USAir, Inc. v. James B. Hyman

• Court: Court of Appeals of Virginia
• Decided: April 30, 1996
• Docket: 2518954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

USAIR, INC. MEMORANDUM OPINION * v. Record No. 2518-95-4 PER CURIAM APRIL 30, 1996 JAMES B. HYMAN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Michael N. Salveson; Hunton & Williams, on brief), for appellant. (Michael W. Heaviside; Ashcraft & Gerel, on brief), for appellee.

USAir, Inc. ("employer") and its insurer contend that the

Workers' Compensation Commission erred in finding that the

commission's failure to send a copy of its opinion to employer,

its counsel, or insurer did not toll the running of the twenty-

day period for filing a request for review to the full

commission. 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. Rule

5A:27.

Code § 65.2-705(A) provides: "If an application for review

is made to the Commission within twenty days from the date of the

award, the full Commission . . . shall review the

evidence . . . ." In addition, Rule 3.1 of the Rules of the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Workers' Compensation Commission provides: "A request for review

of a decision or award of the Commission shall be filed by a

party in writing with the Clerk of the Commission within 20 days

of the date of such decision or award." If the application for

review is not made within the twenty-day limitation period, the

commission has no jurisdiction to review the matter unless the

petitioning party alleges fraud or mistake in the procurement of

the award. Harris v. Diamond Constr. Co., 184 Va. 711, 717, 36

S.E.2d 573, 576 (1946); K & L Trucking Co., Inc. v. Thurber, 1 Va. App. 213, 218, 337 S.E.2d 299, 302 (1985).

It was undisputed that employer did not file its request for

review within twenty days of the commission's June 23, 1995

opinion. Employer contended that it, its counsel, and its

insurer never received a copy of the June 23, 1995 opinion from

the commission. The first notice to employer of the issuance of

the opinion occurred when claimant's attorney faxed a copy of the

opinion to employer's claims adjuster on July 21, 1995.

Employer's counsel, the claims adjuster, and the insurer filed

affidavits asserting that they never received a copy of the

opinion from the commission. The commission accepted the

affidavits as true.

The commission found that our decision in McCarthy Elec.

Co., Inc. v. Foster, 17 Va. App. 344, 437 S.E.2d 246 (1993),

controlled its decision in this case. We agree. In McCarthy, we

recognized that despite the customary practice of the commission,

2 "neither the Virginia Code nor the Rules . . . require that the

commission provide the parties with copies of its orders,

judgments, or awards. In the absence of such a provision, the

party against whom a judgment is entered is not ordinarily

entitled to notice of its entry." Id. at 345-46, 437 S.E.2d at

247. In McCarthy, we held that "the commission's failure to

notify employer of the entry of the penalty award is not the type

of 'mistake in the procurement of the award' contemplated by

Virginia's case law and, therefore, does not toll the running of

the period for filing an appeal or otherwise exempt the employer

from its terms." Id. at 347, 437 S.E.2d at 248.

Employer incorrectly contends that McCarthy is

distinguishable from this case. Our holding in McCarthy applies

equally to penalty orders or any other judgment, award, or order

of the commission. Moreover, we clearly stated in McCarthy that

a party is not legally entitled to notice of the commission's

award, and therefore, the commission's failure to provide such

notice is not the type of mistake in procurement of the award

that would warrant a tolling of the twenty-day limitation period.

Thus, unlike Harris, there was no evidence in this case that the award was procured by fraud or mistake.

We presume that the legislature is cognizant of McCarthy and

of the interpretation that we and the commission have given to

Code § 65.2-705(A). We conclude that our construction is

consistent with the legislative intent, particularly in the

3 absence of any changes to the statute. See Creative Dimensions

Group, Inc. v. Hill, 16 Va. App. 439, 444, 430 S.E.2d 718, 721

(1993); City of Norfolk v. Lillard, 15 Va. App. 424, 430-31,

424 S.E.2d 243, 247 (1992).

For these reasons, we affirm the commission's decision

dismissing employer's request for review because it was not

timely filed.

Affirmed.