Westmoreland Coal Company v. Willie M. Gibson

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
WESTMORELAND COAL COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2829-96-3 JUDGE WILLIAM H. HODGES
JULY 8, 1997
WILLIE M. GIBSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael F. Blair (Penn, Stuart & Eskridge, on
brief), for appellant.
Susan D. Oglebay for appellee.
Westmoreland Coal Company (employer) appeals a decision of
the Workers' Compensation Commission (commission) reinstating
Willie Gibson's (claimant) temporary total disability benefits
as of April 9, 1996. Employer contends that the commission erred
in ruling upon the merits of claimant's April 24, 1996
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
change-in-condition application when it reviewed the deputy
commissioner's decision on employer's March 15, 1996 1
change-in-condition application. Because we find that the
commission improperly considered claimant's April 24, 1996
change-in-condition application, we reverse and remand this case
to the commission so that it may consider that application
pursuant to proper commission procedures.
The deputy commissioner's decision dealt solely with the
issue presented by employer's March 15, 1996 application. The
commission did not docket claimant's April 24, 1996 application
for hearing. Moreover, claimant's application was not
consolidated with employer's application nor did the deputy
commissioner consider claimant's application in rendering his
decision. The commission's adjudication of claimant's
application, with no prior notice to employer, deprived employer
of due process and did not comply with the commission's
procedures set forth in its own rules. See Rules 1.2 through
1.6, and 2, Rules of the Virginia Workers' Compensation
Commission; see also Sergio's Pizza v. Soncini, 1 Va. App. 370,
376, 339 S.E.2d 204, 207 (1986) ("The procedure utilized [by the
commission] must afford the parties minimal due process
safeguards.").
Accordingly, we remand this case to the commission so that
1
The parties and the commission referred to employer's
application as filed on March 15, 1996. However, the record
indicates that the application was filed on March 22, 1996.
2
it may consider claimant's change-in-condition application in
accordance with its rules.
Reversed and remanded.
3