Westmoreland Coal Company v. Willie M. Gibson

• Court: Court of Appeals of Virginia
• Decided: July 8, 1997
• Docket: 2829963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Norfolk, Virginia

WESTMORELAND COAL COMPANY MEMORANDUM OPINION * BY v. Record No. 2829-96-3 JUDGE WILLIAM H. HODGES JULY 8, 1997 WILLIE M. GIBSON

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael F. Blair (Penn, Stuart & Eskridge, on brief), for appellant. Susan D. Oglebay for appellee.

Westmoreland Coal Company (employer) appeals a decision of

the Workers' Compensation Commission (commission) reinstating

Willie Gibson's (claimant) temporary total disability benefits

as of April 9, 1996. Employer contends that the commission erred

in ruling upon the merits of claimant's April 24, 1996

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. change-in-condition application when it reviewed the deputy

commissioner's decision on employer's March 15, 1996 1

change-in-condition application. Because we find that the

commission improperly considered claimant's April 24, 1996

change-in-condition application, we reverse and remand this case

to the commission so that it may consider that application

pursuant to proper commission procedures.

The deputy commissioner's decision dealt solely with the

issue presented by employer's March 15, 1996 application. The

commission did not docket claimant's April 24, 1996 application

for hearing. Moreover, claimant's application was not

consolidated with employer's application nor did the deputy

commissioner consider claimant's application in rendering his

decision. The commission's adjudication of claimant's

application, with no prior notice to employer, deprived employer

of due process and did not comply with the commission's

procedures set forth in its own rules. See Rules 1.2 through

1.6, and 2, Rules of the Virginia Workers' Compensation Commission; see also Sergio's Pizza v. Soncini, 1 Va. App. 370,

376, 339 S.E.2d 204, 207 (1986) ("The procedure utilized [by the

commission] must afford the parties minimal due process

safeguards.").

Accordingly, we remand this case to the commission so that 1 The parties and the commission referred to employer's application as filed on March 15, 1996. However, the record indicates that the application was filed on March 22, 1996.

2 it may consider claimant's change-in-condition application in

accordance with its rules.

Reversed and remanded.