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APPEALS and VWC REVIEW
VWC Review. See Reviews
Application for full commission review of an award must be made within twenty days of the entry of the award. Code Sec. 65.2-705 (A). Absent clear and convincing evidence of fraud, misrepresentation, mutual mistake, or imposition the commission has no authority to vacate an award from which no party sought timely review. See Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 80, 367 S.E.2d 204, 207 (1988); Tucker, 3 Va. App. at 121, 348 S.E.2d at 419; K & L Trucking Co. v Thurber, 1 Va. App. 213, 218, 337 S.E.2d 299, 302 (1985); John Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697(1985). See example of a format for Request for Review. Code Sec. 65.2-705 (A) now provides that a request for review must be made within twenty days after receipt of notice of such award, sent as provided in Code Sec.65.2-704 (A), which provides that a copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail.
The commission remains free to make findings of fact different from those made by the deputy commissioner. See Virginia Dep't of State Police v. Dean, 16 Va. 254, 257, 430 S.E.2d 550, 551 (1993).
"When the deputy commissioner makes an explicit finding of credibility based upon a witness' demeanor or appearance at the hearing, the commission may reverse that factual finding when it articulates a basis for its different conclusion that is supported by credible evidence." Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 728, 418 S.E.2d 904, 907 (1992).
Issues not addressed in the written statements on review to the full Commission are waived and abandoned. Terry v. Coe, VWC File No. 171-79-16 [96 WC UNP 1717916] (May 30, 1996); Crusenberry v. Bristol Compressors, VWC File No. 151-41-04 [95 WC UNP 1514104] (Nov. 27, 1995). Rule 3.2 of the Rules of the Virginia Workers' Compensation Commission provides as follows:
The Commission will advise the parties of the schedule for filing brief written statements supporting their respective positions. The statements shall address all errors assigned, with particular reference to those portions of the record which support a party's position.
In applying Rule 3.2, the commission has consistently held that where a party assigns error to an issue in its request for review, but then does not argue that issue in its written statement, the issue may be deemed waived or abandoned. See Leon v. Lewis-Gale Clinic, 76 O.I.C. 350 (1997); Cruesenberry v. Bristol Compressors, Inc., V.W.C. No. 151-41-04 (November 27,1995); Gruner v. Northern Neck Transfer, Inc., V.W.C. No.159-79-14 (May 17, 1994). Courts have recognized that the commission, "having the right to make and enforce rules, should also have the opportunity to construe its own rules. Consequently, review is limited to a determination whether the commission's interpretation of its own rule was reasonable." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761,763 (1989) (citation omitted). When a party raises an issue in a request for review, but subsequently fails to mention that issue or present argument relevant to that issue in the written statement, it is reasonable for the commission to conclude that the party no longer contests that issue or finding. No reason exists for the commission to address an issue on review which is not contested. The commission's interpretation of Rule 3.2 was reasonable. Accordingly, the commission did not err in ruling that claimant waived or abandoned the issue of whether she made a timely cure of her unjustified refusal of selective employment under the provisions of Code Sec. 65.2-510, because she failed to address that issue in her written statement on review. Sandra C. Graham v. Consolidated Stores Corporation, Record No. 1464-98-3 (December 8, 1998).
A single award may not be segmented into component parts, some of which are final dispositions and others of which are not. An appeal of a deputy commissioner's award empowers the [commission] to reexamine all of the deputy commissioner's conclusions. Mace v. Merchants Delivery Moving & Storage, 221 Va. 401, 404 n.3, 270 S.E.2d 717, 719 n.3 (1980). On review, the commission routinely considers matters that are germane to the issues specifically on review. See Classic Floors, 9 Va. App. at 94, 383 S.E.2d at 763; The Greif Companies v. Sipe, 16 Va. App. 709, 713-14, 434 S.E.2d 314, 317 (1993). Rule 3.1 permits the commission, in the interest of justice, likewise to consider issues not specified in the request for review.
APPEALS
Appeal. Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by the Court on appeal. Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698(1988).
The commission's construction of the Act is entitled to great weight on appeal. 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985).
Issues not disputed before commission will not be considered on appeal; Rule 5A:18. Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d 4, 6 (1988).
The record does not indicate that employer ever informed the full commission of its objections to the commission's decision on these grounds. By virtue of employer's timely appeal to this Court, the record establishes that employer received a copy of the commission's March 26, 1999 decision and that the decision clearly indicated that the commission was awarding Jones benefits beginning January 1, 1997, even though Jones' application had only requested benefits beginning February 16, 1998. The record does not show that employer ever filed a motion to reconsider or set aside the full commission's decision. Because employer did not raise these arguments before the commission, the Court of Appeals held that it could consider them for the first time on appeal. See Rule 5A:18; Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364 S.E.2d 4, 6 (1988). Mary Washington Health Center v. Iris Jones, Record No. 0959-99-2 (September 21, 1999). WP Version.
If an argument was not fully developed in the appellant's brief, the Court need not address this question. Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 238 (1992) (citing Rogers v. Rogers, 170 Va. 417, 421, 196 S.E. 586, 588 (1938)). Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. Id.
Under Rule 5A:18, [n]o ruling of the trial court or the Virginia Workers' Compensation Commission will be considered as a basis for reversal unless the objection was stated with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. This procedural bar applies even to constitutional claims. See, e.g., Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). Overhead Door Company of Norfolk v. Daniel Lee Lewis, Record No. 0597-98-2 (January 26, 1999).
Virginia Court of Appeals construes the evidence in the light most favorable to the party prevailing below. R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990); States Roofing Corp. v. Bush Construction Corp., 15 Va. App. 613, 616, 426 S.E.2d 124, 126(1993).
The commission's factual findings will not be disturbed on appeal if supported by credible evidence. Bullion Hollow Enterprises, Inc. v. Lane, 14 Va. App. 725, 730, 418 S.E.2d 904, 907 (1992). On appeal, the commission's findings of fact are conclusive and binding if based on credible evidence. V.P.I. & State Univ. v. Wood, 5 Va. App. 72, 74, 360 S.E.2d 376, 377 (1987). The fact that contrary evidence may be in the record is of no consequence if there is credible evidence to support the commission's finding. Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986); Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). It is fundamental that a finding of fact made by the commission is conclusive and binding upon the appellate court. Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). The existence of contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding. The standard of appellate review of the commission's findings of fact is well established. The court does not retry the facts before the Commission nor reviews the weight, preponderance of the evidence, or the credibility of witnesses. If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by the court on appeal, even though there is evidence in the record to support contrary findings of fact. Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal. Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). It lies within the commission's authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal. Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
When the facts are undisputed, their interpretation is a matter of law. Wells v. Commonwealth, Department of Transportation, 15 Va. App. 561, 563, 425 S.E.2d 536, 537 (1993).
Court of Appeals is not bound by the commission's determination of legal questions. Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
Unless the court can say as a matter of law that claimant’s evidence sustained claimant’s burden of proof, the commission's findings are binding and conclusive on appeal. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 788, 788 (1970). Unless the court can say as a matter of law that claimant's evidence sustained his burden of proving that he worked for employer as an employee rather than an independent contractor, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). What constitutes an employee is a question of law; but, whether the facts bring a person within the law's designation, is usually a question of fact. Baker v. Nussman, 152 Va. 293, 298, 147 S.E. 246, 247 (1929).
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Unless the Court of Appeals can say as a matter of law that a party's evidence sustained his burden of proof, the commission's findings are binding and conclusive upon the Court of Appeals. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Factual Findings--The actual determination of causation is a factual finding that will not be disturbed on appeal if there is credible evidence to support the finding. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). In addition, questions raised by conflicting medical opinions must be decided by the commission. Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). A question raised by conflicting medical opinions is a question of fact. Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). The commission's interpretation of the medical evidence is a finding of fact. Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556 (1985). A determination that a claimant’s conduct was unjustified constituted a factual finding by the commission, supported by credible evidence. See Chesapeake Masonry Corp. v. Wiggington, 229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985). The determination of a witness' credibility is within the exclusive purview of the fact finder. Goodyear Tire &Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437(1987). Whether a disease is causally related to the employment and not causally related to other factors is a finding of fact. Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988).
If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by this Court on appeal, even though there is evidence in the record to support contrary findings of fact. "The commission's interpretation of medical evidence, as well as the commission's finding of reasonable marketing of remaining work capacity, are reviewed under this standard. Ford Motor Co. v. Hunt, 26 Va. App. 231, 236, 494 S.E.2d 152, 154-56 (1997) (citing Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556 (1985)).
In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses. Wagner Enters., Inc., v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Mixed Questions of Law and Fact. Whether an injury arises out of the employment is a mixed finding of law and fact and is reviewable by the appellate court. Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). The question of whether disputed medical treatment was necessary within the meaning of Code Sec. 65.2-603 is a mixed question of law and fact. Goad, 15 Va. App. at 712-13, 427 S.E.2d at 217, and findings on mixed questions are not binding upon the appellate court. However, unless the court concludes that claimant proved, as a matter of law, that his employment caused his injury, the commission's finding is binding and conclusive on appeal. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). A ruling that an employer did not strictly enforce a safety rule is a mixed question of law and fact, and is therefore, reviewable by this Court on appeal. Virginia Elec. and Power Co. v. Kremposky, 227 Va. 265, 270, 315 S.E.2d 231, 234 (1984).
However, where there is no conflict in the evidence as to the relevant factors, the question of sufficiency is one of law. The Greif Companies v. Sipe, 16 Va. App. 709, 716, 434 S.E.2d 314, 318 (1993).
No relief from payments on appeal to Supreme Ct. as opposed to appeal to Ct. of Appeals. If the legislature had intended to provide relief from payments during the period for appeal to the Supreme Court, it could have done so. The legislature did not write its statute expansively. Solid Gold Corp. v. Wang, 18 Va. App. 66, 69, 441 S.E.2d 643, 645 (1994). Although an employer who files timely appeals to the commission and the Court of Appeals is not obligated to make any payment until the Court of Appeals rules, nothing in Code Sec. 65.2-706, 65.2-524 or elsewhere extends the carrier's right to delay payment without penalty beyond the Court of Appeals level of review.
Beginning July 1, 1999, however, Code Sec. 65.2-706 (C) has been amended to provide:
"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."
Opening Brief not timely filed compels dismissal. Uninsured Employers' Fund v. Todd E. Coyle, Record No. 1531-95-2, March, 1996. Appellant did not file an opening brief by the due date set pursuant to Rule 5A:19(b)(1). Nor did it file a motion for an extension of time to file the opening brief. Rule 5A:19(b)(1) reads: "The appellant shall file the opening brief in the office of the clerk of the Court of Appeals within 40 days after the date of the filing of the record in such office." The word "shall" is generally used in an imperative or mandatory sense. See Mayo v. Commonwealth, 4 Va. App. 520, 523, 358 S.E.2d 759 (1987).
Final awards are appealable. Interlocutory opinions are not appealable. Code Sec. 65.2-706 provides that no appeal shall be taken from the decision of one Commissioner until a review of the case has been had before the full Commission, as provided in Code Sec. 65.2-705, and an award entered by it. Appeals shall lie from such award to the Court of Appeals. The words 'such award' contained in Sec. 65.2-706 mean final award, that is, a decision of the Commission granting or denying, or changing or refusing to change, some benefit payable or allowable under the Act and leaving nothing to be done except to superintend ministerially the execution of the award. Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985). If the merits of the case have not been addressed, and the opinion was interlocutory and not determinable of the controversy, courts are without jurisdiction to entertain an appeal. See generally, Polumbo v. Polumbo, 13 Va. App. 306, 411 S.E.2d 229 (1991); Weisenbaum v. Weisenbaum, 12 Va. App. 899, 407 S.E.2d 37 (1991); Pinkard v. Pinkard, 12 Va. App. 848, 407 S.E.2d 339 (1991).
Code Sec. 65.2-706 provides that "[n]o appeal shall be taken from the decision of one Commissioner until a review of the case has been had before the full Commission, as provided in Code Sec. 65.2-705, and an award entered by it. Appeals shall lie from such award to the Court of Appeals . . . ." "[T]he words 'such award' . . . [contained in Sec. 65.2-706] mean final award, that is, a decision of the . . . Commission granting or denying, or changing or refusing to change, some benefit payable or allowable under the . . . Act and leaving nothing to be done except to superintend ministerially the execution of the award." Jewell Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985). The commission's determination of the jurisdiction issue in its opinion and its subsequent remand of the case to the deputy commissioner for a determination of the merits of the claim for benefits did not constitute a final award appealable to the Court of Appeals. See id. The opinion did not adjudicate "the principles of a cause." Code Sec. 17-116.05(4). The commission merely held that it had jurisdiction over the employer, and it remanded the case to the deputy commissioner for further proceedings. The merits of the case had not been addressed, and the opinion was interlocutory and not determinable of the controversy. See generally Polumbo v. Polumbo, 13 Va. App. 306, 411 S.E.2d 229 (1991); Weisenbaum v. Weisenbaum, 12 Va. App. 899, 407 S.E.2d 37 (1991); Pinkard v. Pinkard, 12 Va. App.848, 407 S.E.2d 339 (1991). Uninsured Employer's Fund v. Rosa L. Harper, Record No. 0693-97-4 (February 10, 1998) (minister of a local church was not the employee of the local church, where the bishop had the power to appoint and dismiss him, and had the power to control and direct his actions, and thus the local church did not have three employees necessary to confer jurisdiction upon the commission.)..
If an appeal does not present a case of conflicting evidence or a dispute concerning the commission's findings of fact, then the issue is the sufficiency of the evidence. Because there is no conflict in the evidence, the issue is purely a question of law. This Court is not bound by the legal determinations made by the commission. Court of Appeals must inquire to determine if the correct legal conclusion has been reached. Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993); City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965).
For an opening brief to be timely, it must, within forty days after the filing of the record, (1) be delivered to the clerk of the Court of Appeals, or (2) be mailed in accordance with Rule 5A:3(c) of the Court of Appeals. Furthermore, while Rule 5A:3(b) allows an appellant to move to extend the time for filing an opening brief, this rule must be read in conjunction with other relevant provisions of the rules. The Court of Appeals holds that an appellant may move to extend the time to file an opening brief, but the court’s authority to address the motion cannot extend beyond the authority granted to the court to process the opening brief itself. Accordingly, a motion to extend the time to file an opening brief must, within forty days after the filing of the record, (1) be delivered to the clerk of the Court, or (2) be mailed in accordance with Rule 5A:3(c). Under Rule 5A:19(b)(1), an opening brief must be timely filed; yet, that rule fails to provide a sanction for noncompliance. To determine the appropriate sanction, the court looks to Rule 5A:26, which reads: "If neither party has filed a brief in compliance with these Rules, the Court of Appeals may dismiss the appeal. If one party has but the other has not filed such a brief, the party in default will not be heard orally, except for good cause shown." If an appellant has failed to meet the mandatory filing requirement for an opening brief, then, at that point in time, "neither party has filed a brief in compliance with these Rules." In such a case, Rule 5A:26 permits the Court of Appeals to dismiss the appeal.
In employer's earlier appeal of the circuit court's denial of its request for a subrogation lien, the Virginia Supreme Court denied employer's petition on the merits. See Harward v. Commonwealth, 5 Va. App. 468, 476, 364 S.E.2d 511, 515 (1988) (noting that "'decision to . . . refuse a petition for writ of error is based upon . . . the merits of the case'" (quoting Saunders v. Commonwealth, 214 Va. 697, 700, 204 S.E.2d 421, 424 (1974))). This denial constituted a ruling that Code Secs. 65.2-309 and 65.2-310 do not permit any employer to obtain a lien on proceeds from a legal malpractice suit under the facts of this case. See id. (noting that "doctrine . . . appl[ies] even when 'the precise issue involved' resulted in denial of a petition for a writ of error in a separate case'" (quoting Stillwell v. Commonwealth, 219 Va. 214, 226, 247 S.E.2d 360, 368(1978))). Overhead Door Company of Norfolk v. Daniel Lee Lewis, Record No. 0597-98-2 (January 26, 1999).
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