Kathryn E. Shuron v. ARA Food Service ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
KATHRYN E. SHURON
MEMORANDUM OPINION *
v. Record No. 1237-98-4 PER CURIAM
OCTOBER 27, 1998
ARA FOOD SERVICE AND RELIANCE
NATIONAL INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kathryn E. Shuron, pro se, on brief).
No brief for appellees.
Kathryn E. Shuron ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in (1) dismissing
without prejudice her claim for benefits filed on November 17,
1995 (VWC File No. 177-74-90) and her claim for benefits filed on
February 26, 1996 (VWC File No. 168-88-58); (2) finding that the
January 3, 1997 re-filing of her application alleging a
change-in-condition, occurring on May 11, 1994 and/or February
19, 1995, was barred by the statute of limitations contained in
Code § 65.2-708(A) (VWC File No. 168-88-58); and (3) finding that
the January 3, 1997 re-filing of her application alleging an
injury by accident on May 11, 1994 was barred by the statute of
limitations contained in Code § 65.2-601 (VWC File No.
177-74-90). Claimant also requests that this Court appoint Dr.
James J. Coyle as her authorized treating physician. Upon
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
reviewing claimant's brief and the record, we find that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
Background
On March 12, 1994, claimant sustained a lower back injury
arising out of and in the course of her employment with ARA Food
Service ("ARA"). ARA accepted the March 12, 1994 accident as
compensable, agreements were executed, and ARA paid compensation
to claimant for various time periods.
On November 17, 1995, claimant filed a claim alleging an
injury by accident arising out of and in the course of her
employment on May 11, 1994. (VWC File No. 177-74-90). On
February 26, 1996, claimant filed a claim for benefits alleging
an injury by accident arising out of and in the course of her
employment with ARA on February 19, 1995 (VWC File No. 180-43-83)
and a "restrain" of her March 12, 1994 and May 11, 1994 injuries.
(VWC File No. 168-88-58).
The commission scheduled a hearing to take place on December
19, 1996 on all three claims. However, because claimant failed
to file responses to ARA's discovery requests after the
commission ordered her to do so, the deputy commissioner
dismissed the claims in VWC File Nos. 168-88-58 and 180-43-83
without prejudice and the claim in VWC File No. 177-74-90 with
prejudice. Claimant appealed that decision to the full
commission. On January 31, 1997, the full commission affirmed
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the deputy commissioner's dismissals without prejudice in VWC
File Nos. 168-88-58 and 180-43-83 and reversed the dismissal in
VWC File No. 177-74-90 from with prejudice to without prejudice.
The full commission also concluded that claimant's January 3,
1997 review request would be considered a re-filing of all three
claims and referred all three claims to the evidentiary hearing
docket.
After a hearing on all three claims on June 11, 1997, the
deputy commissioner ruled that the claims alleged in VWC File
Nos. 168-88-58 and 177-74-90 were barred by the applicable
statute of limitations. With respect to VWC File No. 180-43-83,
the deputy commissioner found that claimant proved she sustained
an injury by accident arising out of and in the course of her
employment on February 19, 1995. The deputy commissioner awarded
medical expenses to claimant, but held that she failed to prove
she was entitled to an award for disability. In an April 28,
1998 opinion, the full commission affirmed the deputy
1
commissioner's findings. Claimant appeals from that decision.
Dismissal of Claims Without Prejudice 2
1
Claimant did not appeal the commission's findings with
respect to VWC File No. 180-43-83. Accordingly, we will not
address those findings on appeal.
2
In its April 28, 1998 opinion, the full commission did not
consider this issue, citing claimant's failure to appeal the
commission's January 31, 1997 decision dismissing her claims
without prejudice. We find that because the January 31, 1997
decision referred the re-filed claims to the evidentiary hearing
docket, it did not constitute a final appealable order.
Accordingly, we will consider this issue on appeal.
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In its January 31, 1997 review opinion, the commission found
as follows:
The employer propounded interrogatories
on November 11, 1996, prior to a hearing
scheduled for December 19, 1996. After the
employee did not respond to the
interrogatories, counsel for the employer
requested on December 4, 1996, that the
Commission dismiss the claims. The deputy
commissioner declined to dismiss the
claimant's claims because the employer had
filed no motion to compel responses in a
timely manner. The deputy commissioner also
declined to continue the hearing because the
employer had had sufficient time to commence
discovery after the deputy commissioner
continued a September 19, 1996, hearing at
the employer's request. In his December 5,
1996, letter the deputy commissioner directed
the claimant to respond to the employer's
interrogatories by December 13, 1996, or face
possible sanctions. The employee did not
respond.
In her petition for review, the employee
states that she did not receive the
interrogatories from the employer in November
but states that she received both the
interrogatories and the deputy commissioner's
letter on December 9, 1996. The employee
admits that she did not respond to the
discovery devices, citing medical and child
care problems.
Based upon those findings, the commission concluded that
"both sides have engaged in dilatory behavior which has slowed
the progress of the litigation." Consequently, the commission
affirmed the deputy commissioner's dismissal of VWC File Nos.
168-88-58 and 180-43-83 without prejudice and reversed the deputy
commissioner's dismissal of VWC File No. 177-74-90 from with
prejudice to without prejudice.
"[T]he commission has the same authority as a court to
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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
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. The commission has the
authority to adopt rules to carry out the provisions of the
Workers' Compensation Act. See Code § 65.2-201(A).
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. Based upon this record, we cannot find that the
commission abused its discretion.
VWC File No. 168-88-58
Code § 65.2-708(A) provides that "[n]o such review [of an
award on the ground of change in condition] shall be made after
twenty-four months from the last day for which compensation was
paid, pursuant to an award under this title . . . ." This
section required that claimant's application alleging a change in
condition be filed within twenty-four months from October 16,
1994, the last day for which compensation was paid pursuant to an
award. Pursuant to the commission's January 31, 1997 decision,
claimant's application was not considered filed until January 3,
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1997, more than twenty-four months after October 16, 1994.
Accordingly, the commission did not err in finding that it lacked
jurisdiction to consider claimant's claim alleging a
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change-in-condition because it was time-barred pursuant to Code
§ 65.2-708(A).
VWC File No. 177-74-90
Code § 65.2-601 provides that "[t]he right to compensation
under this title shall be forever barred, unless a claim be filed
with the Commission within two years after the accident."
Claimant's re-filed January 3, 1997 application alleging a May
11, 1994 industrial accident was filed more than two years after
the date of the alleged accident. Accordingly, the commission
did not err in dismissing the claim on the ground that it was not
timely filed as required by Code § 65.2-601.
The commission also found that there was "no equitable basis
to toll the two-year statute of limitations" pursuant to Code
§ 65.2-602. We agree.
The evidence proved that employer filed an Employer's First
Report of Accident with respect to claimant's May 11, 1994
accident on November 17, 1995. At that time, approximately six
months before the limitations period would expire, the commission
mailed to claimant a pamphlet outlining her rights and
responsibilities under the Workers' Compensation Act. In
addition, the commission had previously mailed that same pamphlet
to claimant on May 10, 1994, with respect to her March 12, 1994
accident. Claimant admitted that she consulted an attorney, who
informed her in an August 1, 1995 letter of the two-year
limitations period and the importance of filing a timely claim.
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In fact, claimant initially filed a timely claim on November 17,
1995, which was dismissed without prejudice.
Based upon this record, we cannot find that claimant's
evidence proved that employer's conduct prejudiced her rights
with respect to filing a timely claim as required to invoke the
tolling provision contained in Code § 65.2-602.
Treating Physician
Claimant did not raise this issue before the commission.
Accordingly, we will not consider it for the first time on
appeal. See Green v. Warwick Plumbing & Heating Corp., 5 Va.
App. 409, 413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
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