Opinion
Record No. 0834-93-1
Decided: July 5, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Palmer S. Rutherford, Jr. (Willcox Savage, on brief), for appellants.
Karen M. Rye, for appellee.
Present: Judges Barrow, Willis and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant, employer, challenges the assessment of penalties against it and the requirement that it pay the penalties before consideration would be given to recently filed applications. On appeal, it raises several issues: (1) whether the employer lawfully suspended the payment of compensation; (2) whether a deputy commissioner may order an employer to resume payments of compensation without a hearing on the merits; (3) whether he must do so with an order or award in writing, with a copy sent to the parties; and (4) whether due process requires that all orders and awards for which penalties may be assessed must be in writing and clearly communicated to the parties. We affirm the decision of the commission.
The employer contends that it properly paid compensation through November 1, 1991, in accordance with the commission's award dated June 6, 1990, and it properly suspended payment of the award on November 1, 1991, in accordance with Rule 13. It argues that the commission's claims division authorized the suspension of compensation. The record does not support employer's position.
On November 1, 1991, the employer filed a notice of application for a hearing based on "Change of Condition." It requested a credit because the "[c]laimant has been working and could continue." Rule 13(C) provides that upon receipt of an application alleging a change of condition, the commission shall examine the application and supporting documentary evidence for compliance with the Act and commission rules. If accepted, no further action shall be taken for fifteen days to allow the opposing party an opportunity to submit any preliminary evidence it so desires. After the expiration of the fifteen-day period, the commission may suspend the award if the preliminary evidence filed by both parties justifies suspension of compensation pending a hearing on the merits of the claim. If the award is suspended, the commission shall place the claim on the hearing docket and authorize the suspension of compensation as of the date for which compensation was last paid.
On December 2, 1991, the commission advised the parties in writing that the claim had been placed on the commission's docket for hearing, but it did not suspend the payment of compensation. No language in the commission's notice suggests that the award was suspended or that the employer was authorized to terminate the payment of compensation. Another notice was sent to the parties on December 10, 1991, advising them that a hearing had been scheduled on March 13, 1992.
We interpret Rule 13(C) to mean what it says: a temporary fifteen-day suspension is justified pending a hearing on the merits. See Telesystems, Inc. v. Hill, 12 Va. App. 466, 469-70, 404 S.E.2d 523, 525 (1991) (refusing to read Rule 13(C) to allow permanent termination of award payments). In this case, the commission did not find a suspension to be justified and did not grant one. The claimant's original award is a subsisting, continuing order, and, unless the commission affirmatively suspends the award, it was incumbent on the employer to resume payments within fifteen days of filing its application.
Furthermore, the language of Code Sec. 65.2-712 does not provide for the suspension of benefits as a remedy for an overpayment caused by the claimant's failure to disclose in a timely manner his earnings while receiving compensation benefits. However, as a practical matter, the suspension of an award is the appropriate action to take pending a hearing on the merits when the amount of the credit can be determined and applied to the accrued benefits.
If any misunderstanding existed over the meaning of Rule 13(C), it was resolved at the hearing on March 12, 1992, before deputy commissioner Robert E. Dely. All parties were present by counsel. The deputy commissioner announced that the purpose of the hearing was to hear the employer's application requesting a credit against compensation payments pursuant to Code Sec. 65.2-712. The parties apparently reached an agreement among themselves because the deputy commissioner placed the following on the record:
The parties agree that this is a matter that should and probably can be resolved without a formal hearing, that the parties have to discuss and try to calculate out what actual earnings if any the claimant had for the period alleged, but it is also apparently a sum certain that does not exceed $2500.00. In consideration of that, the employer will resume payment of compensation which was suspended upon the filing of its application except that it is authorized to withhold the amount of $2500.00 which will be the amount that they recuperate if it in fact is found to be that was the amount that the claimant earned. . . . Should the parties not be able to reach an agreement as to the amount owing to the employer as a credit, then we will have a hearing at which time both parties can present their evidence. Counsel will advise the Commission within 10 days from this date as to whether or not they have reached an accommodation or an agreement or reschedule the case for a new hearing date.
The deputy asked each side whether he correctly "stated the understandings and agreements of the parties," to which both counsel responded, "Yes." The case was continued pending advice from counsel.
Because the deputy commissioner did not hear from counsel, he scheduled a hearing on June 18, 1992. On the day of the hearing, and, pursuant to Code Sec. 65.2-524, the claimant filed a letter moving for a penalty assessment against the employer and insurer for their failure to resume payment of total temporary benefits in accordance with the original award after the $2,500 was credited to them. Because of a long docket, the deputy commissioner could not conduct the hearing as scheduled; thus, he continued it to September 17, 1992, at which time the witnesses for the employer did not appear, even though they were subpoenaed. The case was rescheduled for October 6, 1992.
At the October 6, 1992, hearing, the deputy commissioner stated that the following two issues were before him: (1) the extent of any credit due the employer; and (2) penalties that might be assessed for untimely payment of compensation under the June 6, 1990, award. The deputy commissioner noted that the commission had a new application from the employer seeking to terminate compensation because the claimant was able to return to work, but that the application was not before him for hearing at that time. The employer did not proffer any evidence concerning the amount of the credit and took a nonsuit on that issue.
Counsel argued the penalty issue, and the deputy commissioner stated that his order would dismiss the change of condition application for a credit and would assess penalties for all compensation not paid within two weeks after it was due. In his order, the deputy commissioner stated that the carrier failed to comply for approximately three months and that penalties must be assessed. He ordered the carrier to pay the claimant an amount equal to twenty percent of such compensation that was not paid within two weeks of the date it was due. He tolled the penalty for nonpayment during the period from November 1, 1991, through March 12, 1992, but ruled that a penalty was due on those amounts if they were not paid by March 26, 1992, a date two weeks after he ordered resumption of payments at the March 12, 1992, hearing. The penalty was not assessed against the $2,500 that was permitted to be withheld. The penalty order did not include compensation payments due after September 18, 1992, the date of the filing of the change of condition application based upon the allegation that the claimant was "able to return to work, no restrictions."
The commission reviewed the findings of the deputy commissioner, affirmed the opinion, and returned the case to Dispute Resolution to monitor compliance with the requirements of the claim. We find no error in the decision of the commission.
Due process requires that an individual receive notice and an opportunity to be heard before being deprived of life, liberty, or property. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313 (1950). All parties were present and agreed to the award entered on June 6, 1990. All parties were present and agreed to the order of March 12, 1992. The employer was present by counsel at every stage of the proceeding. Therefore, the employer's due process argument is without merit. No penalties have been assessed upon an award not in writing and clearly communicated to the employer.
For the foregoing reasons, the commission's decision is affirmed, and the matter is remanded to the commission for further proceedings in accordance with its decision.
Affirmed.