Opinion
Record No. 0385-94-4
Decided: January 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William E. Findler for appellant.
No brief or argument for appellees.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Dale H. Kennedy (Kennedy) appeals a decision of the Virginia Workers' Compensation Commission (commission) which dismissed his claim for permanent partial disability benefits on the ground that the claim was untimely pursuant to Code Sec. 65.2-601. Because we hold that the order withdrawing Kennedy's original claim from the hearing docket did not terminate his claim, we reverse.
Kennedy presented two additional theories under which his claim would survive a challenge under Code § 65.2-601. Because we hold that the original claim remains viable, we do not address and express no opinion on the commission's resolution of those issues.
On March 27, 1986, Kennedy sustained multiple injuries in a fall from the roof of a building at Washington National Airport in Arlington while in the employ of Aceves Construction and Maintenance Company (employer). On April 17, 1986, Kennedy filed a claim for compensation with the commission and requested a hearing.
On May 12, 1986, Kennedy, by letter, requested that the commission " withdraw the claimant's request for a hearing and notice of claim in this matter. The insurance carrier has accepted this claim as compensible [sic] under the Workmen's Compensation Laws of the District of Columbia." (Emphasis in original.) An order withdrawing the case from the hearing docket was entered on May 20, 1986. That order did not state that the claim itself was withdrawn.
Kennedy received temporary total disability and temporary partial disability benefits from employer under agreements filed with the District of Columbia Workers' Compensation Commission. However, in April, 1993, when Kennedy sought compensation for his permanent partial disability in the District of Columbia, employer defended on the ground that the District of Columbia lacked jurisdiction in the matter.
On October 19, 1993, Kennedy filed a claim for permanent partial disability benefits in Virginia. The claim was denied by a claims examiner on the ground that it had been filed after the expiration of the two year statute of limitations of Code Sec. 65.2-601. Kennedy resubmitted the claim, asserting that various factors had tolled the statute of limitations. The claim was again denied by the claims examiner and the matter was appealed to the commission. In an opinion dated February 18, 1994, the commission found that the 1993 claim was untimely on the ground that the 1986 claim had been withdrawn.
Administrative agencies, like trial courts, speak through their orders. See Frank L. Cook Transfer v. Commonwealth, 196 Va. 384, 390, 83 S.E.2d 733, 736 (1954) (applying rule to the State Corporation Commission). Accordingly, we will not consider the intent of the parties and look only to the commission's order.
In Keenan v. Westinghouse Elevator Co., 10 Va. App. 232, 391 S.E.2d 342 (1990), we held that where the commission, responding to a claimant's request, entered an order withdrawing an application for hearing, that order was insufficient to terminate the fact of the claim having been filed. Id. at 235, 391 S.E.2d at 344. The language used by the commission in its order in Keenan is identical to that used in the order responding to Kennedy's request in this case. See id. Thus, the order in this case, while effective in removing the claim for the hearing docket, was not sufficient to terminate the claim itself.
"[I]n the absence of an order from the commission dismissing the claim for failure to prosecute, the commission has jurisdiction to hear the pending case." Id. at 236, 391 S.E.2d at 344. Accordingly, we hold that the commission erred in dismissing Kennedy's application for permanent partial disability benefits and remand the case for further proceedings.
Reversed and remanded.