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REVIEWS
The commission has the discretion to hear the petition for review without a specification of each determination of fact or law, and to determine all issues involved in the case." Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988).
Code Sec. 65.2-705(A) requires that an application for review to the full commission must be made within twenty days from the date of the award. In addition, Rule 3.1 of the Rules of the Virginia Workers' Compensation Commission requires that "[a] request for review of a decision or award of the Commission shall be filed by a party in writing with the Clerk of the Commission within 20 days of the date of such decision or award." Code Sec. 65.2-101 specifies that filing by first-class mail "shall be deemed completed only when the application actually reaches a Commission office." 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. See K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). If an application for review of a final order of the commission is not made within twenty days of the date of the order, the commission has no jurisdiction to review the matter unless the petitioning party alleges fraud or mistake in the procurement of the award. McCarthy Electric Company, Inc. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing Code § 65.2705(A)).
Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734, 736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986) (citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736 n.2).
The commission acted properly and did not err when it authorized a deputy commissioner to sit with two commissioners to review a termination of an award opinion. Chapter 2 of the Workers' Compensation Act formulates the commission and defines its powers and duties. It gives the three members of the commission joint or collective responsibility for administering the Act and adjudicating the issues and controversies arising from it. Code Sec. 65.2-201(A). It gives the commission corporate authority to delegate powers and duties to deputies to carry out its responsibilities. Code Sec. 65.2-203(A). The commission acted under this authority when it appointed a deputy to sit with two members of the commission to review the termination of the award in this case. The commission also did not err when it provided no notice of the substitution or opportunity to object. There is no language in the statute requiring notice to the parties or a hearing before the chairman appoints a deputy to act for an absent commissioner. Code Sec. 65.2-704(B). Clinch Valley Med. Ctr. v. Johnnie S Hayes, Record No. 0828-00-3 (December 19, 2000). WP Version.
The commission erred in concluding that claimant's request for review was untimely because it was not filed within twenty days of his attorney's receipt by certified mail of a copy of the deputy commissioner's opinion, as required by Code Sec. 65.2-705(A). Code Sec. 65.2-705(A)'s twenty-day limitation period for filing a request for review begins to run only when, as required by Code Sec. 65.2-704(A), the party, rather than the party's attorney, receives a copy of the deputy commissioner's opinion by registered or certified mail.
On March 2, 1999, following a hearing on claimant's claim on February 4, 1999, at which claimant was represented by counsel, the deputy commissioner issued an opinion denying claimant's claim under both theories of recovery. That same day, the commission mailed copies of the deputy commissioner's opinion by certified mail to counsel of record for the parties and by regular first-class mail to the parties. Claimant's counsel received a copy of the opinion by certified mail on March 4, 1999. Having no prior knowledge of the deputy commissioner's ruling, claimant received a copy of the opinion by regular first-class mail on March 6, 1999.
On March 25, 1999, claimant, proceeding pro se, filed a request for review of the deputy commissioner's opinion by the full commission. By letter dated March 31, 1999, the chief deputy commissioner rejected claimant's request for review, ruling that the commission lacked jurisdiction to hear the requested review because claimant's request for review was not filed within twenty days of his attorney's receipt by certified mail of the deputy commissioner's opinion.
Code Sec. 65.2-704(A) provides, in pertinent part, as follows: The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision. A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail.
Code Sec. 65.2-705(A) provides, in pertinent part, as follows: If an application for review is made to the Commission within twenty days after receipt of notice of such award to be sent as provided in subsection A of Sec. 65.2-704, the full Commission . . . shall review the evidence or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives, and witnesses.
The dispositive question in this case is whether, as the commission concluded, Code Sec. 65.2-705(A)'s twenty-day limitation period began to run on March 4, 1999, when claimant's attorney of record received a copy of the deputy commissioner's March 2, 1999 opinion by certified mail. If so, claimant's request for review filed March 25, 1999 was untimely and the commission had no jurisdiction to review the matter. The parties agree that, because Code Sec. 65.2-705(A) provides that the twenty-day limitation period for filing a request for review begins to run upon receipt of notice of an award or opinion "sent as provided in subsection A of Sec. 65.2-704," and because Code Sec. 65.2-704(A) requires that a copy of the award or opinion be sent "to the parties at issue by registered or certified mail," resolution of the question of when the limitation period began to run in this case turns on the construction of the term "the parties at issue" as used in the directive set forth above.
The language of both Code Sec. 65.2-704(A) and Code Sec. 65.2-705(A) is clear and unambiguous. The first sentence of Code Sec. 65.2-704(A) provides, inter alia, that the commission "shall hear the parties at issue, their representatives, and witnesses." The second sentence of Code Sec. 65.2-704(A) reads, "A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail." Code Sec. 65.2-705(A) provides, inter alia, that, if a request for review is timely filed, the full commission shall "hear the parties at issue, their representatives, and witnesses" and, upon reaching a decision, immediately send a copy of the award "to the parties at issue." This language draws a clear distinction between "the parties at issue" and "their representatives."
Had the legislature intended that the sending of a copy of an opinion or award to the party's attorney of record be considered the equivalent of sending a copy to the party, the legislature could have so indicated, but it did not. Indeed, in specifically providing in Code Sec. 65.2-715 that the commission must provide copies of its opinions to the parties and to their counsel, the legislature has indicated otherwise. Code Sec. 65.2-715 provides: Whenever, in the course of proceedings in connection with awards, the Workers' Compensation Commission issues any written notice, opinion, order or award regarding a specific case, the Commission shall provide copies to the employee, the employer and the compensation carrier, and, if represented, their counsel, at the same time.
This statute reinforces the notion that, for purposes of notice, the legislature intended to treat the parties and their counsel as separate entities. Therefore, Code Sec. 65.2-704(A) means what it plainly says, namely, that a copy of the award or opinion must be sent by registered or certified mail to the parties themselves. Such a literal construction does not yield an absurd result. Conversely, affirming the contrary statutory construction employed by the commission, and sought by employer, would require us to extend the Workers' Compensation Act's provisions beyond their obvious meaning and to hold that the legislature did not mean what it actually expressed. If such a change is to be made, it is for the legislature to undertake, not the courts. Thus, the sending of a copy of an opinion by certified mail solely to a party's attorney of record, as occurred in this case, does not satisfy Code Sec. 65.2-704(A)'s mandate that "[a] copy of the award or opinion . . . be sent . . . to the parties at issue by registered or certified mail."
Code Sec. 65.2-705(A)'s twenty-day limitation period for requesting review of an award or opinion of the commission begins to run when the party, rather than the party's attorney of record, receives a copy of the award or opinion by registered or certified mail. Thus, because claimant never received a copy of the deputy commissioner's March 2, 1999 opinion by registered or certified mail, as required by Code Sec. 65.2-704(A), Code Sec. 65.2-705(A)'s limitation period never began to run with respect to his request for review filed March 25, 1999. Hence, claimant's request for review was timely, and the full commission had jurisdiction to review the deputy commissioner's March 2, 1999 opinion. Michael B. Peacock v. Browning Ferris, Inc., Record No. 1772-01-2 (May 14, 2002). WP Version.Legal Summaries Contents Home Page Contents