Clinch Valley Medical Center v. Hayes

• Decision Date: 19 December 2000
• Docket Number: Record No. 0828-00-3.
• Citation: 538 S.E.2d 369,34 Va. App. 183
• Parties: CLINCH VALLEY MEDICAL CENTER and Transportation Insurance Company v. Johnnie S. HAYES.
• Court: Virginia Court of Appeals

538 S.E.2d 369

34 Va. App. 183

CLINCH VALLEY MEDICAL CENTER and Transportation Insurance Company v. Johnnie S. HAYES.

Record No. 0828-00-3.

Court of Appeals of Virginia, Salem.

December 19, 2000.

Ramesh Murthy, Abingdon, (Lisa Frisina Clement, Midlothian; Penn, Stuart & Eskridge, Abingdon, on briefs), for appellants.

D. Edward Wise, Jr. (Arrington, Schelin & Herrell, P.C., Lebanon, on brief), for appellee.

Present: BUMGARDNER, HUMPHREYS and CLEMENTS, JJ.

BUMGARDNER, Judge.

Clinch Valley Medical Center appeals the continuation of an award of benefits to Johnnie S. Hayes by the Workers' Compensation Commission. The employer contends the commission (1) acted without authority when it authorized a deputy commissioner to sit with two commissioners to review a termination of the award opinion and (2) erred when it found the employer failed to prove the employee's condition was not related to the work accident. We conclude the commission did not err and affirm its decision.

The employee fell and hit the back of his head on concrete stairs. The commission awarded benefits commencing October 31, 1998 pursuant to a memorandum of agreement. On June 23, 1999, the employer filed an application alleging the employee's current condition was not related to the work accident. The deputy commissioner granted the application and terminated compensation. On a review of the record, a deputy commissioner sat with two members of the commission. They concluded the employer "failed to prove that the effects of the work accident have fully dissipated, and that the [employee's] continuing disability is due entirely to another cause" and reinstated the employee's benefits. The employer filed a motion to reconsider and argued a deputy could not sit in place of one of the three members of the commission to hear the review.

The three members of the commission considered the motion to reconsider and denied it unanimously. They reasoned the commission was responsible for adjudicating all issues and auncontroversies relating to the Workers' Compensation Act. Code § 65.2-201(A).¹ The commission had the authority to make rules and regulations for carrying out the Act. The commission could appoint deputies as necessary to carry out its responsibilities under the Act, Code § 65.2-201(B), and deputies exercised such powers and duties as delegated by the commission. Code § 65.2-203(A).² The commission explained the need to delegate deputy commissioners to sit with members because of the expanding work of the commission. The volume of cases, together with their increasing complexity and length, had increased the demands on the commission while the need for timely resolution of the cases had remained constant. In addition to its adjudicatory responsibilities, the commission noted that it had responsibility for administering the Act and setting policy.

The employer argues Code § 65.2-705³ limits the general powers of the commission to delegate duties to deputies. A deputy commissioner can sit in place of a commissioner but only when the commission reviews a case by ore tenus hearing of the parties, their representatives, and witnesses. The employer contends a deputy commissioner may not sit when the review is a review of the record without an appearance by the parties, representatives, and witnesses.

The employer argues Code § 65.2-705(A) mandates a review by the full commission, the three members acting jointly, with only one exception. That exception is created by the phrase "to hear a review" in Code § 65.2-704(8), which is incorporated by reference. Code § 65.2-705(A) authorizes two methods for review: "review the evidence," and "hear the parties at issue, their representatives, and witnesses." The employer contends the phrase "to hear a review" is a specific reference to the second type of review and thus limits the exception to a review of that sort. Thus, the employer concludes the chairman can appoint a deputy only when the commission hears the parties at issue.

Chapter 2 of the Workers' Compensation Act formulates the commission and defines its powers and duties. It gives the three members of the commission joint or collective responsibility for administering the Act and adjudicating the issues and controversies arising from it. Code § 65.2-201(A). It gives the commission corporate authority to delegate powers and duties to deputies to carry out its responsibilities. Code § 65.2-203(A). The commission acted under this authority when it appointed a deputy to sit with two members of the commission to review the termination of the award in this case.

Chapter 7 of the Act, entitled "Procedure in Connection with Awards," outlines the procedures for hearing parties at issue. It permits the full commission, a member, or a deputy to make an initial award. Code 652-704(B).⁴ However, it forbids an individual member, who made an award, to sit in review of that award. When that occurs, the statute authorizes the chairman to appoint a deputy to sit in place of the member disqualified. The provision also authorizes the chairman to appoint a deputy to sit in review if a member is absent.

Chapter 7 also outlines the procedure for reviewing an award. It directs the full commission to hear appeals. Code § 65.2-705(A). It contemplates a review of the evidence presented to the first ore tenus hearing or a review by a new ore tenus hearing of the parties, their representatives, and witnesses. The commission has discretion to chose which method to use; it shall "review the evidence or, if deemed advisable, ... hear the parties at issue." Code § 65.2-705(A).

The procedural provisions of Chapter 7 do not limit the powers granted to the full commission in Chapter 2. They provide the means to constitute a three-person review body when the commission could not act because the full complement of three members did not exist. The procedures fill a void when the commission would not be able to exercise its Chapter 2 powers. In one case, the full commission did not exist because of absence, in the other because of disqualification. Code § 65.2-704(B) speaks to the chairman's authority. It empowers the chairman, individually, to name a deputy to act with the two members who are present and qualified. In granting the chairman authority to act when the full commission would not be available, the statute does not thereby limit the authority of the full commission to act in other situations.

"It is a well settled principle of

law that where two statutes are in apparent conflict they should be so construed, if reasonably possible, so as to allow both to stand and to give force and effect to each." Kirkpatrick v. Board Of Supervisors, 146 Va. 113, 125, 136 S.E. 186, 190 (1926) (citation omitted). "The doctrine that a special act should be construed as an exception to the general law is not to be invoked unless the two acts cannot be harmonized or reconciled in any other way." Id. "Where two provisions are in potential conflict, it is this Court's duty to construe those provisions in a manner which would give full force and effect to both provisions." Cooper v. Occoquan Land Dev. Corp, 8 Va.App. 1, 6, 377 S.E.2d 631, 633 (1989) (citation omitted), rev'd on other grounds, 239 Va. 363, 389 S.E.2d 464 (1990). "It is a well established rule of construction that full force and effect must be given to each provision of statutory law." City of Richmond v. County Board of Supervisors, 199 Va. 679, 685, 101 S.E.2d 641, 646 (1958).

There is no good reason to interpret the statute to permit the chairman to appoint a deputy for the most complete and formal type of review but to prohibit appointment for the less involved, less intricate, review on the record. Similarly, there is no reason for the most involved review to lack an employer representative if fairness demands such representation and it is the reason for requiring review by members only.⁵

Even if the phrase "to hear a review" is given the meaning the employer urges, the statute would limit the chairman only when faced with disqualification of a member who made the initial award. As the phrase "to hear a review" appears in Code § 65.2-704(B), it does not modify both conditions under which the chairman can act: a member being absent or being prohibited. It does not apply to appointments of deputies when a member is absent. The phrase "to hear a review" appears in the prepositional phrase that modifies the passive verb "is prohibited." The phrase does not modify the adjective "absent" and accordingly cannot restrict its meaning. The chairman can appoint a deputy for either type of review when absence creates the need.

The phrase "to bear a review" as employed in Code § 65.2-704(B), refers to both methods of review, whether by review of the evidence in the record or by physical appearance before an ore tenus hearing by the tribunal. The verb "to hear" employs the same meaning used by the phrase "hearing in equity": to adjudicate, to decide, or to examine judicially. It is not used in the sense of perceiving by ear. See Gills v. Gills, 126 Va. 526, 541, 101 S.E. 900, 904 (1920). The employer further maintains that even if a deputy properly sat in this case, the commission acted improperly...