Ronald W. Craft v. Commercial Courier Express, etal ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RONALD W. CRAFT
MEMORANDUM OPINION*
v. Record No. 1517-99-2 PER CURIAM
DECEMBER 7, 1999
COMMERCIAL COURIER EXPRESS, INC.
AND
MICHIGAN MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(T. Bryan Byrne, on briefs), for appellant.
(S. Vernon Priddy III; Sands, Anderson,
Marks & Miller, on brief), for appellees.
Ronald W. Craft contends that the Workers' Compensation
Commission erred in dismissing his pending claims without
prejudice due to his failure to comply with a discovery order.
Although Craft presented seven separate questions in his brief,
we address those questions together because they all relate to
the sole issue on appeal as stated above. 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. See Rule 5A:27. 1
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
On September 23, 1999, Craft filed in this Court
Objections and a Motion to Quash interrogatories propounded to
him by employer on September 20, 1999 before the commission. On
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the record established that on July 11, 1994, Craft
sustained work-related left leg and right arm injuries, which
Commercial Courier Express, Inc. and its insurer (hereinafter
referred to as "employer") accepted as compensable. The
commission entered an award for medical benefits and for
disability commencing July 19, 1994, based upon the parties'
Memorandum of Agreement. On October 11, 1994, the commission
terminated Craft's benefits based upon an Agreed Statement of
Facts filed by the parties, reflecting that Craft had returned
to work on October 12, 1994.
On January 29, 1996, Craft filed the first of numerous
claims. The January 29, 1996 claim sought permanent partial
disability benefits for an 85% impairment rating to Craft's left
leg. After the commission continued the hearing date a number
of times, a dispute arose between the parties regarding Craft's
refusal to submit to a medical examination by Dr. Kim R.
Sellergren. On March 27, 1997, the deputy commissioner ordered
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appeal, this Court does not have jurisdiction over disputes
related to discovery issues with respect to ongoing claims
before the commission which are not before this Court on appeal.
Rather, the commission is the proper forum to dispose of the
issue raised by claimant. Accordingly, we will not address
Craft's Objections and Motion to Quash.
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Craft to submit to an examination by Dr. Sellergren, at the
physician's convenience, and no later than April 16, 1997, or as
soon as Dr. Sellergren's schedule would permit. The commission
continued an April 7, 1997 hearing at the request of Craft's
counsel due to a conflict on that date. On April 8, 1997, Craft
filed a request for review of the deputy commissioner's order
requiring him to submit to an examination by Dr. Sellergren,
along with several other issues. Employer moved to dismiss
Craft's claims. The commission declined to review the issue
regarding the medical examination, finding that it was a
procedural matter and, thus, interlocutory and not ripe for
review. Therefore, the commission remanded the case to the
evidentiary hearing docket.
The commission scheduled a hearing for July 11, 1997, which
the deputy commissioner cancelled on July 8, 1997. On July 15,
1997, the deputy commissioner ordered Craft, by counsel, to file
a memorandum by July 28, 1997, to show cause why his pending
claims should not be dismissed for failing to attend the
examination. After the deputy commissioner reviewed Craft's
memorandum, he granted Craft an additional fourteen days within
which to set a date for the examination. In his July 30, 1997
order, the deputy commissioner warned Craft that "all claims
deriving from the July 11, 1994, industrial accident shall be
DISMISSED WITH PREJUDICE should Dr. Sellergren's examination not
proceed for reasons attributed to [Craft]."
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Craft submitted to the examination, although a dispute
arose over payment of Dr. Sellergren's fee. A hearing convened
on November 21, 1997 on Craft's claims, but it was adjourned
before any testimony was taken. The commission reset the
hearing for February 5, 1998. Before the February 5, 1998
hearing, employer sought to take Craft's discovery deposition.
On January 23, 1998, employer sent Craft a notice of a January
30, 1998 deposition. Craft's counsel informed employer on
January 26, 1998 that Craft refused to attend the deposition,
claiming that he was out of town.
The commission rescheduled the February 5, 1998 hearing due
to Craft's unavailability. Employer again sought to depose
Craft before the rescheduled hearing and on March 26, 1998, sent
a deposition notice to Craft's counsel. The notice reflected a
deposition date of April 1, 1998. However, as the commission
correctly found, the parties' correspondence and pleadings made
it abundantly clear that Craft was well aware that the actual
date for the deposition was April 10, 1998.
On April 1, 1998, Craft's counsel moved to quash the
deposition notice on the grounds that Craft had painful knees,
did not have reliable transportation, and had not yet been
reimbursed by employer for his travel expenses to Dr.
Sellergren's examination. Craft's counsel also moved to
transfer venue of the case from Richmond to the Norfolk Regional
Office of the commission. In an April 7, 1998 order, the deputy
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commissioner ordered Craft to appear for his deposition on April
10, 1998. The order warned Craft that if he failed to appear
for the deposition, the commission would dismiss all of his
pending claims. On April 8, 1998, Craft filed a motion to
reconsider and requested a review of the deputy commissioner's
April 7, 1998 order. On April 10, 1998 the Chief Deputy
Commissioner sent a letter to Craft's counsel via telefax in
which she declined to reconsider the issue on review.
Craft failed to appear for the April 10, 1998 deposition.
On that date, employer moved the commission to dismiss Craft's
pending claims. On April 11, 1998, Craft responded and stated
that he wished to be deposed by telephone or in Chesapeake. He
also requested a change in venue and moved to strike employer's
defenses.
On April 13, 1998, the deputy commissioner dismissed
Craft's pending claims with prejudice, finding that he had
presented no viable basis why he did not appear for his
deposition on April 10, 1998 as ordered and that he was fully
apprised of the consequences for failing to do so. The deputy
commissioner also found that the motion for change of venue was
untimely and without merit. Craft sought review before the full
commission.
On October 2, 1998, the full commission vacated the deputy
commissioner's April 13, 1998 order and remanded the case to
afford Craft the opportunity to respond to employer's motion to
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dismiss. Craft filed a response setting forth the reasons that
he failed to attend the April 10, 1998 deposition. He alleged
that (1) he failed to receive timely notice of the deposition;
(2) he had health and transportation difficulties; (3) employer
did not pursue an option offered by Craft's counsel at the April
10, 1998 deposition to depose Craft by telephone; and (4) his
painful knees, the side effects of medication, and his lack of
finances and reliable transportation prevented him from
attending the deposition.
The deputy commissioner rejected Craft's contentions and
ruled that his excuse of lack of timely notice was without
merit, noting that he filed a motion to quash on April 1, 1998,
nine days before the scheduled deposition and he did not allege
defective notice. Under the circumstances of these proceedings,
the deputy commissioner found that dismissal of Craft's pending
claims was the appropriate sanction. On December 8, 1998, the
deputy commissioner entered an order dismissing Craft's claims
with prejudice. On review, the full commission affirmed the
dismissal and modified the deputy commissioner's order by making
the dismissal without prejudice. In so ruling, the full
commission concluded as follows:
[W]e agree with the Deputy Commissioner that
[Craft] through his conduct in this case has
ignored the lawful orders of the Commission,
as properly exercised through the Deputy
Commissioner, and thereby unnecessarily
obstructed these proceedings. We are simply
unpersuaded by [Craft's] purported inability
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to travel, noting that he has on occasion
missed scheduled appointments because he
was, according to his counsel, out of town
or out of state. The bare statement that
Craft does not have "reliable
transportation," without more, is similarly
unpersuasive.
We find that [Craft] intentionally
thwarted the deposition proceedings in order
to gain an advantage, defying the specific
warning of the Deputy Commissioner that this
very dismissal sanction would be imposed. A
claimant cannot simply ignore with impunity
the lawful orders of a hearing officer,
especially where the hearing officer warns
that the claims would be dismissed for
noncompliance.
The commission has the authority to adopt rules to carry
out the provisions of the Workers' Compensation Act. See Code
§ 65.2-201(A). Rule 1.8(G) of the Rules of the Virginia
Workers' Compensation Commission allows a party to take the
deposition testimony of any person, including another party,
after a claim or application has been filed. That rule provides
that "[d]epositions shall be taken in accordance with the
requirements and limitations of the Rules of the Supreme Court
of Virginia . . . ." Rule 4:5(a1) of the Rules of the Supreme
Court of Virginia, provides that "[d]epositions shall be taken
in the county or city in which the suit is pending . . . ."
"The commission has the same authority as a court to punish
for noncompliance with its discovery orders." Jeff Coal, Inc.
v. Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993).
See also Code § 65.2-202. In addition to its statutory
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authority to impose sanctions, the commission's rules authorize
the commission to impose certain sanctions, including dismissal
of a claim or application. See Rule 1.12, Rules of the Virginia
Workers' Compensation Commission.
Thus, the commission has the authority to impose the
sanction of dismissal in appropriate cases. The decision to
sanction a party for disobedience to an order is committed to
the commission's discretion. See Jeff Coal, 16 Va. App. at 277,
430 S.E.2d at 716. The record clearly establishes that without
justification, Craft failed to attend his April 10, 1998
deposition in Richmond as ordered by the commission. The record
belies Craft's contention that he was not given timely notice of
the deposition or that the commission failed to timely and
properly notify him of its intention to dismiss all of his
claims if he failed to attend the April 10, 1998 deposition.
For these reasons, we affirm the commission's decision.
Affirmed.
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