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DUE PROCESS
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.").
"Due process is flexible and calls for such procedural protections as the particular situation demands." Duncan v. ABF Freight System, Inc., 20 Va. App. 418, 422, 457 S.E.2d 424, 426(1995) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). It is well settled that [a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Crystal City Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408 S.E.2d 252, 254 (1991) (citing Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306, 314 (1950)) (other citations omitted). "Pleading requirements in administrative proceedings before [the commission] are traditionally more informal than judicial proceedings." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376,339 S.E.2d 204, 207 (1986). However, the commission must use procedures that "afford the parties minimal due process safeguards." Id. Where the commission modifies a claim at the hearing or review stage without advising the employer in advance, "the dispositive issue . . . is whether the employer was prejudiced" by the lack of notice. Crystal City Oil Co., 12 Va. App. at 1018, 408 S.E.2d at 253-54 (amendment adding claim at change-in-condition hearing did not prejudice employer because "employer had sufficient notice reasonably calculated under the circumstances to advise it of the pending claim"). See Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 270 S.E.2d 723 (1980)(consolidation with the original claim at the hearing stage gave the employer sufficient notice for the claim to be treated as a change of condition rather than an original application); Sergio's Pizza v. Soncini, 1 Va. App. 370, 339 S.E.2d 204 (1986)(procedure for treating benefits claim as change-in-condition claim at review stage did not provide employer a reasonable opportunity to present evidence or defend).
The commission's procedure "precluded an adequate opportunity to defend [against an award for this time period] since it was litigated only as [a claim for benefits beginning February 1, 1996]." Sergio's Pizza, 1 Va. App. at 376, 339 S.E.2d at 208. Although employer collected and presented medical evidence to support its causation defense, the evidence is ambiguous regarding claimant's degree and duration of disability from October through December 1995. Had employer been on notice that it would be required to defend against a claim for wage benefits during this time, it could have addressed this period in detail and obtained additional information. The commission's sua sponte award of unrequested benefits denied employer this opportunity and "fails to comport with due process notions of fair play and substantial justice." Id. at 377, 339 S.E.2d at 208.
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