.

The evidence established that on February 28, 1996, claimant
fell and sustained

compensable injuries to her left knee, left wrist and left shin.
Benefits were paid for various

periods by awards with the commission. On September 21, 1999,
claimant filed a change in

condition application seeking temporary total disability
benefits beginning September 16, 1999

and continuing. The deputy commissioner issued an opinion on
March 20, 2000 awarding

temporary total disability benefits beginning September 16, 1999
through November 1, 1999,

and from December 28, 1999 and continuing. On March 22, 2000
employer timely requested

review of that decision, and on March 28, 2000, claimant also
requested timely review of that

decision.

On March 31, 2000, while the decision of the deputy commissioner
was pending review

by the commission, employer filed an application for hearing
with supporting documentation

alleging that claimant had been released to her pre-injury work
on March 13, 2000. Employer

clearly stated on that application, where it requested the
amount and date through which

compensation was paid, that a review was pending.

On November 30, 2000, the commission reversed the deputy
commissioner’s March 20,

2000 award and limited the award of compensation to September
16, 1999 through November 1,

1999. Claimant appealed that decision to this Court and on
November 13, 2001, we reversed the

commission and remanded the case for an award of compensation
consistent with our opinion.

On July 8, 2002, the commission entered an award of temporary
total disability benefits

beginning September 16, 1999 through November 1, 1999, and from
December 28, 1999 and

continuing.

Upon issuance of the July 8, 2002 award by the commission,
employer paid claimant

temporary total disability benefits from September 16, 1999
through November 1, 1999 and

December 28, 1999 through March 31, 2000, the date the employer
filed its application alleging

claimant was able to return to her pre-injury work. On August
12, 2002, a senior claims

examiner reviewed the employer’s application of March 31, 2000
and referred it to the hearing

docket. The matter was heard on the record and on October 10,
2002, the award of July 8, 2002

was terminated effective March 13, 2000 in accord with the
employer’s application and

supporting medical documentation. Claimant requested review of
that decision by the

commission and on March 7, 2002, the decision was affirmed.
Claimant appeals that decision.

II.

Claimant contends that employer failed to comply with the terms
of Rule 1.4(D) and

Code ? 65.2-706 when it filed its application for hearing.
Specifically, claimant argues that Code

? 65.2-706(A) and Rule 1.4(D) do not suspend the payment of the
award of the deputy

commissioner while it is on appeal to the commission and that
none of the exceptions in Rule 1.4

apply. Therefore, employer was required to pay benefits through
the date of the application for

hearing. We affirm the commission’s decision and hold that the
employer’s application was

properly filed and the suspension of payment until a final
determination was made by the

commission was in accordance with Code ? 65.2-706 and Rule 1.4.

"‘"Conclusions of the Commission upon questions of
law, or mixed questions of law and

fact, are not binding on [appeal]."’" Sinclair v.
Shelter Constr. Corp., 23 Va. App. 154, 156-57,

474 S.E.2d 856, 857-58 (1996) (quoting City of Waynesboro v.
Harter, 1 Va. App. 265, 269, 337

S.E.2d 901, 903 (1985) (quoting Brown v. Fox, 189 Va. 509, 517,
54 S.E.2d 109, 113 (1940))).

"The Workers’ Compensation Act is to be liberally
construed for the benefit of employees . . . ."

Harter, 1 Va. App. at 269, 337 S.E.2d at 903. "The
commission’s construction of the Act is

entitled to great weight on appeal." Cross v. Newport News
Shipbuilding and Dry Dock Co., 21

Va. App. 530, 533, 465 S.E.2d 598, 599 (1996) (citing Harter, 1
Va. App. at 269, 337 S.E.2d at

903).

Code ? 65.2-706(A) provides:

The award of the Commission, . . ., if not reviewed in due time,
or

an award of the Commission upon such review, . . ., shall be

conclusive and binding as to all questions of fact. No appeal
shall

be taken from the decision of one Commissioner until a review of

the case has been had before the full Commission, . . ., and an

award entered by it. Appeals shall lie from such award to the

Court of Appeals in the manner provided in the Rules of the

Supreme Court.

Code ? 65.2-706(C) provides:

Cases so appealed shall be placed upon the privileged docket of
the

Court of Appeals and be heard at the next ensuing term thereof.
In

case of an appeal from the decision of the Commission to the
Court

of Appeals, or from the decision of the Court of Appeals to the

Supreme Court, the appeal shall operate as a suspension of the

award and no employer shall be required to make payment of the

award involved in the appeal until the questions at issue
therein

shall have been fully determined in accordance with the
provisions

of this title.

Rule 1.4 provides in pertinent part:

B. Each change in condition application filed by an employer

under ? 65.2-708 of the Code of Virginia shall:

* * * * * * *

4. State the date for which compensation was last paid.

C. Compensation shall be paid through the date the application

was filed, unless:

1. The application alleges the employee returned to work, in

which case payment shall be made to the date of the return.

2. The application alleges a refusal of selective employment or

medical attention or examination, in which case payment shall be

made to the date of the refusal or 14 days before filing
whichever

is later.

3. The application alleges a failure to cooperate with
vocational

rehabilitation, in which case payment must be made through the

date the application is filed.

4. An employer files successive applications, in which case

compensation shall be paid through the date required by the
first

application. If the first application is rejected, payment shall
be

made through the date required by the second application.

5. The same application asserts multiple allegations, in which
case

payment is determined by the allegation that allows the earliest

termination date.

D. An employer may file a change in condition application while

an award is suspended.

In the instant case, the commission stated:

Rule 1.4(D) specifically allows employers to file applications

when awards are suspended. In addition, Code Section 706

provides that an award of the Commission is only conclusive and

binding "if not reviewed in due time." In this case,
the parties filed

timely requests for Review and therefore the Deputy

Commissioner’s March 20, 2000, Opinion was not final. There

was no final award in this case requiring the employer to pay

compensation until the July 8, 2002, Opinion was entered. We do

not find that the Act or the Rules of the Commission require an

employer filing an Application for Hearing to pay compensation

through the date of filing the Application, at the time of
filing
,

when there is no final award in the case.

(Emphasis in the original.)

"When a challenge is made to the commission’s
construction of its rules, the appellate

court’s review is limited to a determination of whether the
commission’s interpretation was

reasonable. The commission’s interpretation will be accorded
great deference and will not be set

aside unless arbitrary or capricious." Estate of Kiser v.
Pulaski Furniture Co., 41 Va. App. 293,

299, 584 S.E.2d 464, 467 (2003) (citing Rusty’s Welding Serv.,
Inc. v. Gibson, 29 Va. App. 119,

129 n.2, 510 S.E.2d 255, 260 n.2 (1999) (citations omitted)).
See also Arellano v. Pam E. K’s

Donuts Shop, 26 Va. App. 478, 486, 495 S.E.2d 519, 521 (1998);
Specialty Auto Body v. Cook,

14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992); Classic
Floors, Inc. v. Guy, 9 Va. App. 90,

93, 383 S.E.2d 761, 763 (1989).

[T]he words "such award," as used in Code ?
[65.2-706],

mean final award, that is, a decision of the [commission] granting

or denying, or changing or refusing to change, some benefit

payable or allowable under the Workers’ Compensation Act and

leaving nothing to be done except to superintend ministerially
the

execution of the award.

Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329
S.E.2d 48, 50 (1985). Clearly, in

accordance with the Supreme Court’s definition of a final
award, a decision of a deputy

commissioner is not final if the parties have filed a timely
request for review with the

commission. By statute, a request for review empowers the
commission to hear the case de

novo, see Code ? 65.2-705; Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 382-83, 363

S.E.2d 433, 438 (1987), and, therefore, it leaves more to be
done than "ministerially" execute the

award. In the instant case, the deputy commissioner’s order
was issued March 20, 2000 and both

claimant and employer requested a review of that award by the
commission. The requests for

review by both parties prevented the deputy commissioner’s
award from becoming a final order.

See id. at 383, 363 S.E.2d at 438 (holding that when "the
commission hears the case de novo it

will not be bound by the findings of the deputy"). It is
well settled in Virginia that a decision is

not final until the period for appeal or review has expired. See
Code ? 65.2-705, Rule 2.1(B),

and Rule 3. As the record in this case demonstrates, both sides
filed their requests for review

within the statutory 20-day period for requesting a review. See
Code ? 65.2-705(A). Therefore,

we hold that while Code ? 65.2-706(C) specifically suspends
payment of an award while an

appeal is pending from the commission to this Court, the
commission’s determination that a

request for review of the deputy commissioner’s award also
suspends payment is not

unreasonable.

When employer filed its application for hearing on March 31,
2000, the parties had

sought review of the deputy commissioner’s award. Thus,
claimant was not then entitled to

temporary total disability benefits and employer was not
required to make any payment of

benefits at that time. After the appeal was complete and a final
decision was entered, employer

complied with Rule 1.4 and made the appropriate payment of
indemnity benefits to claimant.

Claimant’s reliance on Mullins v. T&J Trucking, 73 Va. WC
56 (1994), is misplaced. In

Mullins, the commission stated,

According to Rule 1.4(C) of the Rules of the Workers’

Compensation Commission, "[c]ompensation shall be paid
through

the date the [employer’s] application [for hearing] was
filed." If an

employer does not pay compensation up to the filing date, the

application is void ab initio. Specialty Auto Body v.
Cook, 14 Va.

App. 327, 416 S.E.2d 233 (1993).

The employer contends that Rule 1.4(C), does not prescribe when

compensation must be paid. Instead, the employer asserts that an

employer’s application for hearing is valid if, at any point
in time,

the employer pays compensation through the filing date.

This interpretation of Rule 1.4(C) is incorrect. Under Rule
1.4(C),

for an employer’s application for hearing to be valid,
compensation

must be paid to the employee through the filing date at the time
of

filing.

However, Mullins did not involve an award that was the subject
of a pending request for

review. At the time the application for hearing was filed in
Mullins, the award was final and

claimant was entitled to indemnity benefits. Employer in Mullins
alleged in the application that

it had paid benefits through May 6, 1994 and three days after it
filed the application, actually

mailed the check for benefits through May 6, 1994. That is not
the situation in the instant case.

Additionally, we note that the employer in Specialty Auto Body
suspended benefits due its

employee under a final award two days before it filed its
application for hearing. Therefore, it

too is inapplicable to the facts of the instant case.

In the instant case, the commission’s interpretation of its
rules was not unreasonable,

arbitrary or capricious and we affirm the decision of the
commission.

III.

Employee next argues that employer’s supporting documentation
in its application for

hearing was insufficient to establish the requisite probable
cause for docketing because it did not

include a copy of a job description.

"‘"Decisions of the commission as to questions of
fact, if supported by credible evidence,

are conclusive and binding on this Court."’" Allen
& Rocks Inc. v. Briggs, 28 Va. App. 662,

673, 508 S.E.2d 335, 340 (1998) (quoting WLR Foods v. Cardosa,
26 Va. App. 220, 230, 494

S.E.2d 147, 152 (1997) (quoting Manassas Ice & Fuel Co. v.
Farrar, 13 Va. App. 227, 229, 409

S.E.2d 824, 826 (1991))).

The decisions of the commission since Rules 1.4 and 1.5 became

effective in 1994 indicate it has interpreted its prehearing

procedural rules to include a test that previously was stated

expressly in its former Rule 13. An employer’s application for

hearing will be deemed not "technically acceptable"
and will be

rejected unless the employer’s designated supporting

documentation is sufficient to support a finding of probable
cause

to believe the employer’s grounds for relief are meritorious.
The

commission has defined the standard of "probable
cause" as "[a]

reasonable ground for belief in the existence of facts
warranting

the proceeding complained of."

Circuit City Stores, Inc. v. Scotece, 28 Va. App. 383, 386-87,
504 S.E.2d 881, 883 (1998)

(internal citations omitted).

Dr. Kurt Larson’s report was attached to the employer’s
application. It states: "Has

[appellant] reached maximum medical improvement? YES. Can
[appellant] return full duty to

her previous position as a circulation cashier for [appellee] at
this time? YES." The letter

containing these conclusions indicated appellant’s job
description had been sent to Dr. Larson.

The employer’s failure to attach to the application the job
description which had been reviewed

by Dr. Larson before he authorized her return to pre-injury
employment does not defeat the

commission’s "probable cause" rule. The doctor’s
report itself provides reasonable grounds for a

belief that facts exist warranting the proceeding. The accuracy
of the job description the doctor

saw when he made his determination is an issue for hearing, not
a matter for a claims examiner

to evaluate. We hold that the commission did not err when it
found that the supporting

documentation was sufficient to support a finding of probable
cause to refer the matter to the

hearing docket.

For the foregoing reasons, we affirm the decision of the
commission.

Affirmed.

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