Denny R. Maggard v. Westmoreland Coal Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Argued at Salem, Virginia
DENNY R. MAGGARD
MEMORANDUM OPINION* BY
v. Record No. 3001-00-3 JUDGE G. STEVEN AGEE
JULY 3, 2001
WESTMORELAND COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
P. Heith Reynolds (Wolfe, Farmer, Williams &
Rutherford, on brief), for appellant.
Lisa Frisina Clement (Michael F. Blair;
(PennStuart, on brief), for appellee.
On this appeal, Denny R. Maggard (the claimant) appeals the
decision of the Virginia Workers' Compensation Commission (the
commission) that his claim for benefits, based on a change in
condition, is barred by the statute of limitations in Code
§ 65.2-708. The claimant contends that the commission erred in
finding that his claim, received by the commission after the
twenty-four month statute of limitations had run, was not shown
to have been mailed via certified mail on October 13, 1998, the
last day within the requisite time period. We conclude that the
commission's finding is supported by credible evidence, and we
affirm the decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
The claimant sustained a back injury on November 15, 1991
while working for Westmoreland Coal Company (the employer). The
claimant filed a claim under the Workers' Compensation Act that
was accepted by the employer, and based upon a Memorandum of
Agreement, the commission entered an award on December 31, 1991.
From 1992 through October 12, 1996, the parties executed
supplemental agreements and findings of fact as the claimant's
condition permitted or prevented him from working. When the
claimant was able to work his benefits were suspended, and when
the claimant was unable to work total disability benefits were
reinstated. Compensation benefits were last paid to the
claimant on October 11, 1996, permitting the claimant to make
any additional claims up until October 11, 1998. October 11,
1998, however, fell on a weekend, and the tolling date was
statutorily extended to October 13, 1998 by Code § 1-13.3:1.
On October 16, 1998, the commission received, via the
United States Postal Service (USPS), the claimant's claim for
benefits due to a change in condition. The requisite papers for
the claim were in an envelope postmarked October 13, 1998, with
a certified mail sticker. The postmark on the envelope was
created by a postage meter at the office of claimant's counsel,
not the USPS.
The employer argued the statute of limitations barred
consideration of the claim. The claimant contended, however,
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that his claim was in fact filed on the last permissible day and
thus was not time barred. Since the commission received the
claim after the statute of limitations had run, the claimant was
required to prove the claim was in fact sent via certified mail
on October 13, 1998.
In an attempt to meet this burden placed upon him, the
claimant submitted the affidavit of C. Scott Stine (Stine),
employed as the temporary postmaster at the United States Post
Office in Norton, Virginia. In the affidavit, Stine stated:
To the best of my knowledge as Officer In
Charge at the Norton Post Office based on
the 3811 [the green card denoting certified
mail] and the postmarked envelope the piece
of mail was posted on 10/13/98 . . . through
certified mail at the United States Post
Office at Norton, VA 24273.
However, at a subsequent deposition, Stine testified that
the green card would not reflect the date that the piece of mail
was actually deposited at the post office.
Stine's testimony was limited to a general description of
normal post office operating procedure because he was not yet
employed at the Norton post office on October 13, 1998. He
further testified that USPS personnel normally check the private
meter dates to validate the meter date as the date of actual
receipt by the USPS. If the date is incorrect, the mail is
re-postmarked to reflect the date it was actually received by
the post office. Otherwise, a second postmark is not applied.
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Stine also testified that the post office is not one
hundred percent accurate due to human error. The only way to
know for certain the exact date the post office received the
specific piece of mail was to examine the white certification
receipt for certified mail. The claimant did not submit the
white certification receipt into evidence, explain its absence
or provide testimony as to when the envelope containing the
claim was actually delivered to the post office.
Without the white receipt or other positive verification
that the claim was actually posted at a post office on October
13, 1998, the commission found that it could not find as a fact
that the claim was posted as certified mail on October 13, 1998.
It therefore ruled that the filing occurred when the commission
received it on October 16, 1998, more than twenty-four months
after the claimant last received benefits.
ANALYSIS
The claim filed by the claimant, and received by the
commission on October 16, 1998, was based on a change in his
condition under Code § 65.2-708, which provides in pertinent
part:
A. Upon . . . the application of any party
in interest, on the ground of a change in
condition, the Commission may review any
award . . . . No such review shall be made
after twenty-four months from the last day
for which compensation was paid, pursuant to
an award under this title . . . .
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Pursuant to Code § 65.2-101, a claim is considered filed when it
is
hand delivered to the Commission's office in
Richmond or any regional office maintained
by the Commission; sent by telegraph,
electronic mail or facsimile transmission;
or posted at any post office of the United
States Postal Service by certified or
registered mail. Filing by first-class
mail, telegraph, electronic mail or
facsimile transmission shall be deemed
completed only when the application actually
reaches a Commission office.
It is the claimant's contention that he complied with these
statutory provisions by posting his claim at the post office in
Norton, by certified mail, on October 13, 1998. He asks this
Court to hold that the commission erred in finding that the
filing date was October 16, 1998.
The principle is well established that "[t]he commission's
findings of fact are conclusive and binding on us when there is
credible evidence in support of such findings." Island Creek
Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788
(1988). Equally well established is our obligation on appeal to
"review the evidence in the light most favorable to the
prevailing party [before the commission]." R.G. Moore Building
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). Unless we can say as a matter of law that the
claimant's evidence proved that he filed a timely claim with the
commission, the commission's findings are binding and conclusive
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upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
Upon a review of the evidence, we cannot say as a matter of
law that the claim was filed on October 13, 1998. The
commission's finding that the evidence did not confirm the
claimant's contention that his claim was mailed from the Norton
post office on October 13, 1998 via certified mail is credibly
supported by the record. The claimant did not present the white
certified mail receipt that would prove the date on which the
post office received the mailing; and he did not present
testimony by anyone as to when, in fact, the mailing was
delivered to the post office.
The claimant's evidence is a private postmark dated October
13, 1998, which was not re-postmarked by the post office, and
the testimony of Stine, who did not work on October 13, 1998,
and had not yet started his duties at the Norton post office.
Stine's testimony was limited to the normal and general
operating procedures of the postal service in regards to
handling certified mail. This evidence is further limited by
Stine's testimony that human error does affect normal operating
procedure and the only way to absolutely know when the post
office received a mailing to be posted as certified mail is to
check the white receipt stamped by the post office when the mail
is delivered to the post office.
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We cannot say the commission is plainly wrong. To hold
that the commission erred we would have to assume, without
evidence, that the claimant or his agent presented the claim as
certified mail to the post office on October 13, 1998 and that
the post office ran according to normal operating procedure on
October 13, 1998, as to all pieces of mail received that day.
Without evidence in the record on these points, we cannot say
the commission erred in finding the claimant failed to establish
that the claim was filed within the statute of limitations.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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