Opinion
Record No. 2075-92-4
July 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Sharon B. Soloway; Martin, Arif, Dewilde Soloway, on brief), for appellant.
(Williams E. Baggs, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Carmel Politano contends that the Workers' Compensation Commission erred in (1) ruling that his request for a review before the full commission was not timely, and (2) invoking res judicata to bar consideration of this claim for benefits. Politano also asserts that he received ineffective assistance of counsel based upon counsel's failure to request review by the full commission. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the commission. Rule 5A:27.
Code § 65.2-705 requires that an application for review to the full commission must be made within twenty days from the date of the award. Absent fraud or mistake, the decisions of the commission or its deputy commissioners from which no party seeks timely review are binding upon the commission. K L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). "No appeal [to this court] shall be taken from the decision of one Commissioner until a review of the case has been had before the full Commission, as provided in § 65.2-705, and an award entered by it." Code § 65.2-706.
Politano's counsel represented that she received the deputy commissioner's July 27, 1992 opinion on August 10, 1992. At that time, Politano had six days remaining on the twenty-day period within which to request a timely review. Politano could have filed the request for review with the commission by hand delivery, certified or registered mail, or facsimile transmission within this six day period. See Code § 65.2-101. Politano failed to request the review until August 26, 1992, some thirty days after the date of the opinion. Politano does not allege fraud or mistake. Accordingly, the commission did not err in ruling that it did not have jurisdiction to hear Politano's request for review. The request for review was not timely filed.
Because Politano failed to perfect a timely review of the deputy commissioner's July 27, 1992 opinion, we cannot consider his appeal. Thus, we do not address the remaining issues presented in Politano's opening brief, and we affirm the commission's decision.
Affirmed.