Opinion
Record No. 1711-92-4
August 24, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Craig A. Brown (Ashcraft Gerel, on brief), for appellant.
S. Vernon Priddy, III (Mary Ann Link; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
John E. Hughery (claimant) appeals a decision of the Virginia Workers' Compensation Commission terminating his benefits based upon an "on-the-record" finding that he was able to return to work. On appeal, claimant argues that the commission's decision to adjudicate Hilldrup Moving Storage and VanLiner Insurance Company's (hereinafter collectively referred to as employer) change of condition application solely "on-the-record" without an ore tenus hearing violated the commission's own rules and violated his statutory and constitutional due process rights. We conclude, under the facts of this case, that the commission erred in not conducting a hearing as required by Rule 13 of the Virginia Workers' Compensation Commission. Accordingly, we reverse the decision and remand the application for further proceedings consistent with this opinion.
BACKGROUND
Claimant injured his back while lifting furniture on August 16, 1991. Employer accepted the claim as compensable and an award was ordered pursuant to an agreement between the parties. On November 7, 1991, claimant's original treating physician, Dr. John W. Johnson, noted that claimant's "MRI shows no particular abnormalities, outside of a disc bulge at L3,4. . . . I think that there is no doubt that [claimant] is overexaggerating his symptoms."
Claimant was also evaluated and treated by Dr. Andre Eglevsky, who noted that the MRI was "essentially unremarkable [and] the bulging at 3-4 was certainly quite mild and symmetrical." On December 10, 1991, Dr. Eglevsky concluded that the claimant could return to work without restrictions. On February 10 and 18, 1992, claimant was examined again by Dr. Eglevsky, who discharged claimant from any work restrictions.
Employer sought to terminate claimant's disability benefits on the basis that he was able to return to his regular employment. The deputy commissioner notified the parties that the case would be decided on-the-record without an ore tenus hearing and directed each side to submit written statements in support of their positions within fifteen days. Claimant objected to this procedure as violative of his rights to an ore tenus hearing. The deputy commissioner overruled claimant's objection and, after the parties submitted their statements and evidence, on March 6, 1992, entered an award terminating claimant's benefits.
On review to the full commission, the award was affirmed on the basis that claimant was not entitled to an ore tenus hearing. The full commission held:
The issue presented is whether the claimant has recovered from his industrial injury and can return to his regular employment. That issue is essentially a medical question. The deputy commissioner decided the issue on the basis of the medical reports. Claimant's counsel does not allege that there was any other evidence which he wished to present.
We find that Code § 65.2-702 provides for a hearing only in those cases which are contested and in which an evidentiary hearing is necessary to obtain a just result. We find no violation of that Code section, given the facts of this case. Neither do we find a violation of due process. A medical issue was presented, and the case was decided on the basis of the medical reports.
Claimant's evidence in response to the deputy commissioner's request included: (1) a note from Dr. Johnson dated December 9, 1991, indicating that claimant "may resume light work — no lifting over 10 lbs"; (2) a note from Dr. Johnson dated December 24, 1991, indicating that claimant "may resume limited work on December 30 — no lifting over 10 lbs"; and (3) a note from Potomac Hospital's emergency department, dated January 13, 1992, indicating that claimant was under their care from 5:30 p.m. to 7:45 p.m., and the "remarks" section stating "Off work for 5 days."
STATUTORY RIGHT TO AN ORE TENUS HEARING
Claimant contends that, upon the filing of employer's application to terminate benefits, the commission was required to set a date for an adversarial hearing pursuant to Code § 65.2-702. We disagree. Claimant's reliance on Code § 65.2-702 is misplaced. In Manchester Board Paper Co. v. Parker, 201 Va. 328, 111 S.E.2d 453 (1959), the Supreme Court held that Code § 65.2-702 (formerly § 65.1-91) applies to disputes arising before an award is made, whereas Code § 65.2-708 (formerly § 65.1-99) applies to disputes arising after an award is made. Id. at 330-31, 111 S.E.2d at 455-56.
Code § 65.2-702 provides:
A. If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this title, or if they have reached such an agreement which has been signed and filed with the Commission and compensation has been paid or is due in accordance therewith and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make application to the Commission for a hearing in regard to the matters at issue and for a ruling thereon.
B. Immediately after such application has been received the Commission shall set the date for a hearing, which shall be held as soon as practicable, and shall notify the parties at issue of the time and place of such hearing. The hearing shall be held in the city or county where the injury occurred, or in a contiguous city or county, unless otherwise agreed to by the parties and authorized by the Commission.
In this case, employer and claimant filed a memorandum of agreement pursuant to Code § 65.2-701. The agreement was approved by the commission and an award was entered on November 4, 1991. "[A]fter the Commission has made its award and it has become final the procedure for the review of disputes which may arise in connection with the award must be under [Code § 65.2-708]." Id. at 330, 111 S.E.2d at 455. Code § 65.2-708 provides, in pertinent part:
A. Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award. No application filed by a party alleging a change in condition shall be docketed for hearing by the Commission unless any medical reports upon which the party is relying are submitted to the Commission. No such review shall affect such award as regards any moneys paid except pursuant to §§ 65.2-712, 65.2-1105, and 65.2-1205.
We hold that this statute does not mandate that the commission hold an adversarial ore tenus hearing in every case where an employer seeks to terminate benefits.
PROCEDURAL DUE PROCESS REQUIREMENTS
Claimant also argues that the commission violated his due process rights by adjudicating employer's change in condition application without conducting an evidentiary hearing. We find claimant's argument without merit and controlled by the Supreme Court's decision in James v. Arlington County Bd. of Supervisors, 226 Va. 284, 289-90, 307 S.E.2d 900, 903 (1983). In oral argument before us, claimant asserted that an ore tenus hearing would have produced additional evidence regarding the duties associated with his pre-injury employment and evidence of the doctors' basis in releasing claimant back to work.
As in the James case, claimant preserved the issue of whether the application could be adjudicated without a hearing. However, claimant "cannot have that issue resolved against the backdrop of a hypothetical set of facts that was never presented to the Commission." Id. at 288-89, 307 S.E.2d at 902. Claimant never argued to the deputy commissioner or to the full commission that he desired to present additional evidence, nor did he ever allege that he was unable to return to his pre-injury employment. See Rule 5A:18.
"Procedural due process has been said to require that before an individual is deprived of any significant property interest he be granted an opportunity, at a meaningful time in a meaningful manner, for a hearing appropriate to the nature of his case."James, 226 Va. at 289-90, 307 S.E.2d at 903. "'[D]ue process', unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. [D]ue process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (citations omitted). Under the facts of this case, we hold that claimant "received, at a meaningful time and in a meaningful manner, a hearing appropriate to the nature of his case." James, 226 Va. at 290, 307 S.E.2d at 903. Accordingly, we find no due process violation.
APPLICATION OF COMMISSION'S PUBLISHED RULES
Code § 65.2-201 authorizes the commission to promulgate rules and regulations for carrying out the provisions of the Workers' Compensation Act. "The adoption of such rules is a legislative act, and the enactment is binding in law upon the parties and the Commission as well." Sargent Elec. Co. v. Woodall, 228 Va. 419, 424, 323 S.E.2d 102, 105 (1984). Pursuant to their rule-making authority, the commission adopted Rule 13, which provides in pertinent part:
[T]he Commission shall determine if the preliminary evidence filed by both parties justifies suspension of compensation pending a hearing on the merits of the claim. If so, the Commission will place the claim on the hearing docket and authorize the suspension of compensation as of the date for which compensation was last paid.
This Rule provides that where, as here, the commission finds probable cause to suspend benefits, a hearing on the merits will follow. The commission did not address this argument.
The commission's standard form entitled "Employer's Notice of Application for Hearing" provides the following notice to the claimant:
If the Commission determines from the preliminary evidence that payments should be suspended, you will receive notice of the date, time, and place of hearing. Following a hearing the Commission will then determine whether or not payments should be terminated.
Rule 1 of the Rules of the Virginia Workers' Compensation Commission, in setting forth the general guidelines for a hearing before the commission, provides in part:
A. Hearing An evidentiary hearing by the Commission shall be conducted as a judicial proceeding in that all witnesses shall testify under oath, and a record of the proceedings shall be made. . . . The party having the burden of proof shall have the right to open and close, and each party shall be allowed twenty (20) minutes in which to present evidence unless other prior arrangement is made through the Commission.
This rule indicates that a "hearing" before the commission is anore tenus proceeding.
We conclude that while Code § 65.2-203 authorizes the commission to "decide the issues in a summary manner, and make an award carrying out the decision," the published rules of the commission go further and provide a claimant, following a temporary suspension of benefits, a hearing on the merits. Accordingly, because the procedure followed in this case denied claimant a hearing to which he was entitled under Rule 13, we reverse the decision and remand the matter to the commission for an ore tenus hearing. We agree, however, that sufficient evidence has been presented to justify the continued temporary suspension of claimant's benefits until the final adjudication of this matter.
Reversed and remanded.