COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ARLINGTON HOSPITAL FOUNDATION, INC., ARLINGTON ELDER CARE D/B/A THE WASHINGTON HOUSE AND HEALTHCARE PROVIDERS GROUP MEMORANDUM OPINION * v. Record No. 2449-95-4 PER CURIAM FEBRUARY 27, 1996 ESTELLE GEISEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (John E. McIntosh, Jr.; Crews & Hancock, on briefs), for appellants.
(Kenneth W. Smith; Haas & Dennis, on brief), for appellee.
Arlington Hospital Foundation, Inc. and its insurer
(hereinafter collectively referred to as employer) appeal a
decision of the Workers' Compensation Commission denying its
application to terminate Estelle Geisen's (claimant) compensation
benefits. Employer contends that the commission erred in
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. (1) relying upon a March 24, 1995 report of Dr. Norman Coleman,
which claimant did not file with the commission until after the
deputy commissioner rendered her opinion and which did not
qualify as after-discovered evidence; and (2) finding that
claimant was unable to return to her pre-injury work as of
January 30, 1995. We conclude that the March 24 report should
not have been considered and therefore reverse the commission's
decision. 1
I.
On September 23, 1993, claimant sustained a compensable
injury by accident to the right side of her face. On November
16, 1993, claimant came under the care of Dr. Coleman, an oral
surgeon. On January 25, 1995, Dr. Coleman wrote to employer's
insurance carrier, releasing claimant to return to work as of
January 30, 1995. On February 1, 1995, based upon this report,
employer filed a change in condition application requesting that
the commission terminate claimant's compensation benefits as of
January 30, 1995.
On February 27, 1995, the deputy commissioner wrote to the
parties informing them that the case had been selected for an
on-the-record determination. The deputy commissioner directed
the parties to submit position statements by March 17 and to
submit all evidence by March 27, after which she would close the 1 We find no merit in claimant's argument that employer failed to preserve its right to appeal the commission's decision to consider Dr. Coleman's March 24, 1995 report.
2 record. On March 16 claimant's counsel wrote to the deputy
commissioner and requested a continuance on the grounds that Dr.
Coleman, who had examined claimant again that day, would be out
of town until March 20 and therefore could not prepare a report
until after that date. Employer objected to claimant's request
for a continuance. The deputy commissioner did not respond to
claimant's request.
On March 24, 1995, Dr. Coleman rendered a report stating
that he prematurely released claimant to return to work and that
he was referring her for a neurological evaluation. Claimant's
counsel filed this report with the commission on April 14, 1995,
seven days after the deputy commissioner rendered her opinion.
The record does not reflect when claimant's counsel sent the
report to the commission. On April 7, 1995, the deputy commissioner rendered her
decision, granting employer's application based upon Dr.
Coleman's January 25 report. On review, a majority of the
commission considered Dr. Coleman's March 24 report and reversed
the deputy commissioner's decision. The commission found that
"it would be unjust to deprive the claimant of compensation for a
period during which the evidence is uncontradicted that she was
disabled." The commission also noted that had the deputy
commissioner granted claimant's request for a continuance until
she received Dr. Coleman's letter, the evidence clearly would
have shown that claimant was unable to perform the duties of her
3 pre-injury job.
Commissioner Tarr dissented, finding that the commission
improperly considered the March 24 report because it was not part
of the deputy commissioner's record and it did not qualify as
after-discovered evidence. He noted that claimant failed to
provide any explanation for why the March 24 report, which was
issued by Dr. Coleman before the record closed on March 27, 1995,
was not filed with the commission before April 14, 1995.
Commissioner Tarr found that the majority's opinion ignored the
mandate of Rule 3:3 of the Rules of the Workers' Compensation
Commission. II.
"[A] rule when adopted pursuant to rule-making authority has
the same force as a statute." Graham v. Peoples Life Ins. Co., 7
Va. App. 61, 72, 372 S.E.2d 161, 168 (1988) (reh'g en banc). The
General Assembly has authorized the commission to "make rules and
regulations for carrying out the provisions of this title." Code
§ 65.2-201. "The adoption of such rules is a legislative act,
and the enactment is binding and law upon the parties and the
Commission as well." Graham, 7 Va. App. at 72, 372 S.E.2d at
168. Rule 3:3 provides as follows: No new evidence may be introduced by a party at the time of review except upon agreement of the parties. A petition to reopen or receive after- discovered evidence may be considered only upon request for review. A petition to reopen the record for additional evidence will be favorably acted upon by the full Commission only when it appears to the Commission that such course is absolutely necessary and advisable and
4 also when the party requesting the same is able to conform to the rules prevailing in the courts of this State for the introduction of after-discovered evidence.
In Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 327,
328-29, 338 S.E.2d 352, 353 (1986), we held that in the absence
of a formal petition requesting the reopening of the case and the
taking of additional testimony, the commission's rules preclude
it from considering on review additional evidence or medical
reports that were not available to the deputy commissioner. A
claimant's discovery after the deputy commissioner's opinion that
certain medical reports were omitted does not constitute a basis
on which to reopen the record. Failure to obtain medical records
that were available and known does not constitute due diligence. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401
S.E.2d 200, 207 (1991).
Here, claimant did not present Dr. Coleman's March 24 report
to the deputy commissioner before the record closed on March 27.
Claimant also did not seek consideration of this report on
review as after-discovered evidence. Moreover, Dr. Coleman's
March 24 report did not qualify as after-discovered evidence. No
evidence showed that claimant obtained the March 24 report after
the record closed on March 27 or that the report could not have
been obtained prior to the record closing through the exercise of
reasonable diligence. See Williams v. Peoples Life Ins. Co., 19
Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).
As claimant did not file a petition to reopen the record and
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ARLINGTON HOSPITAL FOUNDATION, INC., ARLINGTON ELDER CARE D/B/A THE WASHINGTON HOUSE AND HEALTHCARE PROVIDERS GROUP MEMORANDUM OPINION * v. Record No. 2449-95-4 PER CURIAM FEBRUARY 27, 1996 ESTELLE GEISEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (John E. McIntosh, Jr.; Crews & Hancock, on briefs), for appellants.
(Kenneth W. Smith; Haas & Dennis, on brief), for appellee.
Arlington Hospital Foundation, Inc. and its insurer
(hereinafter collectively referred to as employer) appeal a
decision of the Workers' Compensation Commission denying its
application to terminate Estelle Geisen's (claimant) compensation
benefits. Employer contends that the commission erred in
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. (1) relying upon a March 24, 1995 report of Dr. Norman Coleman,
which claimant did not file with the commission until after the
deputy commissioner rendered her opinion and which did not
qualify as after-discovered evidence; and (2) finding that
claimant was unable to return to her pre-injury work as of
January 30, 1995. We conclude that the March 24 report should
not have been considered and therefore reverse the commission's
decision. 1
I.
On September 23, 1993, claimant sustained a compensable
injury by accident to the right side of her face. On November
16, 1993, claimant came under the care of Dr. Coleman, an oral
surgeon. On January 25, 1995, Dr. Coleman wrote to employer's
insurance carrier, releasing claimant to return to work as of
January 30, 1995. On February 1, 1995, based upon this report,
employer filed a change in condition application requesting that
the commission terminate claimant's compensation benefits as of
January 30, 1995.
On February 27, 1995, the deputy commissioner wrote to the
parties informing them that the case had been selected for an
on-the-record determination. The deputy commissioner directed
the parties to submit position statements by March 17 and to
submit all evidence by March 27, after which she would close the 1 We find no merit in claimant's argument that employer failed to preserve its right to appeal the commission's decision to consider Dr. Coleman's March 24, 1995 report.
2 record. On March 16 claimant's counsel wrote to the deputy
commissioner and requested a continuance on the grounds that Dr.
Coleman, who had examined claimant again that day, would be out
of town until March 20 and therefore could not prepare a report
until after that date. Employer objected to claimant's request
for a continuance. The deputy commissioner did not respond to
claimant's request.
On March 24, 1995, Dr. Coleman rendered a report stating
that he prematurely released claimant to return to work and that
he was referring her for a neurological evaluation. Claimant's
counsel filed this report with the commission on April 14, 1995,
seven days after the deputy commissioner rendered her opinion.
The record does not reflect when claimant's counsel sent the
report to the commission. On April 7, 1995, the deputy commissioner rendered her
decision, granting employer's application based upon Dr.
Coleman's January 25 report. On review, a majority of the
commission considered Dr. Coleman's March 24 report and reversed
the deputy commissioner's decision. The commission found that
"it would be unjust to deprive the claimant of compensation for a
period during which the evidence is uncontradicted that she was
disabled." The commission also noted that had the deputy
commissioner granted claimant's request for a continuance until
she received Dr. Coleman's letter, the evidence clearly would
have shown that claimant was unable to perform the duties of her
3 pre-injury job.
Commissioner Tarr dissented, finding that the commission
improperly considered the March 24 report because it was not part
of the deputy commissioner's record and it did not qualify as
after-discovered evidence. He noted that claimant failed to
provide any explanation for why the March 24 report, which was
issued by Dr. Coleman before the record closed on March 27, 1995,
was not filed with the commission before April 14, 1995.
Commissioner Tarr found that the majority's opinion ignored the
mandate of Rule 3:3 of the Rules of the Workers' Compensation
Commission. II.
"[A] rule when adopted pursuant to rule-making authority has
the same force as a statute." Graham v. Peoples Life Ins. Co., 7
Va. App. 61, 72, 372 S.E.2d 161, 168 (1988) (reh'g en banc). The
General Assembly has authorized the commission to "make rules and
regulations for carrying out the provisions of this title." Code
§ 65.2-201. "The adoption of such rules is a legislative act,
and the enactment is binding and law upon the parties and the
Commission as well." Graham, 7 Va. App. at 72, 372 S.E.2d at
168. Rule 3:3 provides as follows: No new evidence may be introduced by a party at the time of review except upon agreement of the parties. A petition to reopen or receive after- discovered evidence may be considered only upon request for review. A petition to reopen the record for additional evidence will be favorably acted upon by the full Commission only when it appears to the Commission that such course is absolutely necessary and advisable and
4 also when the party requesting the same is able to conform to the rules prevailing in the courts of this State for the introduction of after-discovered evidence.
In Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 327,
328-29, 338 S.E.2d 352, 353 (1986), we held that in the absence
of a formal petition requesting the reopening of the case and the
taking of additional testimony, the commission's rules preclude
it from considering on review additional evidence or medical
reports that were not available to the deputy commissioner. A
claimant's discovery after the deputy commissioner's opinion that
certain medical reports were omitted does not constitute a basis
on which to reopen the record. Failure to obtain medical records
that were available and known does not constitute due diligence. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401
S.E.2d 200, 207 (1991).
Here, claimant did not present Dr. Coleman's March 24 report
to the deputy commissioner before the record closed on March 27.
Claimant also did not seek consideration of this report on
review as after-discovered evidence. Moreover, Dr. Coleman's
March 24 report did not qualify as after-discovered evidence. No
evidence showed that claimant obtained the March 24 report after
the record closed on March 27 or that the report could not have
been obtained prior to the record closing through the exercise of
reasonable diligence. See Williams v. Peoples Life Ins. Co., 19
Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).
As claimant did not file a petition to reopen the record and
5 the commission did not qualify the report as after-discovered
evidence, the commission violated Rule 3:3 by considering the
March 24 report for the first time on review. This rule "assures
an opposing party the opportunity to rebut additional testimony
introduced after the hearing of a case. It also supports
finality in the decision making process." Charcoal Hearth, 1 Va.
App. at 329, 338 S.E.2d at 353. Considering a report filed after
the record closed without insisting upon compliance with the
commission's own rule is error. Id.
We recognize, as did the full commission, that the deputy
commissioner did not respond to claimant's request for a
continuance. However, the continuance was not necessary once Dr.
Coleman rendered his report on March 24, three days before the
record closed. Claimant offered no explanation as to why she
could not have timely filed this report. Moreover, claimant did
not explain why the report was not filed with the commission
until April 14, 1995, one week after the deputy commissioner
rendered her decision. Claimant had ample opportunity to file
Dr. Coleman's March 24 report before the deputy commissioner
rendered her opinion, but she failed to do so for unexplained
reasons. The full commission, faced with the requirements of
Rule 3:3, had no authority to consider the report.
Accordingly, we reverse the commission's decision.
Reversed.
6 Annunziata, J., dissenting.
I agree with the majority that the commission could not
consider the March 24 report issued by Dr. Coleman in reaching
its decision in this case. However, in the proper exercise of
its discretion, the commission found the deputy commissioner
should have granted claimant's request for a continuance for the
purpose of receiving the report. Thus, I would remand the matter
to the commission with instructions to remand the case to the
deputy commissioner for consideration of Dr. Coleman's March 24
report.