Sergio's Pizza v. Soncini, 0687-85

• Docket Nº: No. 0687-85
• Citation: 1 Va.App. 370, 339 S.E.2d 204
• Case Date: January 21, 1986
• Court: Court of Appeals of Virginia

Page 204

339 S.E.2d 204 1 Va.App. 370 SERGIO'S PIZZA and Hartford Casualty Insurance Co.
v.
Julia Norma SONCINI. Record No. 0687-85. Court of Appeals of Virginia. Argued Sept. 11, 1985.
Decided Jan. 21, 1986.

Page 205

[1 Va.App. 371] Peter C. Manson, Jr. (Pender & Coward, Virginia Beach, on brief), for appellants.

No brief or argument for appellee.

Present: COLEMAN, DUFF and HODGES, JJ.

COLEMAN, Judge.

This workers' compensation appeal raises the novel question whether the Industrial Commission has authority at the review stage to modify an application for benefits from injury or occupational disease to a request for review on change of condition. The employer, Sergio's Pizza, and its carrier, Hartford Casualty Insurance Company (collectively, employer), contend that the Commission's action resulted in a determination of the employee's claim without affording them proper notice and a reasonable opportunity to defend. The employer complains that at the hearing before the deputy commissioner it defended a claim [1 Va.App. 372] for an original injury under Code § 65.1-85, but on review before the Commission, the inquiry became whether there had been a change of condition under Code § 65.1-99, ¹ which it had no opportunity to defend.

The Supreme Court of Virginia in Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 270 S.E.2d 723 (1980), was confronted with strikingly similar facts and issues. The legal principles enunciated in Oak Hill will serve as the basis for resolution of the issue now before us, but the procedural differences in the present case are significant and compel a different result. The employee in Oak Hill received a compensable injury to her wrist diagnosed as "tenosynovitis" for which temporary total benefits were paid under a memorandum of agreement. Upon termination of benefits, the Commission informed the employee that her claim could be reopened if further disability resulted. Several months later she experienced wrist pain while performing a job-related task, and by personal letter informed the Commission of the incident and of her doctor's advice that she not work. The employer had filed an employer's first report of accident shortly after being informed of the "second injury." The Commission treated the claimant's letter as an original application. At the hearing before the deputy commissioner, the Commission consolidated the claim with the earlier file for which benefits had been terminated, and, although the claimant's letter was initially treated as an original application, the deputy commissioner considered the claim as a review on change of condition and awarded further compensation benefits. Id. at 415, 270 S.E.2d at 725.

On review, the full Commission affirmed and ruled that even though the claim was initially treated as an original application, consolidation with the original claim at the hearing stage gave the [1 Va.App. 373] employer sufficient notice for the claim to have been treated as one for a change of condition of the earlier compensable injury. Id. at 415-416, 270 S.E.2d at 725-26.

On appeal, the Supreme Court affirmed, emphasizing that the procedure adopted by the Commission of consolidation of the claims at the hearing level satisfied the minimal due process requirements of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The employer had notice of the time, location and subject matter of the proceeding which was reasonably calculated to afford the employer an opportunity to be heard. The Court approved the Commission's

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consolidation of the claims, finding it to be "a matter within its discretion" and compatible with a "longstanding approved workmen's compensation practice that all possible relevant aspects of a matter be considered and determined in one hearing proceeding." ² Oak Hill, 221 Va. at 415, 270 S.E.2d at 725. The Court found no prejudice to the employer because consolidation of the claims not only gave the employer adequate notice of the issues to be defended, but also gave the employer advance knowledge of the medical evidence to be presented. Id. at 417, 270 S.E.2d at 726-27.

By comparison, in the present case, Julia Norma Soncini (claimant), employed as manager of Sergio's Pizza, sustained a compensable burn injury to her right hand on July 19, 1984. She developed a staph aureus infection characterized by a swollen erythemateous right arm with lymphangitis for which she was hospitalized two days. Claimant testified that during her hospitalization on August 5, she first experienced pain in her right forearm and elbow. On August 21, her treating physician detected no swelling or tenderness or lymphangitis; he stated that claimant's pain in the area of the right elbow was an inflammatory "reaction" over the lateral epicondyle for which he administered butazoldin. The attending physician's medical reports indicate [1 Va.App. 374] that claimant continued to experience pain in the right elbow which was diagnosed as "tennis elbow." Claimant was released to pre-injury employment on...