Russell Stover and TIG Premier Ins. v. Alexander

• Court: Court of Appeals of Virginia
• Decided: August 11, 1998
• Docket: 0045982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia

RUSSELL STOVER CANDIES AND TIG PREMIER INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0045-98-2 JUDGE NELSON T. OVERTON AUGUST 11, 1998 SARAH R. ALEXANDER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION S. Vernon Priddy, III (Patsy L. Mundy; Sands, Anderson, Marks & Miller, on briefs), for appellants.

Nora J. Miller (Watson & Nelson, on brief), for appellee.

Russell Stover Candies and TIG Premier Insurance Company

(employer) appeal the decision of the Workers' Compensation

Commission (commission) awarding a former employee, Sarah

Alexander (employee), temporary total and temporary partial

disability benefits for injuries resulting from an asthma attack

she suffered while at work. Employer asserts, inter alia, the commission erred when it failed to rule on a motion to dismiss

filed by employer pursuant to Rule 3.2 of the Rules of the

Virginia Workers' Compensation Commission. For the following

reasons we agree and remand.

Employee suffered an asthma attack as the result of smelling

bleach fumes at work. She filed a claim form No. 5 in the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Workers' Compensation Commission on May 21, 1996. Her claim was

heard before a deputy commissioner who denied her compensation.

She filed a request for review to the full commission on March

27, 1997. Pursuant to Rule 3.2 of the Rules of the Virginia

Workers' Compensation Commission, employee was ordered to file a

written statement in support of her review by May 23, 1997. Both

the record and the parties' briefs indicate employee never filed

a written statement. On June 2, 1997, employer moved the commission to dismiss

the request for review due to employee's failure to comply with

Rule 3.2. The commission never ruled on this motion. On

December 8, 1997, the commission reversed the deputy commissioner

and awarded employee benefits.

Rule 3.2 states:

The Commission will advise the parties of the schedule for filing brief written statements supporting their respective positions. The Statements shall address all errors assigned, with particular reference to those portions of the record which support a party's position.

Employee asserts the commission's refusal to address employer's

motion to dismiss is tantamount to the commission interpreting

Rule 3.2 to be directory, not mandatory. Yet the commission

seems to have adopted an opposite interpretation in previous

cases. See, e.g., Terry v. Coe, VWC File No. 1717916 [96 WC UNP

1717916] (May 30, 1996); Crusenberry v. Bristol Compressors, VWC File No. 1514104 [95 WC UNP 1514104] (Nov. 27, 1995) (issues not

- 2 - addressed in the written statements are waived and abandoned).

"'Because the [commission] promulgates these rules and has the

obligation and right to enforce them, we would prefer that it

have the first opportunity to construe its own rules.'" Arellano

v. Pam E. K's Donuts Shop, 26 Va. App. 478, 482-83, 495 S.E.2d

519, 521 (1998) (quoting Brushy Ridge Coal Co. v. Blevins, 6 Va.

App. 73, 78 n.2, 367 S.E.2d 204, 206 n.2 (1988)).

The record before us is absent information regarding the

commission's use of Rule 3.2 in this case. Such a void in the

record affords us no opportunity for meaningful review.

Therefore, we remand the case to the commission with instructions

to clarify its treatment of employer's motion to dismiss and its

interpretation of Rule 3.2. Remanded.

- 3 -