Myrtis Sample v. McDonald's Store ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
MYRTIS SAMPLE
MEMORANDUM OPINION*
v. Record No. 2120-02-1 PER CURIAM
DECEMBER 31, 2002
McDONALDS STORE #04693 AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Sidney H. Kelsey, Jr.; Kelsey & Associates,
P.C., on briefs), for appellant.
(Robert A. Rapaport; Jennifer G. Tatum;
Clarke, Dolph, Rapaport, Hardy & Hull,
P.L.C., on brief), for appellees.
Myrtis Sample (claimant) contends her due process rights
were violated when (1) the Workers' Compensation Commission held
the March 7, 2002 hearing on employer's application to suspend
benefits in claimant's absence; (2) she suffered ineffective
assistance of counsel with respect to notice because her counsel
violated Rule 1:5 of the Rules of the Supreme Court of Virginia
and Rule 1.16 of Part 6-II, Virginia Rules of Professional
Conduct 1 ; and (3) the proffered evidence attached to her brief
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Claimant did not argue that her attorney violated Rules
1:5 and 1.16 before the commission. Accordingly, we will not
address that argument on appeal. See Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987);
Rule 5A:18.
would have demonstrated that she had a defense to employer's
application had she been given the opportunity to prepare her
defense or employ new counsel. Upon reviewing the record and
the parties' briefs, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
"Due process is flexible and calls for such
procedural protections as the particular
situation demands." It is well settled that
[a]n elementary and fundamental
requirement of due process in any
proceeding which is to be accorded
finality is notice reasonably
calculated, under all the
circumstances, to apprise
interested parties of the pendency
of the action and afford them an
opportunity to present their
objections.
"Pleading requirements in administrative
proceedings before [the commission] are
traditionally more informal than judicial
proceedings." However, the commission must
use procedures that "afford the parties
minimal due process safeguards."
WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227, 494 S.E.2d
147, 150 (1997) (citations omitted).
In rejecting claimant's argument that she was denied due
process because she was unaware of the March 7, 2002 hearing,
and unaware of her attorney's withdrawal from the case prior to
the hearing, the commission found as follows:
[C]laimant's official address of record
appears to be, and seems to have
consistently been, Post Office Box 564,
- 2 -
Painter, Virginia 23420. This is the
address to which all Commission
communications have been sent, and the
address to which the employer's vocational
rehabilitation specialist posted all
communications. Certified mail sent to that
address has been retrieved, regular mail
sent that address has not been returned, and
there is no allegation before us that this
address is in any way deficient.
Therefore, we presume that the claimant
received independent notice of the
employer's application, filed in July 2001,
and received her own copy of the
Commission's January 17, 2002 Notice of
Hearing - - advising that a hearing was
scheduled for March 17 [sic], 2002. While
the claimant's new attorney suggests that
his client was unaware of the hearing, there
is no allegation that his client did not
receive the Commission's notice, and no
explanation for her lack of notice if she
did, in fact, receive her copy of the
Commission's Notice of Hearing.
While we understand that the claimant
may have had a difference of opinion with
her prior attorney, it fails to justify her
failure to communicate with the Commission
prior to the hearing on March 7, 2002. It
is apparent from the written statements
before us that the claimant and her prior
counsel decided to part ways at least
several days - - and perhaps much longer - -
before the scheduled hearing. Despite
receiving the Commission's Notice of Hearing
in January advising of the hearing in March,
the claimant apparently did not attempt to
retain other counsel, or seek a continuance
to do so, prior to the hearing. Under those
circumstances, a continuance would almost
certainly have been granted.
We also note that the claimant has
failed to proffer any evidence, or advance
any argument that she might have brought
forth at the hearing to defend against the
employer's application. . . . Therefore,
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the Commission has no basis from which to
conclude that the claimant was in any way
prejudiced by holding the evidentiary
hearing in her absence.
Based upon these findings, the commission held that
claimant's assertion that she lacked notice of the hearing was
not credible and that she failed to prove she was prejudiced by
the deputy commissioner's denial of a new hearing. The
commission concluded, "claimant fired her counsel three or four
days before the hearing, failed to contact the Commission,
failed to ask for a continuance and failed to appear at the
hearing."
Credible evidence supports the commission's findings.
Based upon this record, the commission could reasonably infer
that claimant had notice of the March 7, 2001 hearing when she
fired her attorney a few days before the hearing. Thus,
claimant was provided with "minimal due process safeguards" by
being given notice and an opportunity to appear and be heard on
March 7, 2001. She did not avail herself of that opportunity.
Moreover, she failed to proffer evidence to the commission to
establish that she suffered prejudice due to holding the hearing
on March 7, 2001 in her absence. We will not consider such a
proffer for the first time on appeal. See Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
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