Hitt Const. v. Pratt

• Decision Date: 17 February 2009
• Docket Number: Record No. 0723-08-4.
• Parties: HITT CONSTRUCTION and Zurich American Insurance Company v. Richard J.E. PRATT, Jr.
• Court: Virginia Court of Appeals

672 S.E.2d 904

53 Va. App. 422

HITT CONSTRUCTION and Zurich American Insurance Company v. Richard J.E. PRATT, Jr.

Record No. 0723-08-4.

Court of Appeals of Virginia, Alexandria.

February 17, 2009.

John H. Carstens (Virginia M. Sadler; Jordan, Coyne & Savits, LLP, on briefs), Fairfax, for appellants.

M. Thomas McWeeny (Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P., on brief), Fairfax, for appellee.

Present: HUMPHREYS, HALEY and BEALES, JJ.

JAMES W. HALEY, JR., Judge.

I. INTRODUCTION

Hitt Construction and Zurich American Insurance Company (collectively "Hitt") maintain the Workers' Compensation Commission: (1) lacked authority to review its appeal from a deputy commissioner's decision, because at the time of that review the commission was composed of only two statutorily authorized commissioners and (2) erred in that review in concluding claimant suffered permanent impairment causally related to his industrial accident. We hold that for the commission to exercise its review authority, under the Workers' Compensation Act, when that authority is timely challenged, it must be composed of three statutorily authorized members. This conclusion being dispositive, we do not address Hitt's second assignment of error. We remand the case for review by a now properly constituted commission.

II. FACTS

Pratt filed a claim for compensation on February 22, 2007. Deputy Commissioner Link awarded Pratt permanent partial disability benefits on July 20, 2007. Hitt requested review by the full commission.

Commissioner Tarr had retired effective February 1, 2008, leaving a vacancy. The General Assembly, which had gone into session on January 9, 2008, elected his successor, Commissioner Williams, on April 23, 2008, for a term beginning May 1, 2008. Due to the vacancy, the commission's review membership in the instant case consisted of the remaining two full commissioners—Commissioner Diamond and Commissioner Dudley—and Deputy Commissioner Szablewicz. The review decision was rendered on February 21, 2008.

In light of the vacancy on the commission, and of specific import to our decision, Hitt filed a motion to reconsider and vacate award, alleging in part that "the Commission is currently comprised of only two members and lacks jurisdiction to act under Va.Code § 65.2-200." (Emphasis added) (see part III of this opinion). Responding, Commissioner Dudley and Commissioner Diamond (and no one else) denied the motion by order entered March 6, 2008. The order included the following: "Chairman Diamond will appoint Deputy Commissioners to sit with the Commission in consideration of matters on Review, until the Virginia General Assembly has appointed someone to fill the vacant Commission seat." (Emphasis added). That order relied upon Code § 65.2-704(B) and this Court's decision in Clinch Valley Medical Center v. Hayes, 34 Va.App. 183, 538 S.E.2d 369 (2000), in support of the denial.

III. THE NATURE OF JURISDICTION

As quoted above, Hitt's motion to reconsider challenged the "jurisdiction" of the commission to review its appeal.

"`Jurisdiction' is a word of many, too many meanings." United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996), quoted with approval in Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998).

"Clarity would be facilitated if courts and litigants used the label `jurisdictional,' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 915, 157 L.Ed.2d 867 (2004).

To provide clarity and guidance in matters of jurisdiction, in Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 426 (2008), our Supreme Court quoted from Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990):

"A court may lack the requisite `jurisdiction' to proceed to an adjudication on the merits for a variety of reasons.

The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and `the other conditions of fact must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.' Farant Inv. Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144 (1924)."

(Emphasis added).

The Porter Court continued:

Our recitation in Morrison reflects the long-standing distinction between subject matter jurisdiction, which cannot be granted or waived by the parties and the lack of which renders an act of the court void, and territorial jurisdiction or venue. The latter goes to the authority of the court to act in particular circumstances or places and is waived if not properly and timely raised.

276 Va. at 229, 661 S.E.2d at 427 (emphasis added).

In Miller v. Potomac Hospital Foundation, 50 Va.App. 674, 683, 653 S.E.2d 592, 596 (2007), the claimant maintained the commission erred in determining a deputy commissioner "did not have jurisdiction to order the employer to pay medical expenses to the health care provider in a dispute between an employer, an employee, and a health care provider."

Citing Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001), we noted the distinction between subject matter jurisdiction and the authority of the commission to exercise its subject matter jurisdiction when that jurisdiction may be compromised by failure to comply with mandatory statutory requirements. Miller, 50 Va.App. at 684, 653 S.E.2d at 597. We noted that a challenge to subject matter jurisdiction cannot be waived by a litigant, may be raised at any time, and, if successful, renders any decision by a court or commission void. Id. By contrast, "[f]ailure to timely and properly object to a lack of authority waives any later challenge; any actions taken without authority are merely `voidable and not void.'" Id. at 684-85, 653 S.E.2d at 597 (quoting Nelson, 262 Va. at 284-85, 552 S.E.2d at 77).

After noting that the commission had subject matter jurisdiction over the controversy, we held that because the insurer did not timely raise the question of the authority of the deputy commissioner to order the payment in its direct appeal to the full commission, the challenge was waived and precluded from consideration by the commission.

With this preface as to jurisdiction, we turn to an analysis of the instant case.

IV. ANALYSIS

Code § 65.2-700 states in relevant part: "All questions arising under this title ... shall be determined by the Commission ...." The substantive dispute in this case involved whether or not the claimant suffered permanent impairment causally related to his industrial accident. It is clear that the commission has original and exclusive subject matter jurisdiction to consider that issue.

As noted above, the commission, in responding to Hitt's challenge to its "jurisdiction," in its order of March 6, 2008, maintained it had jurisdiction—that is, the authority—to render its decision. We find the commission's reliance on the statute and case it cites in its order misplaced.

Code § 65.2-704(B) states in relevant part: "When a member [of the commission] is absent or is prohibited ... from sitting with the full Commission to hear a review, the Chairman shall appoint one of the deputies to sit with the other Commission members." (Emphasis added). Here, no member of the commission was absent or prohibited from sitting. No third member of the commission existed, there being a vacancy on the commission. The commission's analysis of Clinch Valley Medical Center is equally faulty. There, the requisite three commissioners existed. "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." Clinch Valley Med. Ctr., 34 Va.App. at 188, 538 S.E.2d at 371. In short, the employer sought to distinguish between an "on the record" review and an "ore tenus" review, arguing a deputy could only sit in the latter. Addressing Code § 65.2-704(B), this Court rejected that argument. "The chairman can appoint a deputy for either type of review when absence creates the need." Id. at 191, 538 S.E.2d at 372. We did not address the issue raised in this appeal, i.e., can the chairman appoint a deputy to sit on a review when a commissioner is not merely absent and unavailable to serve, but does not, in fact, exist because of a vacancy on the commission.

Turning to the statutory provisions dealing with the structure of the commission, Code § 65.2-200 states in relevant part:

B. The Commission shall consist of three members....

C. Whenever a vacancy in the Commission occurs or exists when the General Assembly is in session, the General Assembly shall elect a successor for the unexpired term. If the General Assembly is not in session, the Governor shall forthwith appoint pro tempore a qualified person to fill the vacancy for a term ending thirty days after the commencement of the next session of the General Assembly, and the General Assembly shall elect a successor for the unexpired term.

Furthermore, Code § 65.2-705(A) states that "[i]f an application for review is made to the Commission ... the full Commission, except as provided in subsection B of § 65.2-704 and if the first hearing was not held before the full Commission, shall review the evidence." (Emphasis added).

The commission by statute is composed of three, not two, members. That being said, the question arises: if the Governor cannot fill a vacancy in the commission when the...