7-Eleven and American Protection Ins. Co. v. Smith

• Court: Court of Appeals of Virginia
• Decided: June 5, 2001
• Docket: 3041001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia

7-ELEVEN AND AMERICAN PROTECTION INSURANCE COMPANY MEMORANDUM OPINION* BY v. Record No. 3041-00-1 JUDGE NELSON T. OVERTON JUNE 5, 2001 LAURA M. SMITH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Linda M. Gillen (Andrew R. Blair, on brief), for appellants.

No brief or argument for appellee.

7-Eleven and its insurer (hereinafter referred to as

"employer") contend that the Workers' Compensation Commission

erred in finding that Laura M. Smith's (claimant) May 6, 1996

change-in-condition application was properly filed and not

abandoned by claimant. Because we find that the full

commission's November 20, 2000 opinion did not constitute a

final award appealable to this Court, we dismiss employer's

appeal.

Code § 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 § 65.2-705, and an award entered by it. Appeals shall lie from such award to the Court of Appeals . . . ."

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. "[T]he words 'such award' . . . [contained in § 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."

Uninsured Employer's Fund v. Harper, 26 Va. App. 522, 527, 495

S.E.2d 540, 543 (1998) (citation omitted).

The full commission's November 20, 2000 opinion affirmed

the deputy commissioner's determination that claimant's May 6,

1996 change-in-condition application was properly filed and not

abandoned. The full commission then referred this matter back

to the hearing docket for a determination of the substantive

issues surrounding claimant's change-in-condition applications.

Thus, the commission's November 20, 2000 opinion did not dispose

of the merits of the claims, leaving nothing further to be done.

Accordingly, it did not constitute a final award appealable to

this Court. See id.

For these reasons, we dismiss employer's appeal.

Dismissed.

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