Charles Wingate v. Assett Protection Team

• Court: Court of Appeals of Virginia
• Decided: October 5, 1999
• Docket: 2569984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

CHARLES WINGATE MEMORANDUM OPINION* v. Record No. 2569-98-4 PER CURIAM OCTOBER 5, 1999 ASSETT PROTECTION TEAM, INC. AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Charles R. Wingate, pro se, on briefs).

(Lisa A. Cay; Barbara T. Jones; Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellees.

The Workers' Compensation Commission dismissed Charles

Wingate's claim for benefits without prejudice because of his

failure to comply with a discovery order. This was the sole

issue before the commission when it rendered its decision.

Although Wingate discusses the merits of his claim in his

briefs, we address, as the issue on appeal, the correctness of

the commission's ruling. Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the commission's

decision. See Rule 5A:27.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. On appeal, we view the evidence in the light most favorable

to the prevailing party below. See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So

viewed, the record establishes that on June 1, 1998, Wingate

filed a claim for benefits alleging, alternatively, either an

accidental injury or the communication of an occupational

disease on March 16, 1998. In a July 1, 1998 letter to Wingate,

employer's attorney notified him of her intent to take his

discovery deposition. In the letter, employer's attorney

requested that Wingate contact her office within seven days to

arrange a mutually convenient date and time.

In a letter filed with the commission on July 6, 1998,

Wingate stated that, "I must refuse any communication and or

deposition unless required by Virginia law," and that, "My

resources make it almost impossible to come to Virginia." In

response, the employer filed a letter with the commission on

July 8, 1998, requesting that the commission order Wingate to

comply with her request to arrange his discovery deposition.

In a letter order dated July 13, 1998, the deputy

commissioner ordered Wingate "to submit to the telephonic

deposition within (14) fourteen days" and informed him that

"[f]ailure to do so will result in dismissal of your claim."

The matter was scheduled for hearing on September 11, 1998.

In a letter, filed with the commission on July 27, 1998,

employer's attorney moved for dismissal of Wingate's claim on

- 2 - the ground that Wingate had refused to submit to the telephonic

deposition. Wingate responded by filing with the commission on

July 29, 1998, a copy of a letter he wrote to employer's

attorney. In that letter, Wingate stated that he did not have

the means to hire an attorney and that, even if he hired an

attorney, a telephonic deposition would not allow "fair and just

representation." Wingate also invoked the protections of the

civil rights provisions of the United States Constitution, the

Civil Rights Act of 1964, and the Americans with Disabilities

Act.

On July 29, 1998, the deputy commissioner entered an order

dismissing the pending claim without prejudice due to Wingate's

failure to submit to the deposition in a timely manner. On

review, the full commission affirmed the deputy commissioner's

decision.

The commission has the authority to adopt rules to carry

out the provisions of the Workers' Compensation Act. See Code

§ 65.2-201(A). Rule 1.8(G) of the Rules of the Virginia

Workers' Compensation Commission allows a party to take the

deposition testimony of any person, including another party,

after a claim or application has been filed. "The commission

has the same authority as a court to punish for noncompliance

with its discovery orders." Jeff Coal, Inc. v. Phillips, 16 Va.

App. 271, 278, 430 S.E.2d 712, 717 (1993). See also Code

§ 65.2-202. In addition to its statutory authority to impose

- 3 - sanctions, the commission's rules authorize the commission to

impose certain sanctions, including dismissal of a claim or

application. See Rule 1.12, Rules of the Virginia Workers'

Compensation Commission.

Thus, the commission has the authority to impose the

sanction of dismissal in appropriate cases. The decision to

sanction a party for disobedience to an order is committed to

the commission's discretion. See Jeff Coal, 16 Va. App. at 277,

430 S.E.2d at 716. Based upon this record, we cannot find that

the commission abused its discretion in dismissing Wingate's

claim without prejudice.

For these reasons, we affirm the commission's decision.

Affirmed.

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