USAir, Inc. v. James B. Hyman ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
USAIR, INC.
MEMORANDUM OPINION *
v. Record No. 2518-95-4 PER CURIAM
APRIL 30, 1996
JAMES B. HYMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael N. Salveson; Hunton & Williams, on brief),
for appellant.
(Michael W. Heaviside; Ashcraft & Gerel, on brief),
for appellee.
USAir, Inc. ("employer") and its insurer contend that the
Workers' Compensation Commission erred in finding that the
commission's failure to send a copy of its opinion to employer,
its counsel, or insurer did not toll the running of the twenty-
day period for filing a request for review to the full
commission. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
Code § 65.2-705(A) provides: "If an application for review
is made to the Commission within twenty days from the date of the
award, the full Commission . . . shall review the
evidence . . . ." In addition, Rule 3.1 of the Rules of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Workers' Compensation Commission provides: "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." If the application for
review is not made within the twenty-day limitation period, the
commission has no jurisdiction to review the matter unless the
petitioning party alleges fraud or mistake in the procurement of
the award. Harris v. Diamond Constr. Co., 184 Va. 711, 717, 36
S.E.2d 573, 576 (1946); K & L Trucking Co., Inc. v. Thurber, 1
Va. App. 213, 218, 337 S.E.2d 299, 302 (1985).
It was undisputed that employer did not file its request for
review within twenty days of the commission's June 23, 1995
opinion. Employer contended that it, its counsel, and its
insurer never received a copy of the June 23, 1995 opinion from
the commission. The first notice to employer of the issuance of
the opinion occurred when claimant's attorney faxed a copy of the
opinion to employer's claims adjuster on July 21, 1995.
Employer's counsel, the claims adjuster, and the insurer filed
affidavits asserting that they never received a copy of the
opinion from the commission. The commission accepted the
affidavits as true.
The commission found that our decision in McCarthy Elec.
Co., Inc. v. Foster, 17 Va. App. 344, 437 S.E.2d 246 (1993),
controlled its decision in this case. We agree. In McCarthy, we
recognized that despite the customary practice of the commission,
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"neither the Virginia Code nor the Rules . . . require that the
commission provide the parties with copies of its orders,
judgments, or awards. In the absence of such a provision, the
party against whom a judgment is entered is not ordinarily
entitled to notice of its entry." Id. at 345-46, 437 S.E.2d at
247. In McCarthy, we held that "the commission's failure to
notify employer of the entry of the penalty award is not the type
of 'mistake in the procurement of the award' contemplated by
Virginia's case law and, therefore, does not toll the running of
the period for filing an appeal or otherwise exempt the employer
from its terms." Id. at 347, 437 S.E.2d at 248.
Employer incorrectly contends that McCarthy is
distinguishable from this case. Our holding in McCarthy applies
equally to penalty orders or any other judgment, award, or order
of the commission. Moreover, we clearly stated in McCarthy that
a party is not legally entitled to notice of the commission's
award, and therefore, the commission's failure to provide such
notice is not the type of mistake in procurement of the award
that would warrant a tolling of the twenty-day limitation period.
Thus, unlike Harris, there was no evidence in this case that the
award was procured by fraud or mistake.
We presume that the legislature is cognizant of McCarthy and
of the interpretation that we and the commission have given to
Code § 65.2-705(A). We conclude that our construction is
consistent with the legislative intent, particularly in the
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absence of any changes to the statute. See Creative Dimensions
Group, Inc. v. Hill, 16 Va. App. 439, 444, 430 S.E.2d 718, 721
(1993); City of Norfolk v. Lillard, 15 Va. App. 424, 430-31,
424 S.E.2d 243, 247 (1992).
For these reasons, we affirm the commission's decision
dismissing employer's request for review because it was not
timely filed.
Affirmed.
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