Charles E. Rich v. Edwards Grain & Fertilizer, etc

• Court: Court of Appeals of Virginia
• Decided: October 3, 1995
• Docket: 2255941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

CHARLES E. RICH

v. Record No. 2255-94-1 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY EDWARDS GRAIN AND FERTILIZER, INC. OCTOBER 3, 1995 and VIRGINIA FARM BUREAU FIRE & CASUALTY INSURANCE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Robert J. MacBeth, Jr. (Rutter & Montagna, on brief), for appellant. Charles F. Midkiff (Ruth N. Carter; Midkiff & Hiner, P.C., on brief), for appellees.

Acting on application of Edwards Grain and Fertilizer, Inc.

and its insurer, Virginia Farm Bureau Fire & Casualty Insurance

(collectively referred to as employer), the Workers' Compensation

Commission (commission) concluded that Charles E. Rich (claimant)

had been released to his pre-injury employment and terminated the

related benefits. Claimant appeals, contending that the commission

erroneously denied his request for an evidentiary hearing and

challenging the sufficiency of the evidence to support its

findings. We affirm the decision of the commission.

The parties are conversant with the record, and we recite only

those facts necessary to our disposition of the appeal.

Claimant sustained a compensable injury on July 12, 1993, and

was awarded attendant benefits. On April 11, 1994, employer filed

an "Application for Hearing" which alleged that claimant had been

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. approved by his treating physician, Dr. Robert Singer, for return

to employment and sought termination of the award. By

correspondence dated May 4, 1994, the commission notified Herbert

L. Sebren, Jr., then claimant's counsel of record, and employer

that the application had been "selected" for "determination on the

record" and instructed "each side submit . . . a statement of . . .

position . . ." by May 23, 1994. The commission further advised

that written notice to the commission was required "within 10 days

of the date of this letter" if a party "believe[d] a trial-type

evidentiary hearing [was] necessary . . . ." Thereafter, on May 6, 1994, Mr. Sebren wrote the commission

that he "no longer" represented claimant. Subsequent

correspondence from Robert J. Macbeth, Jr. dated May 13, 1994,

advised the commission that he had been retained as claimant's

counsel and was accompanied by a related "power of attorney form,"

executed by claimant on April 11, 1994.

Upon receipt of employer's "statement of position," Mr.

MacBeth requested, by letter dated May 26, 1994, that the

application be referred for an "evidentiary hearing." However,

noting the previously imposed ten day limitation, a deputy

commissioner denied the motion, but allowed claimant ten additional

days within which to file a statement of position. Claimant

appealed this decision, and the commission affirmed, returning the

case to a deputy for an "on-the-record determination." 1 On review, 1 Claimant's request for reconsideration was denied by the commission.

- 2 - the deputy concluded that claimant was authorized by his physician

for return to pre-injury employment and terminated benefits, a

decision also affirmed by the commission.

It is well established that, "while procedures before the

. . . Commission must ensure that the parties are accorded due

process of law, the . . . Commission is afforded considerable

latitude in adapting the conduct of hearings to the circumstances

of the case." Kim v. Sportswear, 10 Va. App. 460, 470, 393 S.E.2d

418, 424 (1990); see Code § 65.2-201(A). The Rules of the Virginia

Workers' Compensation Commission provide that, "[a]t the request of

either party, or at the Commission's direction, contested issues

not resolved informally . . . will be referred for decision on the

record or evidentiary hearing." Rule 2. "When it appears that

there is no material fact in dispute as to any contested issue,

determination will proceed on the record." Rule 2.1. This

"expedited procedure" relates to the commissioner's "quasi-judicial

function" and is a proper exercise of its authority. Williams v. Virginia Elec. & Power Co., 18 Va. App. 569, 574, 445 S.E.2d 693,

696 (1994).

The instant record discloses that the commission initially

identified employer's application as a candidate for decision "on

the record" and notified the parties' counsel of record

accordingly. Thereafter, Mr. Sebren advised the commission that he

no longer represented claimant and, still later, Mr. MacBeth

notified the commission of his retention as counsel. The record

neither explains Mr. Sebren's delay in informing the commission of

- 3 - his release nor Mr. MacBeth's delay in advising of his

substitution. As the commission properly noted, "whether Mr.

Sebren ever advised the claimant [or Mr. MacBeth] that his client's

case had been selected for an on-the-record determination" was "a

matter entirely between attorney and client," and not the

responsibility of the commission.

Claimant was given ten days in which to request an evidentiary

hearing and to present evidence that such hearing was necessary.

However, claimant inexplicably allowed that time to expire without

acting to protect his interests. Moreover, nothing in the record

suggests that the application was inappropriate for on the record

review. Under such circumstances, the commission's action was

consistent with its rules and constitutionally sound. See id. at

578-79, 445 S.E.2d at 697.

Lastly, claimant argues that the record fails to establish

that Dr. Singer was sufficiently familiar with his employment to

properly release him for return to work.

Under familiar principles, we view the evidence in the light

most favorable to the prevailing party, employer in this instance. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990). Factual findings of the commission will be

upheld on appeal if supported by credible evidence. James v.

Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989); see Code § 65.2-706. "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."

- 4 - Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d

695, 698 (1988).

The commission may rely on an attending physician's

"unequivocal statement that [the claimant is] fully able to return

to unrestricted work and[, in] the absence of any medical evidence

to the contrary, the Commission [can] only conclude [that the

claimant is] able to return to unrestricted work . . . ." Mace v.

Merchants Delivery, 221 Va. 401, 403-04, 270 S.E.2d 717, 719

(1980). Thus, employer need not establish that the treating

physician was familiar with the physical requirements of the

claimant's employment under such circumstances. Here, although Dr. Singer's medical records do not include

claimant's job description, Dr. Singer noted that claimant's injury

occurred while "unloading wheat bags" and his related treatment of

claimant spanned nine months. Thereafter, Dr. Singer

unconditionally released claimant for return to "regular," as

opposed to "light," work. This evidence supports the inference

that Dr. Singer was aware of claimant's physical abilities in

relation to the requirements of his workplace and properly released

him to employment.

Accordingly, we affirm the decision of the commission. Affirmed.

- 5 -