Truland Sys. Corp v. Richard L. Portorsnok ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
TRULAND SYSTEMS CORPORATION
AND
TWIN CITY FIRE INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0762-97-4 PER CURIAM
JULY 29, 1997
RICHARD L. PORTORSNOK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William R. Korth; Law Offices of Francis H.
Foley, on brief), for appellants.
No brief for appellee.
Truland Systems Corporation and its insurer (hereinafter
jointly referred to as employer) contend that the Workers'
Compensation Commission (commission) erred in dismissing
employer's request for review on the ground that it was not
timely filed. Upon reviewing the record, employer's brief, and
Richard L. Portorsnok's (claimant) motion to dismiss, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
On January 31, 1997, the deputy commissioner rendered an
opinion awarding various benefits to claimant. By letter dated
February 17, 1997 and sent via first-class mail, employer
requested a review by the full commission of the deputy
commissioner's decision. The commission received employer's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
request for review on February 21, 1997, twenty-one days after
the date of the deputy commissioner's award. The commission
dismissed employer's request for review as untimely filed.
Code § 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
§ 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).
It was undisputed that the commission did not receive
employer's request for review until February 21, 1997, more than
twenty days after the deputy commissioner's January 31, 1997
decision. Therefore, the commission did not err in holding that
it lacked jurisdiction to consider employer's request for review.
Employer's reliance on Rule 1:7 of the Rules of the Supreme
Court of Virginia is misplaced. The three-day grace period
provided by Rule 1:7 applies only in a situation where a party is
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required to act under those rules "after service of a paper upon
him." Code § 65.2-705(A) makes clear that the twenty-day period
runs from the date of the award.
For these reasons, we affirm the commission's decision.
Affirmed.
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