Walter Everett Childress v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
WALTER EVERETT CHILDRESS
MEMORANDUM OPINION* BY
v. Record No. 1240-00-3 JUDGE ROBERT P. FRANK
JANUARY 16, 2001
APPALACHIAN POWER COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Walter E. Childress, pro se.
Richard D. Lucas (Carter, Brown & Osborne,
P.C., on brief), for appellee.
Walter Everett Childress (claimant) appeals the decision of
the Workers' Compensation Commission to dismiss his request for
review. On appeal, he contends the commission: 1) denied him
due process of law by not permitting a hearing on his
application for hearing filed on February 8, 2000; 2) denied him
due process of law by not permitting him to conduct discovery
after he filed his application for hearing on February 8, 2000;
3) abused its discretion in ruling that he is not entitled to a
twenty percent penalty from employer despite employer's error in
mailing his compensation benefits to the wrong address and that
the commission erred as a matter of law in reaching that
determination; and 4) abused its discretion in ruling he is not
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
entitled to a twenty percent penalty from employer despite the
employer's error in waiting more than fourteen days after the
entry of an order by this Court before mailing his compensation
benefits and that the commission erred as a matter of law in
reaching that determination. We disagree and affirm the ruling
of the commission.
I. BACKGROUND
Claimant was employed by employer on January 27, 1985, when
he suffered a compensable injury to his back. On January 4,
1995, employer filed an application for hearing. The
application was heard by a deputy commissioner on April 9, 1997.
The full commission upheld the deputy commissioner's ruling in
part and reversed in part. Claimant appealed the commission's
decision to this Court and employer assigned cross-error. On
December 22, 1998, this Court issued an opinion affirming the
commission's opinion in part and reversing the commission's
opinion in part. Claimant petitioned for a rehearing before the
three-judge panel and for a rehearing en banc.
Employer maintained it mailed claimant a benefit check on
January 5, 1999, after reviewing the opinion released by this
Court on December 22, 1998. Claimant alleged employer did not
mail the check until January 7, 1999, which violated the
fourteen-day period permitted for payment pursuant to Code
§ 65.2-524.
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Claimant's petitions for rehearing by the three-judge panel
and rehearing en banc were denied by this Court on January 29,
1999. Claimant filed a petition of appeal to the Supreme Court
on February 26, 1999. The Supreme Court dismissed the petition
of appeal on June 22, 1999. This Court returned its mandate to
the commission on June 23, 1999. The commission entered this
Court's mandate on June 29, 1999.
On February 9, 1999, claimant, by counsel, requested that
the commission assess a twenty percent penalty on employer for
failure to pay claimant in a timely manner following the opinion
issued by this Court on December 22, 1998. On February 8, 2000,
claimant filed an application for hearing with the commission
for a hearing on the twenty percent penalty. On March 1, 2000,
a claims examiner for the commission declined to entertain
claimant's request for the twenty percent penalty. Claimant
filed a request for review, which was denied by the commission,
by opinion, on April 25, 2000. Claimant then filed the current
appeal with this Court.
II. ANALYSIS
We first address claimant's contention that the commission
erred in ruling he is not entitled to a twenty percent penalty
from employer despite employer's error in waiting more than
fourteen days after entry of the December 22, 1998 order by this
Court before mailing claimant's compensation benefits. We
disagree.
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Code § 65.2-524 states:
If any payment is not paid within two
weeks after it becomes due, there shall be
added to such unpaid compensation an amount
equal to twenty percent thereof, unless the
Commission finds that any required payment
has been made as promptly as practicable and
(i) there is good cause outside the control
of the employer for the delay or (ii) in the
case of a self-insured employer, the
employer has issued the required payment to
the employee as a part of the next regular
payroll after the payment becomes due. No
such penalty shall be added, however, to any
payment made within two weeks after the
expiration of (i) the period in which
Commission review may be requested pursuant
to § 65.2-705 or (ii) the period in which a
notice of appeal may be filed pursuant to
§ 65.2-706. No penalty shall be assessed
against the Commonwealth when the
Commonwealth has issued a regular payroll
check to the employee in lieu of
compensation covering the period of
disability.
Code § 65.2-706(C) states:
Cases so appealed shall be placed upon
the privileged docket of the Court of
Appeals and be heard at the next ensuing
term thereof. In case of an appeal from the
decision of the Commission to the Court of
Appeals, or from the decision of the Court
of Appeals to the Supreme Court, the appeal
shall operate as a suspension of the award
and no employer shall be required to make
payment of the award involved in the appeal
until the questions at issue therein shall
have been fully determined in accordance
with the provisions of this title.
Therefore, Code § 65.2-706(C) operates to suspend the
fourteen-day period set forth in Code § 65.2-524 until the
issues in the appeal have been "fully determined."
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While employer argues it mailed the benefit check on
January 5, 1999, and claimant argues the check was not mailed
until January 7, 1999, this factual determination is not
relevant to the legal question of whether the issues on appeal
have been "fully determined" pursuant to Code § 65.2-706(C).
Employer argues the issues in an appeal have not been
"fully determined" until the mandate of this Court is entered by
the Clerk of the Commission in the commission's order book.
However, we need not address employer's contention because, for
the purposes of this opinion, the earliest date that this Court
could have issued a mandate, which would have fully determined
the issues on appeal, was January 29, 1999, when this Court
denied claimant's petitions for rehearing. Therefore, the
earliest date on which employer would have been required to make
payment to claimant was fourteen days after January 29, 1999.
Clearly, by mailing the benefit check either on January 5, 1999
or January 7, 1999, employer was early in its payment to
claimant and no penalty applied.
Claimant next contends he was denied due process because
the commission did not hold a hearing on his request for the
twenty percent penalty against employer. We disagree.
"Where a question of law is all that needs to be resolved
it has often been held that the requirements of procedural due
process are met where the party seeking review has the
opportunity to state his views in writing." James v. Arlington
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County Bd. of Supervisors, 226 Va. 284, 290, 307 S.E.2d 900, 903
(1983). In James, the Supreme Court adopted the reasoning of a
federal case, Pan American Petroleum Corporation v. Federal
Power Commission, 322 F.2d 999 (D.C.Cir. 1963), where the
petitioner claimed it was denied due process because the Federal
Power Commission resolved a question of law without holding a
hearing. 226 Va. at 290, 307 S.E.2d at 903. The Supreme Court
relied on the federal court's reasoning that "'[t]he
requirements of procedural due process were satisfied by the
opportunity to submit written evidence and written argument.'"
Id. (quoting Pan American Petroleum Corp., 322 F.2d at 1005).
The Supreme Court also cited another federal case, Mississippi
River Fuel Corp. v. Federal Power Commission, 281 F.2d 919(D.C.Cir. 1960), where the petitioner "claimed that it was
denied due process because it did not receive an opportunity to
make oral argument." James, 226 Va. at 290, 307 S.E.2d at 903.
The Supreme Court noted that the federal court did not find the
petitioner's argument persuasive and reasoned that because the
issue before the court was a question of law, oral argument was
not necessary. Id. In explaining the holding in Mississippi
River Fuel Corp., the Supreme Court wrote that "the petitioner's
'interpretation was plainly stated in its letter to the
Commission, and later in briefs submitted on its petition for
rehearing.'" Id.- 6 -
In this case, the issue before the commission was whether
the questions at issue in the case were "fully determined"
pursuant to Code § 65.2-706 so as to make payment due. This
question was one of law independent of any factual finding.
Claimant filed a request for review after receiving the letter
from the claims examiner and filed a sixteen-page brief and
eleven exhibits arguing his position that the twenty percent
penalty should be assessed against employer. The commission
addressed each of claimant's arguments in an opinion and
dismissed claimant's petition for review.
We find that because the issue before the commission was a
matter of law, the commission did not deny claimant due process
by not affording him the opportunity for oral argument.
Claimant next argues he was denied due process of law
because the commission did not permit him to conduct discovery
after filing his application for hearing on February 8, 2000.
We disagree.
"[D]iscovery enables 'one party to search the conscience of
his antagonist, and to compel him to make disclosures upon oath
of facts necessary to the preservation of the rights of the
former, which he otherwise might not be able to prove.'"
Johnson v. Mundy, 123 Va. 730, 744, 97 S.E. 564, 568 (1918)
(citation omitted).
In this case, the issue before the commission was a
question of law, not one of fact. Therefore, there was no
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reason for the commission to grant discovery to claimant as
discovery is for the collection of facts. We, therefore, find
the commission did not deny claimant due process of law in not
permitting him to conduct discovery.
Claimant next contends the commission erred in ruling he is
not entitled to a twenty percent penalty from employer despite
employer's error in mailing his compensation benefits to the
incorrect address. We again disagree. Because claimant
acknowledged he received the first payment from employer on
January 11, 1999, we find this issue without merit.
For these reasons, we affirm the award of the commission.
Affirmed.
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