Gloria Ann Blankenship v. Total Home Care ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
GLORIA ANN BLANKENSHIP
MEMORANDUM OPINION*
v. Record No. 2906-01-3 PER CURIAM
APRIL 2, 2002
TOTAL HOME CARE AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gerald F. Sharp; Gerald F. Sharp, P.C., on
brief), for appellant.
(Michael F. Blair; Lisa Frisina Clement; Penn
Stuart, on brief), for appellees.
Gloria Ann Blankenship (claimant) contends the Workers'
Compensation Commission erred in finding that the deputy
commissioner's February 8, 2001 opinion, from which claimant did
not seek timely review, became final and, therefore, the
commission did not have jurisdiction to review that decision.
Upon reviewing the record and the parties' briefs, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
The material facts are not in dispute. On October 27,
2000, claimant filed a letter application seeking compensation
benefits for a March 15, 2000 injury by accident. Claimant
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
alleged that her average weekly wage was $969.95. On January
31, 2001, the parties filed a stipulated agreement with the
commission reflecting that claimant's average weekly wage was
$887.65.
In a February 8, 2001 opinion, the deputy commissioner
relied upon the signed stipulations and awarded claimant
temporary total disability benefits from March 16, 2000 through
November 19, 2000, at the maximum compensation rate of $567,
based on the stipulated pre-injury average weekly wage of
$887.65. The deputy commissioner also found that claimant
returned to light-duty work on November 20, 2000, earning an
average weekly wage of $680, and awarded her temporary partial
disability benefits at the weekly rate of $138.44, from November
20, 2000, and continuing. The record shows that claimant
received notice of the February 8, 2001 opinion on February 12,
2001, and employer received notice of that opinion on February
9, 2001.
On February 20, 2001, claimant filed a motion to withdraw
the stipulations and to reconsider her average weekly wage. In
the motion, claimant's counsel stated: "Mr. Blair and I are
trying to come to an agreement, but I was worried about the
twenty day appeal period." However, claimant did not request
review of the February 8, 2001 opinion in her February 20, 2001
letter or at any other time.
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In a February 20, 2001 letter to the parties, the deputy
commissioner responded as follows:
Mr. Sharp has withdrawn claimant's
agreement to the wage as stated in the
February 8, 2001 agreement.
The general rule is that stipulations
are binding even if they are incorrect;
however, the Commission has taken the
position that questions regarding wages can
be revisited so long as such is done in a
timely manner. This is because the employer
is in the best position to advise the
Commission of the correct wage. Moreover,
claimants are entitled to a correct
calculation of the wage.
We still have the file. Since Mr.
Sharp's request is within 20 days, we have
authority to amend the wage. If you want us
to do that, please advise.
In a February 22, 2001 letter, employer advised the
commission that it was making payments pursuant to the February
8, 2001 order. In a March 6, 2001 letter, employer's counsel
advised the commission that "[s]ince the claimant has withdrawn
her agreement to the stipulation in this case, we are going to
suspend any further payment, since we are not under an order at
this point."
In a March 16, 2001 letter to the parties' counsel, the
deputy commissioner informed them the February 8, 2001 opinion
had not been vacated. In addition, he advised them that the
opinion had not been amended, because they had not advised him
of a new agreement regarding claimant's average weekly wage.
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He further stated that since neither party had appealed the
February 8, 2001 opinion, it "is now final and binding."
On March 23, 2001, claimant filed a request for review of
the deputy commissioner's March 16, 2001 "letter Opinion,"
taking exception to the finding that the February 8, 2001
opinion had not been vacated or appealed and was, therefore,
final and binding.
The commission ruled that the deputy commissioner did not
err in failing to permit claimant to withdraw stipulations after
the February 8, 2001 opinion was issued; in finding that the
February 8, 2001 opinion was final and binding; and in ruling
that it did not have jurisdiction to review the case. In so
holding, the commission found as follows:
The claimant withdrew her stipulation
as to her pre-injury average weekly wage
after the Deputy Commissioner issued an
Opinion in this matter. While we agree with
the claimant's contention that the Deputy
Commissioner had the authority to reconsider
this issue, we also find that he had the
authority to decline to change the wage
absent agreement by both parties. However,
the Deputy Commissioner has no jurisdiction
over the case after the appeal period has
expired. Furthermore, the Commission has no
jurisdiction to review a case absent a
timely filed request for Review.
In this case, the claimant never filed
a request for Review of the Deputy
Commissioner's February 8, 2001, Opinion.
The February 8, 2001, Opinion became final
20 days after the parties received notice of
the Opinion.
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The claimant's March 23, 2001, request
for Review of the "letter Opinion issued by
Deputy Commissioner Philip E. Burchett on
March 16, 2001" is insufficient to convey
jurisdiction to the Commission to Review any
issue decided in the February 8, 2001,
Opinion. In fact, the March 16, 2001,
letter was not an Opinion. It merely
conveyed information to the parties
regarding the status of the case.
(Footnote omitted.)
Code § 65.2-705(A) requires that an application for review
of a deputy commissioner's decision be filed with the commission
within twenty days from receipt of notice of an award sent
pursuant to Code § 65.2-704(A). "'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.'" Sovran Fin. Corp. v. Nanney, 12
Va. App. 1156, 1160, 408 S.E.2d 266, 269 (1991) (quoting K & L
Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299,
302 (1985)). Thus, absent a timely review request or an
allegation of fraud or mistake in the procurement of an award,
the commission loses jurisdiction over an award after twenty
days from the date of that award. See McCarthy Elec. Co. v.
Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993).
"[I]t [was] within the commission's discretion to
. . . examine the [letters] of the deputy commissioner . . . to
ascertain the result[s] intended," and we will not disturb the
commission's determination unless "arbitrary or capricious."
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Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 130,
510 S.E.2d 255, 260-61 (1999) (en banc). In this case, the
commission examined the deputy commissioner's February 20, 2001
letter to the parties' counsel, and concluded he correctly
asserted that he had authority to amend the average weekly wage
or decline to do so, absent an agreement of the parties. No
language in the February 20, 2001 letter indicated that the
deputy commissioner had vacated or withdrawn the February 8,
2001 opinion. In addition, the commission examined the deputy
commissioner's March 16, 2001 letter and concluded that it did
not constitute an opinion, but merely conveyed information to
the parties regarding the status of the case. The commission
recognized that the deputy "had no jurisdiction over the case
after the [twenty-day] appeal period . . . expired."
Our review of the record discloses ample support for the
commission's interpretations of the deputy commissioner's
February 20, 2001 and March 16, 2001 letters, therefore, we
decline to disturb those findings on appeal. Based upon those
findings, the commission did not abuse its discretion in
concluding that the deputy commissioner's February 20, 2001
letter did not vacate the February 8, 2001 opinion. Thus, the
commission did not err in finding that claimant did not seek
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timely review of that opinion, rendering it final and binding,
and that the commission had no jurisdiction over this matter.
For these reasons, we affirm the commission's decision.
Affirmed.
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