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Richardson-Wayland v. Wright

Court of Appeals of Virginia
Jun 7, 1994
Record No. 2053-93-1 (Va. Ct. App. Jun. 7, 1994)

Opinion

Record No. 2053-93-1

Decided: June 7, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Cecil H. Creasey, Jr.; Sands, Anderson, Marks Miller, on brief), for appellants.

(Karen M. Rye, on brief), for appellee.

Present: Judges Benton, Coleman and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Richardson-Wayland Electrical Corporation and its insurer contend that the Workers' Compensation Commission erred in imposing a twenty percent penalty against employer pursuant to Code Sec. 65.2-524. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. See Rule 5A:27.

The employee, Christopher Wright, sustained a compensable injury by accident on February 14, 1989. Employer accepted the claim and voluntarily paid benefits to Wright. On May 27, 1993, employer's counsel submitted a petition, order, and affidavit to the commission for approval of a compromise settlement of the employee's claim. On June 4, 1993, the commission approved the settlement and entered the settlement order. The order provided that payment was to be made to Wright "within a reasonable period of time after entry of this Order."

On June 7, 1993, Wright's counsel sent employer's counsel the order which had been entered by the commission and requested payment according to the terms of the settlement. The employer did not respond. Wright's counsel stated in an affidavit filed with the commission that she contacted employer's counsel on July 2, 1993, by telephone to inquire as to the status of the payment. Employer still did not make payment to Wright. On July 22, 1993, Wright filed a request that the commission assess a twenty percent penalty pursuant to Code Sec. 65.2-524 against employer for failing to fund the compromise settlement. On July 28, 1993, after having received a copy of Wright's penalty request letter, employer issued checks to Wright and his counsel in accordance with the settlement. The checks were received by Wright's counsel on August 3, 1993. In response to Wright's penalty request letter, employer filed a letter with the commission, dated July 27, 1993, stating that it had not funded the settlement because it had not received a copy of the commission's order prior to July 27, 1993.

An assistant claims examiner denied Wright's request for the assessment of a penalty. Wright filed a request for review and an affidavit executed by Wright's counsel describing the sequence of events. The commission sent a notice of receipt of application for review to employer's counsel, stating that the claims examiner's decision would be reviewed on the record. Employer did not file any written response to the notice or to refute Wright's application for review. Two weeks after sending the notice, the commission found that the payment made fifty-five days after entry of the order approving the settlement was not made within a reasonable time and assessed a twenty percent penalty. On appeal, employer contends that it made payment within a reasonable time and that the commission denied employer due process because it did not allow employer to present written evidence and oral argument on review.

Substantial credible evidence supports the commission's factual finding that the payment was not made within a reasonable time period. Wright sent employer's counsel a copy of the order on June 7, 1993, and contacted employer's counsel again by telephone on July 2, 1993. Yet, not until after Wright filed a penalty request on July 22, 1993, did employer finally fund the settlement, fifty-five days after entry of the order. Based upon these facts, the commission's finding that employer failed to make payment of the settlement within a reasonable period of time after entry of the order is conclusive and will be upheld on appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989).

Employer's due process argument is not supported by the evidence. At the time Wright filed his letter requesting that the penalty be imposed, employer made the payment and informed the commission that payment had not been made because employer had not received a copy of the order. Employer neither requested an opportunity to present additional evidence nor stated any other reason for the delay in making payment. Employer was not prevented from filing a written response or objection to Wright's Request for Review or from requesting oral argument. Employer had approximately thirty-four days from the time Wright's Request for Review was filed until the commission issued its review decision within which to file an objection or written response or to request oral argument. It simply failed to do so.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Richardson-Wayland v. Wright

Court of Appeals of Virginia
Jun 7, 1994
Record No. 2053-93-1 (Va. Ct. App. Jun. 7, 1994)
Case details for

Richardson-Wayland v. Wright

Case Details

Full title:RICHARDSON-WAYLAND ELECTRICAL CORPORATION and PENNSYLVANIA MANUFACTURERS…

Court:Court of Appeals of Virginia

Date published: Jun 7, 1994

Citations

Record No. 2053-93-1 (Va. Ct. App. Jun. 7, 1994)