Elaine Asanakis v. Ice Follies & Holiday On Ice, et

• Court: Court of Appeals of Virginia
• Decided: March 10, 1998
• Docket: 2337974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

ELAINE ASANAKIS MEMORANDUM OPINION * v. Record No. 2337-97-4 PER CURIAM MARCH 10, 1998 ICE FOLLIES & HOLIDAY ON ICE, INC. AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Craig A. Brown; Ashcraft & Gerel, on brief), for appellant.

(Matthew W. Broughton; Monica L. Taylor; Gentry, Locke, Rakes & Moore, on brief), for appellees.

Elaine Asanakis (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that (1)

absent a request for review, the deputy commissioner did not have

jurisdiction to vacate her June 24, 1997 order dismissing

claimant's claim for benefits after the twenty-day period for

requesting review had expired; and (2) the sanction of dismissal

without prejudice was proper. 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.

On appeal, we view the evidence in the light most favorable

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

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

So viewed, the evidence showed that claimant filed her claim

on February 13, 1997. On March 25, 1997, employer forwarded

interrogatories to claimant, along with a medical release

authorization for claimant to sign to enable employer to obtain

claimant's foreign medical records. As of April 23, 1997,

claimant had not agreed to sign the medical release authorization

form nor had she filed answers to employer's interrogatories. As

a result, the deputy commissioner continued the hearing scheduled

for May 23, 1997, rescheduling it for July 3, 1997. On June 2, 1997, employer notified the deputy commissioner

that claimant had still not provided a signed medical release

authorization nor had she responded to employer's

interrogatories. Employer also advised the commission that it

had scheduled claimant's deposition for June 23, 1997. In a June

6, 1997 letter, the deputy commissioner continued the hearing

again "[d]ue to the claimant's failure to provide Answers to

Interrogatories in a timely manner . . . ." The deputy

commissioner ordered claimant to provide those answers and a

medical release authorization by June 20, 1997, stating that

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

hearing was rescheduled for August 12, 1997.

Claimant did not comply with the June 6, 1997 order nor did

she respond to the commission in any manner explaining her

omissions. In a letter dated June 23, 1997, employer asked the

2 commission to dismiss the claim. On June 24, 1997, the deputy

commissioner entered an order dismissing the claim for benefits

"without prejudice" due to "claimant's failure to file Answers to

Interrogatories and Medical Release Authorization in a timely

manner . . . ."

On July 1, 1997, claimant's counsel asked the deputy

commissioner to vacate her June 24, 1997 order. Claimant's

counsel did not dispute the conclusions that claimant had failed

to respond to discovery and had failed to appear for her

deposition. Claimant did not request review of the deputy

commissioner's June 24, 1997 order within twenty days of its

entry. On July 21, 1997, the deputy commissioner vacated her

June 24, 1997 order. Employer moved that the deputy commissioner

reconsider her decision and simultaneously filed a request for

review before the full commission. I.

In holding that the deputy commissioner was without

jurisdiction to reconsider, amend, or vacate her June 24, 1997

dismissal order, the commission found as follows: [C]laimant filed her Claim for Benefits just two days short of two years subsequent to her accident. From that time forward, she was represented by counsel. Although her counsel has advised the Commission that she is sincere about her claim, nevertheless she failed to respond to an order of the Commission to answer interrogatories, to execute a medical release authorization, and to appear at a deposition. While we recognize that the nature of her work may cause the claimant to travel extensively, she cannot at the same time show complete

3 disregard for the orders of the Commission and simultaneously expect relief from its procedural rules. We find, therefore, that . . . [the June 24, 1997 dismissal] order is still valid. The claimant's Claim for Benefits is, therefore, DISMISSED without prejudice pursuant to the June 24, 1997, order.

Code § 65.2-705(A) requires that an application for review

of a deputy commissioner's decision be filed with the commission

within twenty days from the date of entry of the award. "'Absent

. . . fraud or mistake . . . , the decisions of the commission or

its deputy commissioners from which no party seeks timely review

are binding upon the commission.'" Sovran Fin. Corp. v. Nanney,

12 Va. App. 1156, 1160, 408 S.E.2d 266, 269 (1991) (quoting K & L

Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302

(1985)). Thus, absent a timely review request or an allegation

of fraud or mistake in the procurement of an award, the

commission loses jurisdiction over an award after twenty days

from the date of that award. See McCarthy Elec. Co. v. Foster,

17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993).

In this case, the undisputed evidence showed that claimant

did not request review of the deputy commissioner's June 24, 1997

order before the twenty-day period expired. In addition,

claimant did not allege fraud or mistake in the procurement of

the June 24, 1997 order. Accordingly, credible evidence supports

the commission's finding that the deputy commissioner did not

have jurisdiction to vacate her June 24, 1997 dismissal order on

July 21, 1997, more than twenty days after entry of that order.

4 II.

The Rules of the Virginia Supreme Court allow trial courts

"'broad discretion in determining what sanction, if any, will be

imposed upon a litigant who fails to timely respond to

discovery.'" Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278,

430 S.E.2d 712, 717 (1993) (quoting Woodbury v. Courtney, 239 Va.

651, 654, 391 S.E.2d 293, 295 (1990)). These Rules specifically

allow a trial court to strike a party's claims or defenses for

failure to comply with a discovery order. See id. Moreover,

"the commission has the same authority as a court to punish for

noncompliance with its discovery orders." Id.

Here, credible evidence proved that employer diligently

pursued discovery for months, to which claimant made no response.

In addition, claimant indisputably violated the commission's

June 6, 1997 order without any explanation. Based upon this

record, we cannot say that the commission abused its discretion

in exercising its power to punish claimant for violating its

discovery order by dismissing her claim for benefits without

prejudice.

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