J&F Services, Inc. v. Jose v. Villatoro

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
J&F SERVICES, INC. and
HANOVER INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1202-96-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 29, 1996
JOSE V. VILLATORO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William H. Schladt (Ward & Klein, on brief),
for appellants.
Peter M. Sweeny (Wesley G. Marshall; Peter M.
Sweeny & Associates, on brief), for appellee.
Claimant, Jose V. Villatoro, filed a claim for benefits
seeking compensation for an injury by accident arising out of and
in the course of his employment with employer, J&F Services, Inc.
The deputy commissioner applied the statute of limitations to
bar compensation. The full commission reversed and remanded the
case, directing the deputy commissioner to render a decision on
the merits. The deputy commissioner entered an award in
claimant's behalf, which, upon claimant's request for review, the
full commission modified. Employer appeals, contending (1) the
commission erred by not applying the statute of limitations as a
bar to compensation; (2) the commission erred in finding claimant
suffered a temporary total disability subsequent to May 25, 1992;
and (3) the commission erred in awarding temporary total
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disability benefits after June 30, 1992. With the exception of
the third issue raised, we affirm.
I.
Claimant suffered a compensable injury by accident while
working for employer on April 16, 1992. On April 22, 1992,
claimant, through his first attorney, filed a claim for benefits
in the Virginia Workers' Compensation Commission. On May 5,
1992, claimant's counsel requested the matter be set for a
hearing. By letter dated June 19, 1992, the commission stated
that the case would not be placed on the hearing docket until the
medical evidence supporting the claim was sent to the commission.
On July 18, 1992, the Virginia commission wrote claimant's first
lawyer and advised him that the medical evidence supporting
claimant's claim had to be sent immediately to the commission to
avoid dismissal of the claim.
In the interim, on July 6, 1992, employer agreed to
compensate claimant for total disability during the period April
17, 1992 to May 25, 1992. However, claimant refused to execute
an Agreed Statement of Facts, and none was filed with the
commission.
Meanwhile, by June 2, 1992, claimant had filed a claim for
benefits in the Maryland Workers' Compensation Commission after
having hired a new lawyer. The Virginia commission received
notice of this action on July 7, 1992. On July 8, 1992,
employer's carrier wrote claimant's new lawyer and stated it
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would compensate claimant for his Virginia claim through May 25,
1992. On July 15, 1992, claimant's counsel responded, stating
that claimant had "opt[ed] for the State of Maryland Workers'
Compensation benefits."
On August 28, 1992, the Virginia commission wrote claimant,
requesting him to confirm that he was represented by new counsel
and that he would be pursuing a claim in Maryland so the
commission could dispose of the case. On September 10, 1992,
claimant's counsel responded, advising the Virginia commission
that he represented claimant in the Maryland case, which claimant
was then pursuing.
The Virginia commission never entered an order dismissing
claimant's Virginia claim. Following a hearing on April 11,
1994, the Maryland Workers' Compensation Commission denied
claimant's claim for lack of jurisdiction.
Subsequently, claimant, through a third lawyer, filed a
document entitled "Workers' Compensation Claim and Agreement to
Retain Counsel" in the Virginia commission and requested the
commission refer the claim to the hearing docket based on
claimant's initial application for hearing. Following a hearing
on February 24, 1995, the deputy commissioner invoked the statute
of limitations to bar compensation, having found claimant made a
conscious decision to withdraw his Virginia claim. The full
commission reversed. It found claimant never intended to
withdraw his Virginia claim and remanded the matter for a
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determination on the merits.
With respect to his claim for benefits, claimant responded
to employer's interrogatories on the day before the February 24
hearing. In his response, claimant stated that he sought
temporary total disability benefits from April 17, 1992 through
June 30, 1993. At the February 24 hearing, the deputy
commissioner stated that claimant sought temporary total
disability benefits only for the periods April 17, 1992 to June
30, 1992, and November 1, 1993 to July 31, 1994, as "set out in a
letter submitted today by claimant's counsel." The periods
described comport with the periods claimant submitted to the
deputy commissioner in a Statement of Benefits Claimed. The
deputy commissioner's June 13, 1995 opinion also states that
claimant sought benefits only until June 30, 1992. Upon remand
from the commission's ruling that the statute of limitations did
not bar the claim, another hearing was held before the deputy
commissioner. At no point during that hearing was the
termination of the initial time period for which claimant sought
benefits modified from June 30, 1992; the deputy commissioner's
ruling on the merits was likewise limited to that time period.
There is no dispute that claimant suffered a compensable
accident which rendered him totally disabled from April 17, 1992
through May 25, 1992. Claimant's treating physician, Dr. Norman
J. Cowan, approved a light duty job description for claimant
provided by employer; the job was to commence May 26, 1992.
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Claimant testified that he received notice of the light duty
opportunity, but he stated nobody was there when he appeared for
work on the twenty-sixth. Claimant acknowledged that he received
further notice of light duty work within two weeks, but he stated
when he responded, he was told he could not work.
Meanwhile, claimant was treated by Dr. Joseph Y. Lin, on May
29, 1992, at which time Dr. Lin directed claimant not to work for
two weeks. Dr. Lin never released claimant to return to work at
any level. Claimant was also referred to and treated by Dr.
Michael April, who directed claimant not to work from July 20,
1992 to August 20, 1992. Although Dr. April noted as late as
July 20, 1993 that claimant was not ready to return to work, on
April 15, 1993, Dr. Cowan approved another light duty job
description that employer provided for claimant.
The deputy commissioner found claimant's testimony
concerning his reasons for not accepting light duty employment in
May 1992 incredible and that claimant had unjustifiably refused
selective employment. However, based on the medical records of
Drs. Lin and April which demonstrated that claimant was totally
disabled beginning May 29, 1992, the deputy commissioner awarded
claimant temporary total disability benefits for the period April
17 to May 25 and again from May 29 to June 30, 1992. The deputy
commissioner terminated the award on June 30 because claimant had
not sought benefits beyond that date.
Claimant sought review, requesting, inter alia that the
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commission not terminate claimant's recovery as of June 30, 1992.
The commission found that although Dr. Cowan had released
claimant to return to light duty in May 1992, the records of both
Drs. Lin and April established a continuing disability through
the three-day period from May 26 to May 28. The commission
further found that claimant was available for light duty
employment in April 1993, which he unjustifiably refused.
Without addressing the June 30, 1992 limitation imposed by the
deputy commissioner, the full commission awarded claimant
temporary total disability benefits for the period April 17, 1992
to April 13, 1993.
II.
On appeal, employer contends (1) the commission erred by not
applying the statute of limitations as a bar to compensation; (2)
the commission erred in finding claimant suffered a temporary
total disability subsequent to May 25, 1992; and (3) the
commission erred in awarding temporary total disability benefits
after June 30, 1992.
A.
Assuming without deciding that employer's statute of
limitations argument is not procedurally barred, we find that the
argument fails. The right to compensation under the Virginia
Workers' Compensation Act is forever barred "unless a claim be
filed with the commission within two years after the accident."
Code § 65.2-601. There is no dispute that claimant filed a claim
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for benefits in May 1992, well within the prescribed period. The
issue then is whether claimant's actions subsequent to the filing
of his claim amount to a withdrawal of the claim.
Initially, we find no rule or authority which requires a
claimant to act within a certain time after the filing of a claim
to avoid having the claim dismissed. Rule 1.3 of the Rules of
the Workers' Compensation Commission states, "[i]f supporting
evidence is not filed within 90 days after an employee's claim is
filed, it may be dismissed upon motion of the employer after
notice by the Commission to the parties." Here, employer made no
such motion. The record contains no indication that the
commission ever dismissed the claim. Indeed, absent a motion by
employer, the commission had no authority to do so. Thus, we
conclude, claimant's inaction with respect to his Virginia claim
is not tantamount to a withdrawal.
"[T]he commission cannot hold that a claimant has withdrawn
a ``claim' absent a clear showing that the claim has been
withdrawn." Keenan v. Westinghouse Elevator Co., 10 Va. App.
232, 235, 391 S.E.2d 342, 344 (1990). In Keenan, the claimant
filed a claim for benefits in February 1987, alleging an injury
by accident in May 1986. Id. at 233-34, 391 S.E.2d at 343. In
December 1987, the claimant filed an Application for Hearing,
which he subsequently withdrew in March 1988. Id. at 234, 391
S.E.2d at 343. In August 1988, claimant filed another
Application for Hearing; however, the commission ruled that
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claimant's withdrawal of his initial Application for Hearing was
effectively a withdrawal of his claim for benefits. Id. Noting
the distinction between a claim for benefits and an Application
for Hearing, this Court reversed the commission, ruling there had
been no clear showing that the claimant had intended to withdraw
his claim. Id. at 235-36, 391 S.E.2d at 344.
The commission ruled that claimant had not withdrawn his
claim, and we find no basis to reverse that determination. The
initial claim was never placed on the hearing docket because
claimant failed to file his medical records. When pressed for
his medical records, claimant responded that he was pursuing a
claim in Maryland at that time. We agree with the commission
that nothing in the correspondence suggests claimant intended to
withdraw his Virginia claim to pursue his claim in Maryland.
Although the commission stated its intention to "dispose" of the
matter and advised claimant to forward his medical records to
avoid "dismissal," we find no authority for the commission to
dispose of the matter absent a motion by employer, and, in any
event, the commission made no such disposition. Furthermore, the
commission's November 1994 correspondence, which sought a
response to its August 1992 letter inquiring about a disposition
of the matter, demonstrates that the commission had not disposed
of the claim. Also, contrary to employer's argument, we do not
find claimant's refusal to sign the Agreed Statement of Facts
evidence that he intended to not pursue a claim in Virginia. At
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most, such an act is evidence that claimant simply did not agree
with the statement.
In short, we find no clear showing that claimant withdrew
his claim within the meaning of Keenan. Accordingly, we find the
claim is not time barred.
B.
Employer next contends the commission erred in finding
claimant suffered temporary total disability subsequent to May
25, 1992. Dr. Cowan released claimant to return to a light duty
job scheduled to begin May 26, 1992. By May 29, 1992, however,
Dr. Lin directed claimant not to return to work. Claimant was
not released to return to work again until April 1993. Based on
the medical records, both the deputy commissioner and the full
commission found claimant was totally disabled until May 26 and
subsequent to May 28. Based on Dr. Cowan's release, the deputy
commissioner found claimant was not totally disabled during the
three-day period between May 26 and May 28. Based on Dr. Lin's
records, the full commission found claimant's total disability
continued through the three-day period. Employer argues Dr.
Cowan's release is evidence that claimant was not totally
disabled as of May 26 and contradicts the records of Drs. Lin and
April which suggest he was. The commission's resolution of this
apparent conflict in the medical evidence binds this Court on
review if it is supported by credible evidence. See, e.g., City
of Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246
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(1992). We do not find the records of Drs. Lin and April
incredible and, accordingly, affirm the commission's finding.
C.
Finally, employer argues that the commission erred in
awarding temporary total disability benefits after June 30, 1992.
Although formal pleading is not required in matters before the
commission, see Keenan, 10 Va. App. at 233, 391 S.E.2d at 343,
due process requires that the employer be fully apprised of the
claim being presented, see Sergio's Pizza v. Soncini, 1 Va. App.
370, 375-76, 339 S.E.2d 204, 207 (1986).
Claimant responded to employer's interrogatories, stating
that he sought temporary total disability benefits from April 17,
1992 through June 30, 1993. However, at the hearing on the
following day, claimant made clear his intention to seek benefits
for the periods from April 17, 1992 to June 30, 1992, and
November 1, 1993 to July 31, 1994. Upon this statement, the
deputy commissioner terminated the award as of June 30, 1992. On
review to the full commission, claimant requested his benefits be
extended beyond June 30, 1992. Without taking additional
evidence, and without addressing the issue, the commission
extended claimant's benefits beyond June 30, 1992. The
commission terminated benefits in April 1993, finding claimant
had been released to light duty.
We find that, in extending claimant's benefits beyond June
30, 1992, the commission deprived employer of the opportunity to
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defend against the claim for benefits during the period June 30,
1992 and April 13, 1993. Employer raised the defense of
claimant's release to return to work in April 1993 before the
deputy commissioner. However, contrary to claimant's argument,
we do not find that this establishes employer suffered no
prejudice. Employer presented evidence of the April 1993 release
to defend against claimant's claim for benefits during the period
November 1993 to July 1994, not as rebuttal to evidence of
claimant's condition during the period June 1992 to April 1993.
Accordingly, we reverse the commission's award of benefits during
the period June 30, 1992 to April 13, 1993 and remand the case to
allow both parties to present evidence on the issue whether
claimant was totally disabled during that period. See Soncini, 1
Va. App. at 377, 339 S.E.2d at 208.
Affirmed in part,
reversed in part,
and remanded.
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