Opinion
Record No. 1941-93-3
Decided: May 10, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Dismissed.
(Charles F. Midkiff; Steven H. Theisen; Midkiff Hiner, P.C., on brief) for appellants. Appellants submitting on brief.
(Gregory R. Herrell; Arrington, Schelin Herrell, P.C., on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The employer appeals the commission's order following a remand from this Court. We hold that, because the order appealed from is not a final award, we may not review it, and the appeal must be dismissed. See Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 34-35, 422 S.E.2d 165, 167 (1992).
In the previous appeal of this case, we concluded that the effective date of the amendment to former Code Sec. 65.1-87.1 (now Code Sec. 65.2-602) was not dispositive. Bristol Newspapers, Inc. v. Shaffer, ___ Va. App. ___ ___, 432 S.E.2d 23, 26 (1993); see Code Sec. 65.2-602 (formerly Code Sec. 65.1-87.1). We further determined that the only unresolved issue regarding the tolling of the statute of limitations was whether the late filing of the first report of accident prejudiced the employer's rights. Id.
However, the deputy commissioner to whom this matter was referred by the commission has still not considered it. The deputy commissioner must determine whether the employer's late filing of the first report of accident prejudiced the employee. This determination may resolve this matter without the need to address the issue presented to us in this appeal. Therefore, this appeal is not from a final award of the commission and is premature.
Accordingly, we dismiss the appeal without prejudice to the appellants' right to appeal an appropriate decision or order.
Dismissed.