Johnson v. City of Clifton Forge, 0839-87-3

• Decision Date: 03 January 1989
• Docket Number: No. 0839-87-3,0839-87-3
• Citation: 375 S.E.2d 540,7 Va.App. 538
• Parties: Willie H. JOHNSON v. CITY OF CLIFTON FORGE and The Travelers Insurance Company. Record
• Court: Virginia Court of Appeals

Page 540

375 S.E.2d 540

7 Va.App. 538

Willie H. JOHNSON v. CITY OF CLIFTON FORGE and The Travelers Insurance Company.

Record No. 0839-87-3.

Court of Appeals of Virginia.

Jan. 3, 1989.

Ellen M. Arthur (The Legal Aid Society of Roanoke Valley, on brief), for appellant.

Brian R. Jones (Elizabeth A. Schell, Woods, Rogers & Hazelgrove, on brief), for appellees.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

KOONTZ, Chief Judge.

In this workers' compensation case, we are presented with the following issues: (1) whether under Rule 5A:11 the failure of appellant to timely mail or deliver to counsel for appellees a copy of the notice for appeal required to be filed with the clerk of the Industrial Commission constitutes a jurisdictional defect that requires dismissal of the appeal, and (2) whether the evidence was sufficient to prove that appellant unjustifiably refused employment procured for him suitable to his capacity under Code § 65.1-63.

I.

On May 29, 1987, the Industrial Commission issued its decision which denied certain benefits to appellant, Willie H. Johnson. On June 29, 1987, counsel for Johnson filed a notice of appeal with the clerk of the Industrial Commission and certified that a copy was mailed to the clerk of the Court of Appeals. The notice contained the names of the appellees, City of Clifton Forge and The Travelers Insurance Company, and the names, addresses and telephone numbers of their counsel. A copy of this notice of appeal was not mailed or delivered to counsel for appellees at that time. Counsel for appellees subsequently received a copy of the notice of appeal on July 24, 1987, which was mailed on or about July 21, 1987. Because of these procedural facts, appellees filed a motion to dismiss this appeal, asserting that the failure of counsel for Johnson to mail or deliver a copy of the notice of appeal to opposing counsel within thirty days of the entry of the order by the commission is fatal to the perfection of this appeal and requires dismissal. We disagree.

Rule 5A:11(b) provides:

Notice of Appeal.--No appeal from an order of the Commission shall be allowed unless, within 30 days after entry of the order appealed from, or within 30 days after receipt of notice by registered mail of the order appealed from, counsel files with the clerk of the Industrial Commission a notice of appeal which shall state the names and addresses of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel, and whether the appellant challenges the sufficiency of the evidence to support the findings of the Commission. A copy of the notice of appeal shall be filed in the office of the Clerk of the Court of Appeals, and must be accompanied by a check or money order in the amount of $25 payable to the clerk of the Court of Appeals.

(emphasis added).

Rule 5A:1(10) defines the terms "filed with the clerk" or "files with the clerk" to mean "deliver to the clerk specified a paper, a copy of which has been mailed or delivered to opposing counsel...."

Relying primarily on these two rules, appellees assert that "compliance with the rules is at the very heart of the orderly administration of justice" and "if the rules were allowed to be ignored, the judicial system would fall into a state of chaos and there would be no finality to litigation." In general terms we agree with these assertions. However, it is just as true that a review of the merits of cases on appeal is the rightful concern of society in general and the appellate courts in particular. Thus, in the context of preserving a review of the merits of cases on appeal, a distinction must be drawn between rules which are mandatory and those which are directory. Only where the rule is mandatory does a failure to comply with it create a jurisdictional defect that will result in a dismissal of the appeal. See, e.g., Andrews v. Cahoon, 196 Va. 790, 86 S.E.2d 173 (1955); Avery v. County School Board of Brunswick County, 192 Va. 329, 64 S.E.2d 767 (1951); Harris v. Harris, 166 Va. 351, 186 S.E. 29 (1936); Johnson v. Commonwealth, 1 Va.App. 510, 339 S.E.2d 919 (1986).

To determine whether the particular provisions of Rule 5A:11(b) and Rule 5A:1(10), relied upon by appellees in their motion to dismiss this appeal, are mandatory or directory we must examine the rules in the context of the statutory scheme of the appellate jurisdiction of this court over appeals from the Industrial Commission and the overall scheme of the rules applicable to this Court. Code § 17-116.05, which defines the civil jurisdiction of this Court, provides for an appeal of right from any final decision of the commission. In contrast, criminal appeals pursuant to Code § 17-116.05:1 are by petition for appeal.

Code § 65.1-98 provides, in pertinent part:

Appeals shall lie from such awards [workers' compensation] to the Court of Appeals in the manner provided in the Rules of the Supreme Court. [Rule 5A:11].

The notice of appeal shall be filed with the clerk of the Industrial Commission within thirty days from the date of such award or within thirty days after receipt of notice to be sent by registered or certified mail of such award. A copy of the notice of appeal shall be filed in the office of the clerk of the Court of Appeals.

(emphasis added).

The term "filed" is defined by statute in the Workers' Compensation Act. Pursuant to Code § 65.1-2.1:

"Filed" as used in this Act shall mean hand-delivered to the Commission's office Richmond; sent by the telegraph; or posted at any post office of the United States Postal Service by certified or registered mail. Filing by first-class mail shall be deemed completed only when the application actually reaches the Commission's offices in Richmond.

Code § 65.1-2.1, unlike Rule 5A:1(10), defining the term "filed," does not require that a copy of the notice of appeal be mailed or delivered to opposing counsel. We believe, however, that the settled principle that a statute prevails over a rule is too simplistic an answer to appellee's assertions in this case. Rather, we believe the scheme of the rules concerning appeals from the commission is consistent with the statutes when the requirement of the rules for mailing or delivering a copy of the notice of appeal is considered directory and not mandatory.

We briefly review the scheme of the applicable rules. Rule 5A:11 is a "Special Rule Applicable to Appeals From the Industrial Commission." Part (b) essentially provides that the notice of appeal must reach the clerk of the commission within thirty days from the date of the commission's order or from the date such order is received by the appealing party. Rule 5A:3 specifically makes this thirty day time period mandatory. Once the notice of appeal has reached the clerk of the commission within the mandatory thirty day period, the remaining provisions of Rule 5A:11 provide that this clerk shall transmit the record to the clerk of the Court of Appeals, who shall in turn promptly notify all counsel of the date on which the record is filed in that office. The date on which the record is filed triggers the provisions of Rule 5A:19(b) which specifically address appeals as a matter of right and which provide for the times within which the briefs of the parties must be filed. Rule 5A:25 requires an appendix in all cases. This rule further provides that where the parties cannot agree on the contents of the appendix, the appellant is required to designate the contents to be included in the appendix within fifteen days after the record is filed. Thereafter, the appellee has ten days to designate any additional contents to be included in the appendix.

Thus, within the scheme of the rules, even where the appellant has failed to mail or deliver a copy of the notice of appeal to counsel for the appellee (Rule 5A:1(10)), the appellee is put on notice of the appeal when the clerk of this court sends notice that the record has been filed. Significantly, the appellee is neither required nor permitted to do anything until that point in the appeal process. Moreover, because such appeals are a matter of right rather than by petition (Code § 17-116.05), the appellee has no reason to assume an appeal will not follow a favorable decision by the commission. In this context no prejudice results to the appellee nor can he assume the litigation has ended.

For these reasons we hold that the provision of Rule 5A:1(10) that a copy of the notice of appeal be mailed or delivered to opposing counsel does not defeat the "filing" of the notice of appeal with the clerk of the commission under Rule 5A:11(b) because this provision is directory rather than mandatory. In so holding, we do not suggest that this provision can be ignored by the bar. It is consistent with what we would assume would be done without a rule, in good practice and as a matter of professional courtesy. The failure to comply with the rule, however, where appeals are a matter of right, does not threaten the orderly administration of justice nor does it threaten to throw the judicial system into a state of chaos.

II.

We turn now to the issue whether the evidence was sufficient to prove that Johnson unjustifiably refused employment procured for him suitable to his capacity under Code § 65.1-63.

In August, 1980, Johnson suffered an industrial injury to his back while employed by the City of Clifton Forge. As a result of this injury he began receiving temporary total disability benefits. In May, 1981, Dr. John D. Varner, Johnson's treating physician, advised the City's insurance carrier that Johnson could return to full time work with some restrictions or be retrained through vocational rehabilitation. Over the next several years, Johnson participated in various rehabilitation and education programs initiated by his employer and its insurance carrier. From August, 1984 to October, 1986, ...