Ivory Johnson Martin v. C&J Clark America Inc. etal

• Court: Court of Appeals of Virginia
• Decided: December 29, 1995
• Docket: 0634952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick Argued at Richmond, Virginia

IVORY JOHNSON MARTIN

v. Record No. 0634-95-2 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON C & J CLARK AMERICA, INC., ET AL. DECEMBER 29, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Robert L. Flax (Flax, Embrey & Stout, on brief), for appellant. Daniel E. Lynch (Williams & Pierce, on brief), for appellees.

Ivory Johnson Martin appeals from the decision of the

Workers' Compensation Commission dismissing his claim with

prejudice. We find that the record does not show that the

commission abused its discretion, and we therefore affirm.

The claimant sustained a compensable injury by accident on

August 16, 1990. He received an award for disability benefits

from the full commission on February 16, 1993.

On May 3, 1993, claimant filed an application for a change

of physicians, payment of medical expenses, and a cost of living

adjustment. Claimant failed to appear at the hearing on that

application, and his claim was dismissed without prejudice on

January 13, 1994. He refiled the claim on January 19, 1994, and

a hearing was scheduled for April 19, 1994. At the claimant's

request, the hearing was continued, and rescheduled for September * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 20, 1994.

Until this point, the claimant had prosecuted his claim pro

se. He retained counsel prior to the rescheduled hearing. On

September 13, 1994, counsel requested a continuance so that he

could prepare for the hearing and submit interrogatories. On

September 15, Commissioner Joyner denied the continuance on the

ground that the case had been pending on the docket for over

eight months. On September 19, counsel for claimant sent a letter to the

commission office asking that the application for a hearing be

withdrawn and that the hearing be canceled. Commissioner

Joyner's office by telephone informed all counsel that if the

claim was not withdrawn and the claimant failed to appear at the

hearing, the claim would be dismissed with prejudice. On

September 20, counsel for claimant claims to have sent two

letters to the commission office. The letters indicate that they

were sent by both mail and fax. One states that the claim was

being withdrawn; the other indicates that the "application" was

being withdrawn. The letter withdrawing the claim does not

indicate the time it was faxed or that it was received by the

commission. The hearing was scheduled to begin at 2:00 p.m. in

Danville, Virginia. The commission has no record of receiving

the fax. The parties agree that prior to the hearing, counsel

for the claimant informed employer's counsel by telephone that

the claim had been withdrawn. Employer's counsel states that he

contacted Commissioner Joyner's office and was informed that the - 2 - claim had not yet been withdrawn. He therefore appeared at the

hearing, and Commissioner Joyner dismissed the claim with

prejudice. The full commission ruled that the claim was properly

dismissed for "abusing the hearing process."

The commission has the same authority as a court to punish

for noncompliance with its orders. See Jeff Coal, Inc. v.

Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993)

(discovery orders); Code § 65.2-202. In addition to its

statutory authority to impose 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. The commission has

the authority to adopt rules to carry out the provisions of the

Workers' Compensation Act. Code § 65.2-201(A).

Therefore, 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. Jeff Coal, 16 Va. App. at 277, 430

S.E.2d at 716. On this record we cannot find that the commission

abused its discretion.

Affirmed.

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