Peacock v. Browning Ferris, Inc.

• Decision Date: 14 May 2002
• Docket Number: Record No. 1772-01-2.
• Citation: 563 S.E.2d 368,38 Va. App. 241
• Court: Virginia Court of Appeals
• Parties: Michael B. PEACOCK v. BROWNING FERRIS, INC.

563 S.E.2d 368

38 Va. App. 241

Michael B. PEACOCK v. BROWNING FERRIS, INC.

Record No. 1772-01-2.

Court of Appeals of Virginia, Richmond.

May 14, 2002.

Richard F. Gorman, III, Richmond, for appellant.

Timothy E. Howie (Hartel, Kane, DeSantis, MacDonald & Howie, LLP, on brief), for appellee,

Present: BENTON, WILLIS and CLEMENTS, JJ.

CLEMENTS, Judge.

Michael B. Peacock (claimant) appeals the decision of the Workers' Compensation Commission (commission) rejecting his request for review of the deputy commissioner's denial of his claim for benefits. The commission concluded that the claimant's request for review was untimely because it was not filed within twenty days of his attorney's receipt by certified mail of a copy of the deputy commissioner's opinion, as required by Code § 65.2-705(A). Claimant contends the commission erred in reaching that conclusion because Code § 65.2-705(A)'s twenty-day limitation period for filing a request for review begins to run only when, as required by Code § 65.2-704(A), the party, rather than the party's attorney, receives a copy of the deputy commissioner's opinion by registered or certified mail. We agree with claimant and, therefore, reverse the commission's decision and remand this matter to the commission for further proceedings.

I. BACKGROUND

The relevant facts and procedural posture of this case are not in dispute. On July 29, 1998, claimant filed a claim with the commission alleging that he had suffered a compensable industrial injury by accident or, alternatively, a compensable occupational disease while in the employ of Browning Ferris, Inc. (employer). On March 2, 1999, following a hearing on claimant's claim on February 4, 1999, at which claimant was represented by counsel, the deputy commissioner issued an opinion denying claimant's claim under both theories of recovery.

That same day, the commission mailed copies of the deputy commissioner's opinion by certified mail to counsel of record for the parties and by regular first-class mail to the parties. Claimant's counsel received a copy of the opinion by certified mail on March 4, 1999. Having no prior knowledge of the deputy commissioner's ruling, claimant received a copy of the opinion by regular firstclass mail on March 6, 1999.

On March 25, 1999, claimant, proceeding pro se, filed a request for review of the deputy commissioner's opinion by the full commission. By letter dated March 31, 1999, the chief deputy commissioner rejected claimant's request for review, ruling that the commission lacked jurisdiction to hear the requested review because claimant's request for review was not filed within twenty days of his attorney's receipt by certified mail of the deputy commissioner's opinion.

Represented by newly retained counsel, claimant appealed the commission's decision to this Court. We remanded the case to the commission for further factual findings and for "such disposition deemed appropriate by the commission" of the issue of the timeliness of claimant's request for review. Peacock v. Browning Ferris, Inc., Record No. 1007-99-2 (Va.Ct.App. January 27, 2000).

Following an evidentiary hearing, the deputy commissioner issued his opinion on September 27, 2000. He found that claimant's attorney received a copy of the deputy commissioner's March 2, 1999 opinion by certified mail on March 4, 1999 and that claimant received a copy of that opinion by first-class mail on March 6, 1999. Relying on the commission's holding in Clay v. Ogden Allied Building Services, 75 O.W.C. 83 (1996), that the sending of a copy of the opinion by certified mail solely to a party's counsel of record satisfies Code § 65.2-704(A)'s requirement that a copy of the opinion be sent by registered or certified mail to the "parties at issue," the deputy commissioner concluded that Code § 65.2-705(A)'s twenty-day limitation period for claimant to file a request for review commenced when his counsel received a copy of the deputy commissioner's opinion by certified mail on March 4, 1999. Thus, the deputy commissioner determined that claimant's request for review filed on March 25, 1999 was untimely. On October 2, 2000, claimant requested review by the commission of the deputy commissioner's September 27, 2000 opinion. On June 14, 2001, the commission issued an opinion affirming the deputy commissioner's opinion.

Citing Clay, the commission held that receipt by claimant's attorney of the deputy commissioner's opinion on March 4, 1999, triggered the running of Code § 65.2-705(A)'s twenty-day limitation period. Although one commissioner believed that the commission was required under Code § 65.2-704(A) to send copies of its opinions by registered or certified mail to the parties themselves, the majority of the commission concluded that, because Code §§ 65.2-704(A) and 65.2-705(A) and Rule 3.1 of the Rules of the Workers' Compensation Commission¹ made no specific reference to "private" or "individual" parties, sending the opinion by certified mail solely to claimant's counsel of record satisfied Code § 65.2-704(A)'p mandate that the commission's opinions be sent "to the parties at issue by registered or certified mail."

The commission reasoned that the receipt of the copy of the opinion by claimant's attorney constituted receipt by claimant because, under the principles of agency, the acts and omissions of a party's attorney are imputed to the party and the party is bound by them. "Thus," the commission noted, "the required certified or registered copies are sent to a single representative of each party, in most cases an attorney, although courtesy copies are also provided to the individual or `private' parties ...." "To hold otherwise," the commission stated, "would ... impose an impracticable burden on the Commission, and subject the individual parties to unnecessary states of limbo even after the claim was decided."

II. ANALYSIS

Code § 65.2-704(A) provides, in pertinent part, as follows:

The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision. A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail.

Code § 65.2-705(A) provides, in pertinent part, as follows:

If an application for review is made to the Commission within twenty days after receipt of notice of such award to be sent as provided in Subsection A of § 65.2-704, the full Commission ... shall review the evidence or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives, and witnesses.

It is well-established that, absent an allegation of fraud or duress, the full commission has no jurisdiction to review an award or opinion if the request for review of that award or opinion was filed with the commission beyond the twenty-day limitation period set forth in Code § 65.2-705(A) for seeking review of an award or opinion. McCarthy Elec. Co. v. Foster, 17 Va.App. 344, 345, 437 S.E.2d 246, 247 (1993). Claimant did not allege fraud or mistake. Thus, the dispositive question in this case is whether, as the commission concluded, Code § 65.2-705(A)'s twenty-day limitation period began to run on March 4, 1999, when claimant's attorney of record received a copy of the deputy commissioner's March 2, 1999 opinion by certified mail. If so, claimant's request for review filed March 25,. 1999 was untimely and the commission had no jurisdiction to review the matter. The parties agree that, because Code § 65.2-705(A) provides that the twenty-day limitation period for filing a request for review begins to run upon receipt of notice of an award or opinion "sent as provided in subsection A of § 65.2-704," and because Code § 65.2-704(A) requires that a copy of the award or opinion be sent "to the parties at issue by registered or certified mail," resolution of the question of when the limitation period began to run in this case turns on the construction of the term "the parties at issue" as used in the directive set forth above.

Claimant contends the plain language of Code §§ 65.2-704(A) and 65.2-705(A) indicates the legislature intended that the limitation period start to run only when the party, rather than the party's counsel, receives a copy of the award or opinion by registered or certified mail. Thus, claimant argues, Code § 65.2-705(A)'s limitation period never commenced with respect to his request for review filed March 25, 1999, because the commission failed to send him a copy of the deputy commissioner's March 2, 1999 opinion by registered or certified mail. Hence, he concludes, because the running of the limitation period was never triggered, his request for review was timely.

In response, employer contends the legislature intended that the term "the parties at issue" be construed to include the parties' counsel of record. Such was the "sensible" construction the commission applied in Clay in 1996, employer argues, and, because the legislature has knowingly acquiesced in that construction ever since, it is entitled to great weight. Hence, employer concludes, the twenty-day limitation period began to run when claimant's attorney of record received a copy of the opinion by certified mail on March 4, 1999, and claimant's request for review filed on March 25, 1999 was untimely. We disagree with employer's argument.

While we generally give great weight and deference, on appeal, to the commission's construction of the Workers' Compensation Act, we are "not bound by the commission's legal analysis in this or prior cases." USAir, Inc. v. Joyce, 27 Va.App. 184, 189 n. 1, 497 S.E.2d 904, 906 n. 1 (1998). Indeed, we will withhold the deference we normally accord the commission's statutory interpretation of the Workers' Compensation Act when the commission's interpretation conflicts with the plain language of the statute....