Clinch Valley Med. Ctr v. Johnnie S Hayes

• Court: Court of Appeals of Virginia
• Decided: December 19, 2000
• Docket: 0828003
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements Argued at Salem, Virginia

CLINCH VALLEY MEDICAL CENTER AND TRANSPORTATION INSURANCE COMPANY OPINION BY v. Record No. 0828-00-3 JUDGE RUDOLPH BUMGARDNER, III DECEMBER 19, 2000 JOHNNIE S. HAYES

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Ramesh Murthy (Lisa Frisina Clement; Penn, Stuart & Eskridge, on briefs), for appellants.

D. Edward Wise, Jr. (Arrington, Schelin & Herrell, P.C., on brief), for appellee.

Clinch Valley Medical Center appeals the continuation of an

award of benefits to Johnnie S. Hayes by the Workers'

Compensation Commission. The employer contends the commission

(1) acted without authority when it authorized a deputy

commissioner to sit with two commissioners to review a

termination of the award opinion and (2) erred when it found the

employer failed to prove the employee's condition was not

related to the work accident. We conclude the commission did

not err and affirm its decision.

The employee fell and hit the back of his head on concrete

stairs. The commission awarded benefits commencing October 31,

1998 pursuant to a memorandum of agreement. On June 23, 1999, the employer filed an application alleging the employee's

current condition was not related to the work accident. The

deputy commissioner granted the application and terminated

compensation. On a review of the record, a deputy commissioner

sat with two members of the commission. They concluded the

employer "failed to prove that the effects of the work accident

have fully dissipated, and that the [employee's] continuing

disability is due entirely to another cause" and reinstated the

employee's benefits. The employer filed a motion to reconsider

and argued a deputy could not sit in place of one of the three

members of the commission to hear the review.

The three members of the commission considered the motion

to reconsider and denied it unanimously. They reasoned the

commission was responsible for adjudicating all issues and

controversies relating to the Workers' Compensation Act. Code

§ 65.2-201(A). 1 The commission had the authority to make rules

and regulations for carrying out the Act. The commission could

appoint deputies as necessary to carry out its responsibilities

1 Code § 65.2-201. General duties and powers of the Commission. A. It shall be the duty of the Commission to administer this title and adjudicate issues and controversies relating thereto. The Commission shall make rules and regulations for carrying out the provisions of this title. B. The Commission may appoint deputies, bailiffs, and such other personnel as it may deem necessary for the purpose of carrying out the provisions of this title.

- 2 - under the Act, Code § 65.2-201(B), and deputies exercised such

powers and duties as delegated by the commission. Code

§ 65.2-203(A). 2

The commission explained the need to delegate deputy

commissioners to sit with members because of the expanding work

of the commission. The volume of cases, together with their

increasing complexity and length, had increased the demands on

the commission while the need for timely resolution of the cases

had remained constant. In addition to its adjudicatory

responsibilities, the commission noted that it had

responsibility for administering the Act and setting policy.

The employer argues Code § 65.2-705 3 limits the general

powers of the commission to delegate duties to deputies. A

2 Code § 65.2-203. Powers and duties of deputy commissioners and bailiffs. A. Deputy commissioners shall have the power to subpoena witnesses, administer oaths, take testimony and hear the parties at issue and their representatives and witnesses, decide the issues in a summary manner, and make an award carrying out the decision. Deputies may exercise other powers and perform any duties of the Commission delegated to them by the Commission. 3 Code § 65.2-705. Review of award; rehearing. A. If an application for review is made to the Commission within twenty days after receipt of notice of such award to be sent as provided in subsection A of § 65.2-704, the full Commission, except as provided in subsection B of § 65.2-704 and if the first hearing was not held before the

- 3 - deputy commissioner can sit in place of a commissioner but only

when the commission reviews a case by ore tenus hearing of the

parties, their representatives, and witnesses. The employer

contends a deputy commissioner may not sit when the review is a

review of the record without an appearance by the parties,

representatives, and witnesses.

The employer argues Code § 65.2-705(A) mandates a review by

the full commission, the three members acting jointly, with only

one exception. That exception is created by the phrase "to hear

a review" in Code § 65.2-704(B), which is incorporated by

reference. Code § 65.2-705(A) authorizes two methods for

review: "review the evidence," and "hear the parties at issue,

their representatives, and witnesses." The employer contends

the phrase "to hear a review" is a specific reference to the

second type of review and thus limits the exception to a review

of that sort. Thus, the employer concludes the chairman can

appoint a deputy only when the commission hears the parties at

issue.

full Commission, shall review the evidence or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives, and witnesses. The Commission shall make an award which, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, shall be filed with the record of the proceedings. A copy of the award shall be sent immediately to the parties at issue.

- 4 - Chapter 2 of the Workers' Compensation Act formulates the

commission and defines its powers and duties. It gives the

three members of the commission joint or collective

responsibility for administering the Act and adjudicating the

issues and controversies arising from it. Code § 65.2-201(A).

It gives the commission corporate authority to delegate powers

and duties to deputies to carry out its responsibilities. Code

§ 65.2-203(A). The commission acted under this authority when

it appointed a deputy to sit with two members of the commission

to review the termination of the award in this case.

Chapter 7 of the Act, entitled "Procedure in Connection

with Awards," outlines the procedures for hearing parties at

issue. It permits the full commission, a member, or a deputy to

make an initial award. Code § 65.2-704(B). 4 However, it forbids

4 Code § 65.2-704. Hearing; award or opinion by Commission. A. The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision. A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail. B. Any member of the Commission who hears the parties at issue and makes an award under the provisions of subsection A of this section shall not participate in a rehearing and review of such award provided under § 65.2-705. When a member is absent or is prohibited by the provisions of this subsection from sitting with the full Commission to hear a review, the Chairman

- 5 - an individual member, who made an award, to sit in review of

that award. When that occurs, the statute authorizes the

chairman to appoint a deputy to sit in place of the member

disqualified. The provision also authorizes the chairman to

appoint a deputy to sit in review if a member is absent.

Chapter 7 also outlines the procedure for reviewing an

award. It directs the full commission to hear appeals. Code

§ 65.2-705(A). It contemplates a review of the evidence

presented to the first ore tenus hearing or a review by a new

ore tenus hearing of the parties, their representatives, and

witnesses. The commission has discretion to chose which method

to use; it shall "review the evidence or, if deemed advisable,

. . . hear the parties at issue." Code § 65.2-705(A).

The procedural provisions of Chapter 7 do not limit the

powers granted to the full commission in Chapter 2. They

provide the means to constitute a three-person review body when

the commission could not act because the full complement of

three members did not exist. The procedures fill a void when

the commission would not be able to exercise its Chapter 2

powers. In one case, the full commission did not exist because

of absence, in the other because of disqualification. Code

§ 65.2-704(B) speaks to the chairman's authority. It empowers

the chairman, individually, to name a deputy to act with the two

shall appoint one of the deputies to sit with the other Commission members.

- 6 - members who are present and qualified. In granting the chairman

authority to act when the full commission would not be

available, the statute does not thereby limit the authority of

the full commission to act in other situations.

"It is a well settled principle of law that where two

statutes are in apparent conflict they should be so construed,

if reasonably possible, so as to allow both to stand and to give

force and effect to each." Kirkpatrick v. Board Of Supervisors,

146 Va. 113, 125, 136 S.E. 186, 190 (1926) (citation omitted).

"The doctrine that a special act should be construed as an

exception to the general law is not to be invoked unless the two

acts cannot be harmonized or reconciled in any other way." Id.

"Where two provisions are in potential conflict, it is this

Court's duty to construe those provisions in a manner which

would give full force and effect to both provisions." Cooper v.

Occoquan Land Dev. Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633

(1989) (citation omitted), rev'd on other grounds, 239 Va. 363,

389 S.E.2d 464 (1990). "It is a well established rule of

construction that full force and effect must be given to each

provision of statutory law." City of Richmond v. County Board

of Supervisors, 199 Va. 679, 685, 101 S.E.2d 641, 646 (1958).

There is no good reason to interpret the statute to permit

the chairman to appoint a deputy for the most complete and

formal type of review but to prohibit appointment for the less

involved, less intricate, review on the record. Similarly,

- 7 - there is no reason for the most involved review to lack an

employer representative if fairness demands such representation

and it is the reason for requiring review by members only. 5

Even if the phrase "to hear a review" is given the meaning

the employer urges, the statute would limit the chairman only

when faced with disqualification of a member who made the

initial award. As the phrase "to hear a review" appears in Code

§ 65.2-704(B), it does not modify both conditions under which

the chairman can act: a member being absent or being

prohibited. It does not apply to appointments of deputies when

a member is absent. The phrase "to hear a review" appears in

the prepositional phrase that modifies the passive verb "is

prohibited." The phrase does not modify the adjective "absent"

and accordingly cannot restrict its meaning. The chairman can

appoint a deputy for either type of review when absence creates

the need.

The phrase "to hear a review" as employed in Code

§ 65.2-704(B), refers to both methods of review, whether by

review of the evidence in the record or by physical appearance

before an ore tenus hearing by the tribunal. The verb "to hear"

5 The commission noted that Code § 65.2-200(D) requires the commission to consist of employee and employer representatives, but the commissioners only act in their representative capacity when establishing policy. When acting in an adjudicatory capacity, the commission members must be fair and impartial. They are subject to Canon 3 of the Canons of Judicial Conduct and the Judicial Inquiry and Review Commission. Code § 2.1-37.1.

- 8 - employs the same meaning used by the phrase "hearing in equity":

to adjudicate, to decide, or to examine judicially. It is not

used in the sense of perceiving by ear. See Gills v. Gills, 126

Va. 526, 541, 101 S.E. 900, 904 (1920).

The employer further maintains that even if a deputy

properly sat in this case, the commission acted improperly

because it provided no notice of the substitution or opportunity

to object. The employer argues the commission "overstepped its

statutory bounds under the framework established by the General

Assembly." There is no language in the statute requiring notice

to the parties or a hearing before the chairman appoints a

deputy to act for an absent commissioner. Code § 65.2-704(B).

Lastly, we consider the commission's decision that the

employer failed to prove the employee's current condition was

unrelated to the work accident. "Where . . . [a] causal

connection between an industrial accident and disability has

been established by the entry of an award, an employer has a

right to apply for termination of benefits upon an allegation

that the effects of the injury have fully dissipated and the

disability is the result of another cause." Celanese Fibers Co.

v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985). The

employer must prove the employee's current disability does not

result from the industrial accident by a preponderance of the

evidence. Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423

S.E.2d 214, 216 (1992). Causation is usually proven by medical

- 9 - evidence. See Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 570,

159 S.E.2d 633, 635 (1968).

Shortly after the employee's fall, he saw a neurologist

because of headaches. The neurologist diagnosed a

post-traumatic soft-tissue mass causing obstructive

hydrocephalus and referred the employee to Dr. John Jane, a

neurosurgeon. Dr. Jane inserted a shunt to allow drainage and

planned to remove the tumor later. The employee had continuing

complications and required surgery to relieve pressure from

subdural hematomas. Dr. Jane performed those procedures and

concluded the tumor, not the trauma from the fall, caused the

hydrocephalus and the subdural hematoma. Dr. Jane was not sure

when the tumor developed but felt it more likely that the tumor

did not pre-exist the trauma. The trauma brought on the

symptoms.

In January 1999, the employee sought a second opinion from

Dr. William C. Broaddus, also a neurosurgeon. The doctor

initially agreed with Dr. Jane's diagnosis, but after following

the employee for eight months, he changed his opinion. Dr.

Broaddus felt either the mass was not a tumor or it could have

existed for many years without posing a problem. Dr. Broaddus

concluded the fall caused the hydrocephalus because the employee

was healthy before the fall, the mass failed to grow in size,

the biopsy of the mass was inconclusive, and the ventricles had

- 10 - returned to normal. He believed the mass did not cause the

hydrocephalus though it may have pre-existed the fall.

The commission evaluated the conflicting medical evidence

and concluded that Dr. Jane's opinions and testimony were

internally inconsistent and "insufficient to prove the absence

of a continuing causal relationship between the work accident

and the claimant's present disability." It concluded the

claimant's "work accident accelerated the need for the surgical

condition of the hydrocephalus, and that the employer is

responsible for the side effects of this surgery." Olsten v.

Leftwich, 230 Va. 317, 319-20, 336 S.E.2d 893, 895 (1985); Dan

River, Inc. v. Turner, 3 Va. App. 592, 596, 352 S.E.2d 18, 20

(1987) (industrial accident that accelerates or aggravates a

pre-existing condition is compensable).

The commission resolves conflicts in the medical evidence,

and its decision when based upon credible evidence is binding on

this Court. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 439, 339 S.E.2d 570, 572 (1986). A determination of legal

causation is a factual finding that will not be disturbed on

appeal when it is supported by credible evidence.

Accordingly, we affirm the decision of the commission.

Affirmed.

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