City of Roanoke v. Johnny G. Guilliams ( 1997 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Elder and Senior Judge Cole
    Argued at Salem, Virginia
    CITY OF ROANOKE
    MEMORANDUM OPINION * BY
    v.         Record No. 1218-97-3             JUDGE LARRY G. ELDER
    DECEMBER 23, 1997
    JOHNNY G. GUILLIAMS
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    Steven J. Talevi, Assistant City Attorney
    (Wilburn C. Dibling, Jr., City Attorney, on
    briefs), for appellant.
    Mary L. Poletti (Brumberg, Mackey & Wall, on
    brief), for appellee.
    The City of Roanoke (appellant) appeals a decision of the
    Workers' Compensation Commission (commission) awarding permanent
    partial disability benefits under Code § 65.2-503(B)(16) to
    Johnny G. Guilliams (claimant).   Appellant contends that the
    commission violated its right to due process when it awarded
    benefits to claimant without holding an evidentiary hearing.
    Appellant also contends that the commission erred when it (1)
    found that a surgical scar on claimant's chest had reached
    maximum medical improvement and (2) concluded that this scar was
    a "severely marked disfigurement" under Code § 65.2-503(B)(16).
    For the reasons that follow, we reverse.
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    I.
    EVIDENTIARY HEARING
    We hold that the commission did not violate appellant's due
    process rights when it awarded claimant permanent partial
    disability benefits without holding an evidentiary hearing.
    "'[D]ue process is flexible and calls for such procedural
    protections as the particular situation demands.'   [T]he
    fundamental requisite of due process of law is the opportunity to
    be heard.'"   Duncan v. ABF Freight System, Inc., 
    20 Va. App. 418
    ,
    422-23, 
    457 S.E.2d 424
    , 426 (1995) (citations omitted).
    The commission's rules provide for procedures to dispose of
    cases "on the record" and without holding an evidentiary hearing.
    Rule 2 states that contested issues not resolved through
    prehearing dispute resolution procedures "will be referred for
    decision on the record or evidentiary hearing."    Under Rule 2.1,
    contested issues will be decided "on the record" and without
    additional presentation of evidence if "it appears that there is
    no material fact in dispute as to any contested issue."     When the
    commission determines that a decision on the record is
    appropriate in a particular case, "the parties are given twenty
    days to submit written statements and evidence."    Rules of the
    Workers' Compensation Commission 2.1(A).   If a party is
    dissatisfied with a decision on the record, "[r]equest for review
    . . . shall proceed under [Code § 65.2-705] and Rule 3."    Rules
    of the Workers' Compensation Commission 2.1(B).
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    The commission's rules contain mechanisms by which a party
    may seek to introduce additional evidence following a decision on
    the record.   Generally, "[n]o new evidence may be introduced by a
    party at the time of review . . . ."    Rules of the Workers'
    Compensation Commission 3.3.   However, a party that wishes to
    introduce new evidence following a request for review of an
    initial decision has two options it may pursue.    It may (1) seek
    the opposing party's agreement to the introduction of new
    evidence or (2) petition the commission to reopen the record to
    receive after-discovered evidence.     See Rules of the Workers'
    Compensation Commission 3.3.
    The commission's decision to award benefits to claimant "on
    the record" was not a violation of appellant's due process
    rights.   Pursuant to the commission's rules, appellant had
    opportunities to attempt to introduce evidence regarding
    claimant's scar prior to the full commission's award.    The record
    established that appellant failed to act on these opportunities.
    Prior to the decision by the claims examiner, appellant did
    not request either discovery or an evidentiary hearing, file a
    written statement of the evidence supporting its defense, or
    otherwise attempt to introduce evidence.    After claimant
    requested the full commission to review the claims examiner's
    decision, the record does not indicate that appellant sought to
    introduce additional evidence through either negotiating with
    claimant or filing a petition to reopen the record to receive
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    after-discovered evidence.   Appellant did not file a written
    statement supporting its position and never argued below that any
    material fact was in dispute.   In light of appellant's failure to
    utilize the commission's procedural rules to introduce evidence,
    we cannot say that the commission's disposition of this case
    without an evidentiary hearing denied appellant due process of
    law.
    II.
    PERMANENT PARTIAL DISABILITY BENEFITS
    Appellant next contends that the evidence was insufficient
    to support the commission's conclusion that claimant was entitled
    to permanent partial disability benefits under Code
    § 65.2-503(B)(16).   Because the record is devoid of medical
    evidence regarding the likelihood that the appearance of
    appellant's scar will remain unchanged, we agree.
    Code § 65.2-503 provides benefits to indemnify injured
    employees for permanent loss and disfigurement that is either
    partial or total.    See Tumlin v. Goodyear Tire & Rubber Co., 
    18 Va. App. 375
    , 380-81, 
    444 S.E.2d 22
    , 24-25 (1994).      In order to
    establish entitlement to benefits under Code § 65.2-503, a
    claimant bears the burden of proving (1) that he or she has
    suffered one of the losses enumerated in the statute and (2) that
    the "incapacity is permanent and that the injury has reached
    maximum medical improvement."    County of Spotsylvania v. Hart,
    
    218 Va. 565
    , 568, 
    238 S.E.2d 813
    , 815 (1977).   The losses covered
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    by Code § 65.2-503 include "[s]everely marked disfigurement of
    the body resulting from an injury not otherwise compensated by
    this section."    Code § 65.2-503(B)(16).   The commission has
    previously held that scarring that results from a compensable
    injury may qualify as a "severely marked disfigurement" under
    Code § 65.2-503(B)(16).    See Price v. Davis H. Elliot Co., Inc.,
    VWC File No. 137-65-65 (April 9, 1997), aff'd, Record No.
    1009-97-3 (Va. Ct. App. Sept. 2, 1997); Cogswell v. Interstate
    Van Lines, Inc., VWC File No. 167-67-98 (Nov. 27, 1995); Brown v.
    City of Roanoke Fire Dept., VWC File No. 158-08-04 (March 7,
    1995); Estu v. Restaurant Equipment, Inc., VWC File No. 153-64-53
    (Aug. 10, 1993); Martin v. Federal Reserve Bank of Richmond, 67
    VWC 149 (1988).
    The decisions of the commission as to questions of fact are
    conclusive and binding upon this Court if supported by credible
    evidence.   Code § 65.2-706; see Manassas Ice & Fuel Co. v.
    Farrar, 
    13 Va. App. 227
    , 229, 
    409 S.E.2d 824
    , 826 (1991).        On
    appeal, we must view the evidence in the light most favorable to
    the prevailing party below, and "[t]he fact that contrary
    evidence may be found in the record is of no consequence if
    credible evidence supports the commission's finding."     Farrar, 13
    Va. App. at 229, 
    409 S.E.2d at 826
     (citations omitted).
    We hold that the evidence was insufficient to support the
    commission's finding that "[claimant's] scar should have reached
    its maximum improvement" six months after his bypass surgery.
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    Claimant offered no medical evidence establishing that his scar
    had reached maximum medical improvement.   Even when viewing the
    evidence in the light most favorable to claimant, neither the
    photograph of claimant's scar nor the operative report prepared
    by his surgeon indicate whether the current thickness, color, and
    length of claimant's scar are unlikely to change or whether the
    scar's appearance is likely to improve through continued healing
    in the future.    Because the evidence offered by claimant failed
    to prove that his scar had reached maximum medical improvement,
    the commission erred when it awarded him permanent partial
    disability benefits under Code § 65.2-503(B)(16).    Cf. Hart, 218
    Va. at 569-70, 
    238 S.E.2d at 816
     (reversing award of permanent
    partial disability benefits because credible evidence failed to
    support finding that claimant's arm injury had reached maximum
    medical improvement).   Because we reverse on this issue, we do
    not address whether the scar is a "severely marked
    disfigurement."
    For the foregoing reasons, we reverse the commission's
    award.
    Reversed.
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