Charles E. Rich v. Edwards Grain & Fertilizer, etc ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CHARLES E. RICH
v. Record No. 2255-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
EDWARDS GRAIN AND FERTILIZER, INC. OCTOBER 3, 1995
and VIRGINIA FARM BUREAU
FIRE & CASUALTY INSURANCE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. MacBeth, Jr. (Rutter & Montagna, on brief),
for appellant.
Charles F. Midkiff (Ruth N. Carter; Midkiff & Hiner, P.C.,
on brief), for appellees.
Acting on application of Edwards Grain and Fertilizer, Inc.
and its insurer, Virginia Farm Bureau Fire & Casualty Insurance
(collectively referred to as employer), the Workers' Compensation
Commission (commission) concluded that Charles E. Rich (claimant)
had been released to his pre-injury employment and terminated the
related benefits. Claimant appeals, contending that the commission
erroneously denied his request for an evidentiary hearing and
challenging the sufficiency of the evidence to support its
findings. We affirm the decision of the commission.
The parties are conversant with the record, and we recite only
those facts necessary to our disposition of the appeal.
Claimant sustained a compensable injury on July 12, 1993, and
was awarded attendant benefits. On April 11, 1994, employer filed
an "Application for Hearing" which alleged that claimant had been
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
approved by his treating physician, Dr. Robert Singer, for return
to employment and sought termination of the award. By
correspondence dated May 4, 1994, the commission notified Herbert
L. Sebren, Jr., then claimant's counsel of record, and employer
that the application had been "selected" for "determination on the
record" and instructed "each side submit . . . a statement of . . .
position . . ." by May 23, 1994. The commission further advised
that written notice to the commission was required "within 10 days
of the date of this letter" if a party "believe[d] a trial-type
evidentiary hearing [was] necessary . . . ."
Thereafter, on May 6, 1994, Mr. Sebren wrote the commission
that he "no longer" represented claimant. Subsequent
correspondence from Robert J. Macbeth, Jr. dated May 13, 1994,
advised the commission that he had been retained as claimant's
counsel and was accompanied by a related "power of attorney form,"
executed by claimant on April 11, 1994.
Upon receipt of employer's "statement of position," Mr.
MacBeth requested, by letter dated May 26, 1994, that the
application be referred for an "evidentiary hearing." However,
noting the previously imposed ten day limitation, a deputy
commissioner denied the motion, but allowed claimant ten additional
days within which to file a statement of position. Claimant
appealed this decision, and the commission affirmed, returning the
case to a deputy for an "on-the-record determination." 1 On review,
1
Claimant's request for reconsideration was denied by the
commission.
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the deputy concluded that claimant was authorized by his physician
for return to pre-injury employment and terminated benefits, a
decision also affirmed by the commission.
It is well established that, "while procedures before the
. . . Commission must ensure that the parties are accorded due
process of law, the . . . Commission is afforded considerable
latitude in adapting the conduct of hearings to the circumstances
of the case." Kim v. Sportswear, 10 Va. App. 460, 470, 393 S.E.2d
418, 424 (1990); see Code § 65.2-201(A). The Rules of the Virginia
Workers' Compensation Commission provide that, "[a]t the request of
either party, or at the Commission's direction, contested issues
not resolved informally . . . will be referred for decision on the
record or evidentiary hearing." Rule 2. "When it appears that
there is no material fact in dispute as to any contested issue,
determination will proceed on the record." Rule 2.1. This
"expedited procedure" relates to the commissioner's "quasi-judicial
function" and is a proper exercise of its authority. Williams v.
Virginia Elec. & Power Co., 18 Va. App. 569, 574, 445 S.E.2d 693,
696 (1994).
The instant record discloses that the commission initially
identified employer's application as a candidate for decision "on
the record" and notified the parties' counsel of record
accordingly. Thereafter, Mr. Sebren advised the commission that he
no longer represented claimant and, still later, Mr. MacBeth
notified the commission of his retention as counsel. The record
neither explains Mr. Sebren's delay in informing the commission of
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his release nor Mr. MacBeth's delay in advising of his
substitution. As the commission properly noted, "whether Mr.
Sebren ever advised the claimant [or Mr. MacBeth] that his client's
case had been selected for an on-the-record determination" was "a
matter entirely between attorney and client," and not the
responsibility of the commission.
Claimant was given ten days in which to request an evidentiary
hearing and to present evidence that such hearing was necessary.
However, claimant inexplicably allowed that time to expire without
acting to protect his interests. Moreover, nothing in the record
suggests that the application was inappropriate for on the record
review. Under such circumstances, the commission's action was
consistent with its rules and constitutionally sound. See id. at
578-79, 445 S.E.2d at 697.
Lastly, claimant argues that the record fails to establish
that Dr. Singer was sufficiently familiar with his employment to
properly release him for return to work.
Under familiar principles, we view the evidence in the light
most favorable to the prevailing party, employer in this instance.
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). Factual findings of the commission will be
upheld on appeal if supported by credible evidence. James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989); see Code § 65.2-706. "Where reasonable inferences may be
drawn from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
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Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).
The commission may rely on an attending physician's
"unequivocal statement that [the claimant is] fully able to return
to unrestricted work and[, in] the absence of any medical evidence
to the contrary, the Commission [can] only conclude [that the
claimant is] able to return to unrestricted work . . . ." Mace v.
Merchants Delivery, 221 Va. 401, 403-04, 270 S.E.2d 717, 719
(1980). Thus, employer need not establish that the treating
physician was familiar with the physical requirements of the
claimant's employment under such circumstances.
Here, although Dr. Singer's medical records do not include
claimant's job description, Dr. Singer noted that claimant's injury
occurred while "unloading wheat bags" and his related treatment of
claimant spanned nine months. Thereafter, Dr. Singer
unconditionally released claimant for return to "regular," as
opposed to "light," work. This evidence supports the inference
that Dr. Singer was aware of claimant's physical abilities in
relation to the requirements of his workplace and properly released
him to employment.
Accordingly, we affirm the decision of the commission.
Affirmed.
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