COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
GEORGIA-PACIFIC CORPORATION MEMORANDUM OPINION * BY v. Record No. 0123-98-1 JUDGE ROSEMARIE ANNUNZIATA AUGUST 4, 1998 RICKY A. DAVIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Sands, Anderson, Marks & Miller, on brief), for appellant. William R. Keown (Beddow, Marley, Trexler & Fitzhugh, on brief), for appellee.
Georgia-Pacific Corporation (employer) appeals the
affirmation of the deputy commissioner's award to Ricky Davis
(claimant) by the Workers' Compensation Commission. Employer
contends that the deputy commissioner erred in refusing its
request for a continuance, and in awarding continuing temporary
total disability payments.
Prior to his injury, claimant drove a truck for employer,
and earned an average weekly wage of $384. He was required to
stop up to ten times per shift and lift a tarpaulin over the bed
of the truck. On October 25, 1990, claimant sustained a back
injury in an accident while working for the employer. As a
result of his injury, claimant received various periods of
disability benefits.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On May 7, 1996, claimant filed a change in condition
application requesting temporary total disability benefits for
the period of March 24 through 28, 1996. Employer voluntarily
paid the benefits. Claimant filed an amendment to his
application on June 18, 1996 requesting temporary total
disability (TTD) benefits from April 19, 1996 through present and
continuing thereafter. Claimant again amended his application on
August 12, 1996 to include a claim for temporary partial
disability (TPD) benefits from June 8 to present and continuing
thereafter. On October 25, 1996, a claims examiner for the Commonwealth
requested employer to submit its position regarding the amended
claims. Employer replied on December 5 that it had been trying
to obtain information and was awaiting the appointment of new
counsel for Davis. After receiving the letter from employer, the
claims examiner informed employer and claimant that the
commission was ready to proceed with the hearing upon receipt of
sufficient medical evidence.
Employer requested the production of documents and
interrogatories on January 20, 1997. In a letter dated February
13, employer moved to dismiss for failure to comply with
discovery, moved to compel discovery, and requested a
continuance. Claimant responded that he had only received the
discovery requests on February 14, and opposed the continuance.
On February 19, the deputy commissioner denied the motion to
2 dismiss and continuance, but granted the motion to compel
discovery.
On February 25, 1997, claimant again amended his
application, requesting TTD benefits for the period April 19
through April 23, 1996 and permanent partial disability (PPD)
benefits from April 24 to present and continuing. Employer
received the February 25th amendment and discovery responses on
February 28th. Citing prejudice due to the delay in discovery,
employer requested a continuance. Claimant again amended his
application on March 3, claiming TTD benefits for the period
April 19 through June 2, 1996 and TPD benefits from June 3, 1996
to present and continuing. On March 3, 1997, after receiving both employer's request
for continuance and claimant's most recent amendment, the deputy
commissioner denied employer's request for a continuance. The
deputy commissioner noted that the benefits claimant sought under
the most recent amendment were essentially the same as those
sought in the original May 7, 1996 petition, as amended on June
11, 1996, and August 12, 1996. The deputy commissioner also
cited employer's delay in beginning discovery as a basis for
denying the continuance. The hearing took place as scheduled on
March 5, 1997.
The deputy commissioner found that claimant had made an
adequate effort to market his remaining work capacity, as he had
found adequate employment, although at less than his preinjury
3 wage, and was continuing to look for work at higher wages. The
deputy commissioner awarded claimant TTD benefits through June 2,
1996, TPD benefits for various periods between June 3, 1996 and
the hearing, based on the wages at each job, and continuing TPD
benefits based on claimant's current employment.
On review, the commission held that the deputy commissioner
erred in finding that employer had delayed in beginning
discovery, and abused his discretion in failing to grant a
continuance. The commission held, however, that employer was not
prejudiced by the failure to grant a continuance because employer
knew the substance of the claim since June 1996, claimant
testified credibly to his efforts at finding employment, and
claimant introduced objective verification of his employment.
The commission affirmed the deputy commissioner's finding that
claimant had continuing disability related to his compensable
injury. The commission also affirmed the deputy commissioner's
finding that claimant had sufficiently marketed his residual work
capacity, and further found that claimant's progression of
employment showed that he had fully marketed his remaining
capacity although he had not yet found work at his preinjury
wage. I.
Due Process
Employer asserts that by denying its request for a
continuance, the deputy commissioner violated its right to due
4 process. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection. The notice must be of such nature as reasonably to convey the required information, . . . and it must afford a reasonable time for those interested to make their appearance, . . . [b]ut if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied."
Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d
723, 726 (1980) (quoting Mullane v. Central Hanover Trust Co.,
339 U.S. 306, 314-15 (1950)). "'Procedural due process has been
said to require that before an individual is deprived of any
significant property interest he be granted an opportunity, at a
meaningful time in a meaningful manner, for a hearing appropriate
to the nature of the case.'" Williams v. Virginia Elec. & Power
Co., 18 Va. App. 569, 576-77, 445 S.E.2d 693, 698 (quoting James v. Arlington Bd. of Supervisors, 226 Va. 284, 289-90, 307 S.E.2d
900, 903 (1983)). While the requirements in administrative
proceedings may be more relaxed, "the commission must use
procedures that 'afford the parties minimal due process
safeguards.'" WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227,
494 S.E.2d 147
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
GEORGIA-PACIFIC CORPORATION MEMORANDUM OPINION * BY v. Record No. 0123-98-1 JUDGE ROSEMARIE ANNUNZIATA AUGUST 4, 1998 RICKY A. DAVIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Sands, Anderson, Marks & Miller, on brief), for appellant. William R. Keown (Beddow, Marley, Trexler & Fitzhugh, on brief), for appellee.
Georgia-Pacific Corporation (employer) appeals the
affirmation of the deputy commissioner's award to Ricky Davis
(claimant) by the Workers' Compensation Commission. Employer
contends that the deputy commissioner erred in refusing its
request for a continuance, and in awarding continuing temporary
total disability payments.
Prior to his injury, claimant drove a truck for employer,
and earned an average weekly wage of $384. He was required to
stop up to ten times per shift and lift a tarpaulin over the bed
of the truck. On October 25, 1990, claimant sustained a back
injury in an accident while working for the employer. As a
result of his injury, claimant received various periods of
disability benefits.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On May 7, 1996, claimant filed a change in condition
application requesting temporary total disability benefits for
the period of March 24 through 28, 1996. Employer voluntarily
paid the benefits. Claimant filed an amendment to his
application on June 18, 1996 requesting temporary total
disability (TTD) benefits from April 19, 1996 through present and
continuing thereafter. Claimant again amended his application on
August 12, 1996 to include a claim for temporary partial
disability (TPD) benefits from June 8 to present and continuing
thereafter. On October 25, 1996, a claims examiner for the Commonwealth
requested employer to submit its position regarding the amended
claims. Employer replied on December 5 that it had been trying
to obtain information and was awaiting the appointment of new
counsel for Davis. After receiving the letter from employer, the
claims examiner informed employer and claimant that the
commission was ready to proceed with the hearing upon receipt of
sufficient medical evidence.
Employer requested the production of documents and
interrogatories on January 20, 1997. In a letter dated February
13, employer moved to dismiss for failure to comply with
discovery, moved to compel discovery, and requested a
continuance. Claimant responded that he had only received the
discovery requests on February 14, and opposed the continuance.
On February 19, the deputy commissioner denied the motion to
2 dismiss and continuance, but granted the motion to compel
discovery.
On February 25, 1997, claimant again amended his
application, requesting TTD benefits for the period April 19
through April 23, 1996 and permanent partial disability (PPD)
benefits from April 24 to present and continuing. Employer
received the February 25th amendment and discovery responses on
February 28th. Citing prejudice due to the delay in discovery,
employer requested a continuance. Claimant again amended his
application on March 3, claiming TTD benefits for the period
April 19 through June 2, 1996 and TPD benefits from June 3, 1996
to present and continuing. On March 3, 1997, after receiving both employer's request
for continuance and claimant's most recent amendment, the deputy
commissioner denied employer's request for a continuance. The
deputy commissioner noted that the benefits claimant sought under
the most recent amendment were essentially the same as those
sought in the original May 7, 1996 petition, as amended on June
11, 1996, and August 12, 1996. The deputy commissioner also
cited employer's delay in beginning discovery as a basis for
denying the continuance. The hearing took place as scheduled on
March 5, 1997.
The deputy commissioner found that claimant had made an
adequate effort to market his remaining work capacity, as he had
found adequate employment, although at less than his preinjury
3 wage, and was continuing to look for work at higher wages. The
deputy commissioner awarded claimant TTD benefits through June 2,
1996, TPD benefits for various periods between June 3, 1996 and
the hearing, based on the wages at each job, and continuing TPD
benefits based on claimant's current employment.
On review, the commission held that the deputy commissioner
erred in finding that employer had delayed in beginning
discovery, and abused his discretion in failing to grant a
continuance. The commission held, however, that employer was not
prejudiced by the failure to grant a continuance because employer
knew the substance of the claim since June 1996, claimant
testified credibly to his efforts at finding employment, and
claimant introduced objective verification of his employment.
The commission affirmed the deputy commissioner's finding that
claimant had continuing disability related to his compensable
injury. The commission also affirmed the deputy commissioner's
finding that claimant had sufficiently marketed his residual work
capacity, and further found that claimant's progression of
employment showed that he had fully marketed his remaining
capacity although he had not yet found work at his preinjury
wage. I.
Due Process
Employer asserts that by denying its request for a
continuance, the deputy commissioner violated its right to due
4 process. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection. The notice must be of such nature as reasonably to convey the required information, . . . and it must afford a reasonable time for those interested to make their appearance, . . . [b]ut if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied."
Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d
723, 726 (1980) (quoting Mullane v. Central Hanover Trust Co.,
339 U.S. 306, 314-15 (1950)). "'Procedural due process has been
said to require that before an individual is deprived of any
significant property interest he be granted an opportunity, at a
meaningful time in a meaningful manner, for a hearing appropriate
to the nature of the case.'" Williams v. Virginia Elec. & Power
Co., 18 Va. App. 569, 576-77, 445 S.E.2d 693, 698 (quoting James v. Arlington Bd. of Supervisors, 226 Va. 284, 289-90, 307 S.E.2d
900, 903 (1983)). While the requirements in administrative
proceedings may be more relaxed, "the commission must use
procedures that 'afford the parties minimal due process
safeguards.'" WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227,
494 S.E.2d 147, 150 (1997) (quoting Sergio's Pizza v. Soncini, 1
Va. App. 370, 376, 339 S.E.2d 204, 207 (1986)).
On January 20, 1997, employer propounded discovery requests
5 to claimant; claimant did not respond by the February 10 due
date. The commissioner granted a motion to compel discovery on
February 19, 1997, and ordered that claimant respond within ten
days. Claimant filed his discovery responses on February 28,
1997. Thus, employer had the discovery responses two working
days prior to the March 5, 1997 hearing. The commission held
that the deputy commissioner abused his discretion in failing to
grant a continuance to allow employer to more fully examine the
responses. A limited period in which to examine the responses to
discovery does not, in itself, constitute a violation of due
process. In the context of an amendment of a claim at a hearing
or on review, employer must show that it was prejudiced by the
commission's action in order to show a violation of due process.
See, e.g., Cardosa, 26 Va. App. at 227-28, 494 S.E.2d at 150-51
(citing cases). A litigant must also demonstrate prejudice to
establish a violation of due process from the denial of a
continuance. See Doe v. Doe, 15 Va. App. 242, 245-46, 421 S.E.2d
913, 915-16 (1992) (finding prejudice to party's due process
rights from failure to grant a continuance); Moreno v.
Commonwealth, 10 Va. App. 408, 419, 392 S.E.2d 836, 843-44 (1990)
(holding that failure to grant a longer continuance following
late discovery disclosure did not violate defendant's due process
rights because asserted prejudice was "conjectural"). We
conclude, therefore, that employer must show prejudice from the
6 deputy commissioner's denial of the continuance in order to
demonstrate its due process rights were violated.
Although employer propounds several scenarios evincing
prejudice, the record does not support its assertions. Employer
made no attempt to demonstrate after the hearing that, if the
deputy commissioner had granted a continuance, the delay would
have yielded additional evidence. Employer does not allege that
additional evidence existed, but merely states that it would have
had additional time to look for evidence if the deputy
commissioner had granted a continuance. Employer's
unsubstantiated, hypothetical scenarios fail to demonstrate that
it was prejudiced by the deputy commissioner's failure to grant a
continuance. We therefore hold that the deputy commissioner did
not deny appellant due process, and affirm the decision of the
commission on this issue. II.
Continuing TPD Benefits
Employer contends that the commission erred in affirming the
deputy commissioner's award of continuing TPD benefits.
Specifically, employer argues that the commission erred in
affirming the deputy commissioner's findings that claimant
possessed a continuing disability and that claimant had fully
marketed his remaining work capacity. We view the evidence in
the light most favorable to claimant, the party prevailing in the
commission. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
7 211, 212, 390 S.E.2d 788, 788 (1990) (citing Crisp v. Brown's
Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916,
916 (1986)).
The standard of review applicable to the commission's
findings of fact was succinctly stated in Ford Motor Co. v. Hunt,
26 Va. App. 231, 236, 494 S.E.2d 152, 154-55 (1997) (quoting
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983)): "We do not retry the facts before the Commission nor do we review the weight, preponderance of the evidence, or the credibility of witnesses. If there is evidence or reasonable inference that can be drawn from the evidence to support the Commission's findings, they will not be disturbed by this Court on appeal, even though there is evidence in the record to support contrary findings of fact."
The commission's interpretation of medical evidence, as well as
the commission's finding of reasonable marketing of remaining
work capacity, are reviewed under this standard. Ford, 26 Va.
App. at 236, 239, 494 S.E.2d at 155-56 (citing Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556
(1985)).
A.
Continuing Disability
Employer argues that the evidence does not support the
commission's finding of continuing disability. We hold that the
evidence supports the commission's finding that claimant suffered
from a continuing disability.
8 On March 3, 1996, claimant's physician, Dr. Mark deBlois,
noted that claimant "is capable of working, but the question is
going to be at what level he can actually function [because] [i]t
sounds like heavy duty might not be possible." On April 23,
1996, deBlois concluded that "at this point we've tried to get
[claimant] back to work and I don't think he can do it." He
continued, "I think he [is] capable of a light work category, but
he won't be able to drive significant distances." Claimant's
last visit to deBlois occurred on September 12, 1996. In his
notes of the visit, deBlois stated that claimant continued to
have trouble driving, and there is no new injury causing the back
pain. DeBlois recommended that employer retrain claimant for
another position, from which the commission could reasonably
infer that claimant was permanently unable to perform his driving
duties. Approximately one week before the hearing, in a letter
dated February 27, 1997, deBlois stated that "[b]ased on
[claimant's] history and physical exam, I would rate him as a
Category 2 Permanent/Partial Disability . . . which would equate
to a 5 percent permanent/partial disability." This evidence
supports the finding of the commission. Employer's arguments that the commission applied a
presumption of continuing disability and that the commission
excused claimant from his burden of proof are without merit. The
opinions of the deputy commissioner and commission contain no
such presumption, and the evidence supports the commission's
9 decision on the facts without the employment of any presumption.
Similarly, employer's argument under Massie v. Firmstone, 134
Va. 450, 462, 114 S.E. 652, 655-56 (1922), is misplaced. The
evidence fully supports the decision of the commission, and the
commission did not impermissibly allow claimant to rise above his
own testimony.
10 B.
Marketing of Remaining Work Capacity
Employer contends that claimant unreasonably limited his job
search, and failed to prove that he was earning the wages he was
capable of earning. We disagree, and hold that the commission's
finding that claimant had reasonably marketed his remaining work
capacity is supported by the evidence.
"In order to continue to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a
job-related accident must market his remaining capacity to work."
Herbert Bros. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283,
284 (1992) (citing, inter alia, National Linen Serv. v. McGuinn,
8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989)). "What
constitutes a reasonable marketing effort depends upon the facts
and circumstances of each case." Greif Companies (GENESCO) v.
Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). We have
explained relevant factors in the determination of whether a
marketing effort is reasonable: (1) the nature and extent of employee's disability; (2) the employee's training, age, experience, and education; (3) the nature and extent of employee's job search; (4) the employee's intent in conducting his job search; (5) the availability of jobs in the area suitable for the employee, considering his disability; and (6) any other matter affecting employee's capacity to find suitable employment.
National Linen, 8 Va. App. at 272, 380 S.E.2d at 34. "[T]he mere
fact that the employee obtained a new job, where the pay is
11 substantially less than that received at the old job, is,
standing alone, insufficient proof of making a reasonable effort
to market one's remaining work capacity." Id. at 268, 380 S.E.2d
at 32.
The only training claimant acquired beyond high school was
attending Virginia Tractor Trailer Training School, and he can no
longer use that training because of his back injury. Since
employer terminated claimant, claimant has interviewed for
seventeen positions. Following his tenure with employer as a
truck driver, claimant held jobs with three different
organizations. Claimant worked as a stock clerk at Food Lion
between June 3 and June 15, 1996, at $5.50 per hour. Claimant
worked for TCB Grounds Management between June 17 and November 1,
1996 at $5.50-$5.75 per hour. Claimant began to work for his
current employer, Chesterfield County, as a grounds maintenance
worker on November 4, 1996, at $6.59 per hour. On February 8,
1997, claimant began working as an equipment operator at $8.01
per hour. Each of claimant's positions has paid a progressively higher
wage. At claimant's current place of employment, he has received
a promotion, and is working at his highest wage level since
working for employer. The evidence supports the finding of the
commission that appellant reasonably marketed his remaining work
capacity. Affirmed.