Seneca Falls Greenhouse & Nursery v. Layton, 1696-88-4

• Decision Date: 27 February 1990
• Docket Number: No. 1696-88-4,1696-88-4
• Citation: 9 Va.App. 482,389 S.E.2d 184
• Court: Virginia Court of Appeals
• Parties: SENECA FALLS GREENHOUSE & NURSERY, et al. v. Charles G. LAYTON. Record

Page 184

389 S.E.2d 184

9 Va.App. 482

SENECA FALLS GREENHOUSE & NURSERY, et al. v. Charles G. LAYTON.

Record No. 1696-88-4.

Court of Appeals of Virginia.

Feb. 27, 1990.

Benjamin J. Trichilo (Lewis, Tydings, Bryan & Trichilo, Fairfax, on brief), for appellants.

Lawrence J. Pascal (Ashcraft & Gerel, Washington, D.C., on brief), for appellee.

Present: COLEMAN, DUFF and MOON, JJ.

MOON, Judge.

Seneca Falls Greenhouse & Nursery and Florists Mutual Insurance Company seek reversal of an award of compensation and disability payments to Charles G. Layton. We affirm the award because we find credible evidence to support the commission's decision.

The first issue deals with Rule 2(A) of the Industrial Commission which provides that the request for review "should specify each determination of fact or law to which exception is taken," and must be made within twenty days of the deputy's decision. Appellants argue that the deputy commissioner found that Charles G. Layton was suffering from an ordinary disease of life and did not sustain an injury by accident. Appellants contend that the only issue before the full commission was whether claimant was suffering from a compensable occupational disease.

In claimant's request for review, claimant took exception to the deputy's finding that (1) "the employee's anxiety/panic attack is an ordinary disease of life, and (2) the medical records amply demonstrate that Charles G. Layton's pre-existing panic disorder was aggravated by his work-related exposure to Resmethrin and that Resmethrin did not organically cause Mr. Layton's symptoms but was a result of [a] psycho-organic syndrome."

Appellants argue that this review request did not sufficiently specify an exception to the finding of fact that there was no compensable injury and, therefore, the commission erred in reversing the deputy's finding of fact and in finding that there was a compensable injury. Although Mr. Layton's appeal did not expressly challenge the finding that there was no injury by accident, we find that, in questioning the finding of fact that he suffered an ordinary disease of life, he likewise implicitly questioned the finding that he did not sustain a compensable injury. We hold, therefore, that the full commission did not err by granting Mr. Layton's request for review.

Appellants further argue that the requirement of specificity in Rule 2(A) has been applied without exception to employers and their insurers, but not to claimants. In Ernest Long v. Westmoreland Coal Co., 65 O.I.C. 348 (1986), the commission acknowledged that it did not look upon this rule as being mandatory in all cases because of the rule's use of the word "should" rather than "shall." The commission opined that the word "should" was used in the rule because many claimants appear before it pro se and may be unable to identify the specific legal issues. We do not read Long to be a ruling by the commission that it would not apply the rule to a pro se claimant but would apply it to all other parties. The example given by the commission was only illustrative as to why the rule should not be applied without exception. In Long, the commission did not apply the rule to Long by dismissing the appeal. Rather, because of the failure to comply with Rule 2(A), the commission, as a sanction, refused Long's motion to submit oral or written argument and treated the claim as submitted on the record.

This Court has agreed with the commission's holding in Long that Rule 2(A) does not create an absolute requirement that parties specify each determination of fact or law to which exception is taken. See Brushy Ridge Coal Co., Inc. v. Blevins, 6 Va.App. 73, 78, 367 S.E.2d 204, 206 (1988). We agree, however, with appellants' contention that the rule must be applied equally to all parties irrespective of whether they be claimant or employer/insurer. The Fourteenth Amendment declares that all persons, including corporations, irrespective of status, are entitled to the equal protection of laws. Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, 6 S.Ct. 1132, 30 L.Ed. 118 (1886). Thus, if the Industrial Commission imposes sanctions for the failure to follow the specific provisions of Rule 2(A) dealing with specification of the exceptions, the sanctions may not be applied arbitrarily to parties based upon their position in the case or whether they are represented by counsel.

Appellant cites Classic Floors, Inc. v. Guy, 9 Va.App. 90, 383 S.E.2d 761 (1989), wherein a panel of this Court upheld the Industrial Commission's invocation of Rule 2(A) to bar an insurer's cross appeal which was not filed within 20 days of entry of the order appealed from. However, Guy concerned a different provision of Rule 2(A) than does the present case--the 20 day filing requirement. We have no evidence that the time bar provision is not applied equally and mandatorily to all parties.

If the specificity requirement of Rule 2(A) has not been applied consistently to all persons in the past, irrespective of their position, be they claimant or employer/insurer, the rule, nevertheless, should not be applied to bar Mr. Layton's appeal since we agree with the Industrial Commission that the provisions of Rule 2(A) at issue in this case do not require specification in all cases. In other...