Green v. KEIL PLUMBING AND HEATING, INC.

• Decision Date: 02 March 2004
• Docket Number: Record No. 2091-03-2,Record No. 2335-03-2.
• Citation: 42 Va. App. 539,593 S.E.2d 525
• Parties: James Francis GREEN, Jr. v. KEIL PLUMBING AND HEATING, INC. and WCAMC Contractors' Group Self Insurance Association.
• Court: Virginia Court of Appeals

593 S.E.2d 525

42 Va. App. 539

James Francis GREEN, Jr. v. KEIL PLUMBING AND HEATING, INC. and WCAMC Contractors' Group Self Insurance Association.

Record Nos. 2091-03-2, 2335-03-2.

Court of Appeals of Virginia, Richmond.

March 2, 2004.

T. Bryan Byrne, Richmond, for appellant.

Cathie W. Howard (Richard A. Hobson, on briefs), Richmond, for appellees.

Present: HUMPHREYS, CLEMENTS and KELSEY, JJ.

HUMPHREYS, Judge.

In two separate appeals, James F. Green, Jr. appeals orders of the Workers' Compensation Commission compelling him to respond to certain discovery requests submitted by Keil Plumbing and Heating and WCAMC Contractors' Group Self-Insurance Association (collectively "employer"). Specifically, Green contends the commission erred in finding that he failed to timely file his response to employer's motion to compel, by ordering him to respond to four interrogatory questions and to complete an IRS Form 4506,¹ and by refusing to "withdraw" its order directing him to do so.² Because we find that we lack jurisdiction to consider Green's claims, we dismiss, Green's appeals.

I. Background

Green sustained an injury while working for employer on June 6, 1996. Employer accepted the injury as compensable and the commission thereafter awarded Green benefits in the form of weekly temporary total disability compensation, beginning June 19, 1997 and continuing, as well as lifetime medical benefits. As of the date of this appeal, both awards remained open.

In February of 2003, employer propounded interrogatories and requests for production to Green requesting information concerning his employment status, his banking records, and his income tax records. Green responded to these requests with a "general objection" contending that, pursuant to commission Rule 1:8, employer "lack[ed] standing" to request the information because "no application or claim [was] currently before the [c]ommission." Green otherwise provided some of the information requested but refused to respond further to the requests "unless ordered to do so by the [c]ommission."

On March 12, 2003, employer filed a motion to compel Green to respond to the interrogatories and request for production of documents, contending that pursuant to commission precedent interpreting Rule 1:8, employer had a "right to discover medical evidence relevant to [Green's] physical and mental condition, as well as a right to discover wage information," "where there is an open award for at least medical benefits." (Emphasis in original). Employer attached with its motion a copy of Green's responses to its discovery.

On March 18, 2003, Green filed a "Response to [Employer's Motion to Compel]," contending that employer's discovery requests were "not permissible under Rule 1:8. . . and [that employer had] made no showing that [Green was] working." In the response, Green requested that the commission enter an award of sanctions against employer because employer brought "these proceedings with no reasonable grounds." Green also filed an additional copy of his earlier responses to employer's discovery requests.

The following day, and apparently without having yet reviewed Green's response to employer's motion to compel, the deputy commissioner sent Green a letter, ordering Green to respond to employer's motion within ten days. The deputy commissioner advised Green that the issue of a claimant's ongoing disability is "always a relevant issue before the Commission," but requested that he respond "within the time period noted" if the matter was "atypical." Green did not file an additional response.

On April 16, 2003, employer sent a letter to the commission contending that Green had failed to "respond to the ... motion to compel." Accordingly, employer requested that the commission order Green to "respond to this discovery as specifically outlined within that motion to compel." Green responded to the employer's letter by notifying the commission that he had, in fact, responded to the motion to compel on March 18, 2003. Nevertheless, the deputy commissioner entered an order on May 1, 2003, explicitly finding that Green had failed to respond to the motion to compel, and "therefore" directing Green to "completely respond" to the discovery as requested by employer.

Green subsequently filed a request for review by the full commission, contending that the deputy commissioner had erred in finding he had not responded to the motion to compel, and in ordering him to respond to the discovery requests. In response to employer's motion to compel, the full commission ultimately ordered Green to comply with the discovery requests. Specifically, the commission found that because Green was subject to an open award there were "issues pending" before the commission pursuant to Rule 1:8, making the discovery permissible. Thereafter, Green filed a motion to reconsider with the full commission. Green also filed a notice of appeal to this Court.

In response to Green's motion to reconsider, the full commission again ordered Green to comply with the discovery as requested by employer. Green then filed an additional notice of appeal with this Court.

II. Analysis

In this consolidated appeal, Green raises six Questions Presented. During oral argument, we considered the merits of these issues; however, on our own motion, we also ordered the parties to file additional briefs analyzing whether Green's appeals to this Court were properly taken, pursuant to Code § 17.1-405. Finding that they were not, we now dismiss Green's appeals. We begin by recognizing that Green's appellate issues are related to a discovery dispute before the commission, and related discovery orders.

The Court of Appeals is invested with appellate jurisdiction over "[a]ny final decision" of the commission or related interlocutory order "(i) granting, dissolving or denying an injunction or (ii) adjudicating the principles of a cause." Code § 17.1-405. A final decision "`disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the [commission]." Southwest Virginia Hosps., Inc. v. Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83-84 (1951) (quoting Ryan v. McLeod, 73 Va. (32 Gratt.) 367, 376 (1879)).

City of Richmond-Fire & Emergency v. Brandon, 32 Va.App. 787, 789, 531 S.E.2d 22, 22 (2000). We find that the commission's discovery orders in this case do not constitute "final decisions," properly appealable to this Court pursuant to Code § 17.1-405. We reach this finding on two bases.

First, discovery proceedings before the commission are authorized and governed by Code § 65.2-703, which states:

A. Any party to a proceeding under this title may serve interrogatories or cause the depositions of witnesses residing within or without the Commonwealth to be taken, the costs to be taxed as other costs by the Commission. All interrogatories, depositions, or any other discovery shall conform to rules governing discovery promulgated by the Commission.

B. The Commission shall adopt rules governing discovery conforming as nearly as practicable to Part Four of the Rules of the Virginia Supreme Court. Such rules shall be adopted in accordance with and pursuant to the Administrative Process Act (§ 9-6.14:1 et seq.).

As is clear by the plain language of the statute, Code § 65.2-703 does not provide an avenue of appeal from a commission decision to grant or deny discovery, which is separate and apart from a legal proceeding before that administrative body. Indeed, with the exception of provisions concerning appeals from fines and penalties levied by the commission for failure to maintain evidence of compliance with the requirements of Title 65.2, the only provision concerning appeals from commission action is found in Code § 65.2-706. See Jewell Ridge Coal v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985); see Code §§ 65.2-805, -807 and -902 (pertaining to fines and penalties). In relevant part, Code § 65.2-706 states that "[n]o appeal shall be taken from the decision of one commissioner until a review of the case has been had before the full Commission. . . and an award entered by it. Appeals shall lie from such award to the Court of Appeals in the manner provided in the Rules of the Supreme Court." (Emphases added). The Supreme Court of Virginia has defined the words "such award," as used in Code § 65.2-706 (formerly Code § 65.1-98), to "mean [a] final...