Rios v. Ryan, Record No. 0804-00-2.

• Court: Court of Appeals of Virginia
• Citation: 542 S.E.2d 790,35 Va. App. 40
• Decision Date: 06 March 2001
• Docket Number: Record No. 0804-00-2.
• Parties: Arturo RIOS v. RYAN INC. CENTRAL and Reliance National Indemnity Company.

542 S.E.2d 790
35 Va. App. 40

Arturo RIOS
v.
RYAN INC. CENTRAL and Reliance National Indemnity Company

Record No. 0804-00-2.

Court of Appeals of Virginia, Richmond.

March 6, 2001.

Gregory O. Harbison, Richmond (Craig Davis; Geoffrey R. McDonald & Associates, P.C., on brief), for appellant.

S. Vernon Priddy, III (Patsy L. Mundy, Richmond; Sands, Anderson, Marks & Miller, on brief), for appellees.

Present: WILLIS and ANNUNZIATA, JJ., and COLEMAN, Senior Judge.¹

542 S.E.2d 791

COLEMAN, Senior Judge

Arturo Rios appeals the Workers' Compensation Commission's decision denying his application for disability benefits. He argues that: (1) the commission erred in finding he was not an employee under the Workers' Compensation Act; (2) the denial of benefits violated his constitutional equal protection rights; (3) the deputy commissioner erred by admitting hearsay evidence; and (4) the deputy commissioner erred by refusing to recuse herself. For the following reasons, we affirm the commission's decision.

I. BACKGROUND

Rios was employed by Ryan Inc. Central in August 1994 as a laborer and truck driver. On August 25, 1998, Rios sustained an injury by accident arising out of and in the course of his employment. Rios filed a claim for workers' compensation disability benefits. Employer defended the claim, arguing, among other things, that Rios was an alien who was not authorized by the United States immigration law to work in this country and, thus, was not an "employee" within the meaning of the Workers' Compensation Act (Act).

At the time Rios was hired, he signed an employment eligibility and verification form required by federal law, attesting that he was an alien authorized to lawfully work in the United States. Rios supplied a social security number and a resident alien number to complete the form. After Rios filed his compensation claim, a special investigator with employer's insurance carrier investigated the situation. The investigator testified that the social security number Rios provided his employer was fraudulent. The social security number was issued in 1959 or 1960 to a person in California who is now deceased. Further, an official from the Immigration and Naturalization Service (INS) informed the deputy commissioner that the resident alien number Rios provided was also fraudulent.

At the hearing, Rios asserted that he should be considered a "legal citizen" at the time he was injured, and, thus, entitled to benefits, because he had married an American citizen. On January 20, 1998, seven months before Rios' injury, he married Juanita Santos, an American citizen. Additionally, Juanita Santos testified that a couple of weeks after they were married, she submitted paperwork to INS seeking to adjust Rios' alien status. She stated that she had never received a response to her application. She further testified that she submitted another request for adjustment of status the week before the hearing. Rios conceded he did not have any documentation from INS establishing his citizenship or his status as a lawful permanent resident.

II. ANALYSIS

A. Evidentiary and Procedural Issues

We first address Rios' claims of evidentiary or procedural errors because any errors at the hearing might require reversal and remand of the commission's decision without reaching the merits of Rios' claim that he was an "employee" under the Act.

Prior to the deputy commissioner's evidentiary hearing, Rios sought to exclude as inadmissible hearsay the evidence from INS that he had provided a fraudulent alien registration number on his employment eligibility and verification form. Prior to the hearing, INS refused to provide the information to employer, informing employer that the request must come from the commission. Thus, the deputy commissioner, upon employer's request, obtained the information and forwarded it to both counsel for employer and Rios. Rios filed a motion to exclude the evidence and a motion to recuse the deputy commissioner, arguing that the evidence was inadmissible hearsay and had been improperly obtained on employer's behalf through the adversarial efforts of the deputy commissioner.

The deputy commissioner did not err by admitting the INS evidence. The Supreme Court and this Court have repeatedly recognized that hearsay evidence is admissible in workers' compensation proceedings. See Transfer v. Dicks, 229 Va. 548, 555, 331 S.E.2d 449, 453 (1985) (recognizing that commission is not governed by common law rules of evidence); Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958); Derby v. Swift & Co., 188 Va. 336, 341, 49 S.E.2d 417, 419 (1948); CLC Constr., Inc. v. Lopez, 20

542 S.E.2d 792

Va.App. 258, 263 n. 1, 456 S.E.2d 155, 157 n. 1 (1995); Cox v. Oakwood Mining, Inc., 16 Va.App. 965, 969, 434 S.E.2d 904, 907 (1993) (recognizing that commission's rules permit hearsay evidence); see also Rule 2.2, Rules of the Virginia Workers' Compensation Commission. "[R]igid or technical rules of pleading, evidence, or practice in the conduct of hearings shall not apply so long as the procedures adopted protect the substantial rights of the parties." Sergio's Pizza v. Soncini, 1 Va.App. 370, 376, 339 S.E.2d 204, 207 (1986) (citations omitted)

The INS document was provided to Rios and his counsel in advance of the hearing. Rios advances no claim that the document is not authentic or does not reflect the facts as to Rios' situation; in fact, Rios acknowledges that the document is accurate. The evidence was reliable, relevant, and material. The commission did not abuse its discretion by admitting the evidence.

The deputy commissioner did not err by refusing to recuse herself. See Deahl v. Winchester Dep't of Soc. Servs., 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983) (stating that a trial judge's recusal decision is left to the sound discretion of the judge). Rios argues that it was inappropriate for the deputy commissioner to have obtained the information from INS on employer's behalf and then to evaluate the evidence and decide the claim. He asserts that the deputy commissioner took an active role in obtaining critical evidence on behalf of employer, which was detrimental to him.

Hearing officers for administrative agencies, unlike trial judges, customarily and routinely assist in securing and obtaining evidence in cases at the request of the parties. No evidence indicates that the deputy commissioner harbored or demonstrated bias or prejudice against Rios in obtaining information from another governmental agency, INS. The deputy commissioner obtained the information only after employer requested it and was informed by INS that the request must come from the commission. We see little difference between the deputy commissioner informally requesting the evidence from INS and directing a subpoena to INS for the documents. The deputy...