Sergio's Pizza v. Soncini

Decision Date21 January 1986
Docket NumberNo. 0687-85,0687-85
PartiesSERGIO'S PIZZA and Hartford Casualty Insurance Co. v. Julia Norma SONCINI. Record
CourtVirginia Court of Appeals

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 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 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 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 that claimant continued to experience pain in the right elbow which was diagnosed as "tennis elbow." Claimant was released to pre-injury employment on September 17, with compensation benefits paid for work incapacity to that date, although she was still complaining of elbow pain.

After returning to work at Sergio's, claimant experienced elbow pain while performing her duties. She sought further medical assistance for her elbow complaints, but in late November, she voluntarily terminated her employment for other work. Dr. H. Sheldon St. Clair, an orthopedist, diagnosed her elbow problems as lateral epicondylitis (tennis elbow), with possible posterior interosseous syndrome, "a chronic indolent problem which is related to her work."

On December 11, 1984, the claimant filed an Application for Hearing on the printed form furnished by the Industrial Commission, alleging epicondylitis as her injury or occupational disease and specifying the date of accident as August 29, 1984, while employed with Sergio's. File correspondence between the parties and Commission indicate that from the outset the claim was considered a new application for benefits from a more recent injury or occupational disease. An employer's first report was filed pursuant to Code § 65.1-124. The Commission assigned the claim a new and separate claim number from that of the burn injury of July 19.

Before receiving evidence at the hearing on January 3, the deputy commissioner defined the issue as being the determination of the employee's claim of "occupational disease attributable to her employment with a communication date of August 29, 1984." Significantly, the deputy commissioner did not consolidate the present claim for occupational disease with the earlier traumatic burn injury claim, nor did the record reflect that consideration would be or was given to the alternative position that the "tennis elbow" was a compensable aggravation, progression, or complication of the earlier burn injury. In fact, the opinion of the deputy commissioner specifically stated that despite his finding that claimant's "tennis elbow" was not an occupational disease related to her employment at Sergio's, "[w]e make no finding ... whether claimant's lateral epicondylitis is a compensable consequence of her July 20, 1984 right hand burn injury or the subsequent complications and medical treatment for these complications." The opinion noted that the Commission's fifty day limitation 3 of Rule 13 of the Rules of the Industrial Commission would not apply should claimant file a change of condition application for the earlier traumatic injury claim, implying that a change of condition determination remained open for consideration.

On review before the full Commission, the deputy commissioner's finding that the lateral epicondylitis was not a compensable occupational disease was affirmed; however, the Commission reversed the...

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23 cases
  • Vital Link, Inc. v. Hope
    • United States
    • Court of Appeals of Virginia
    • June 19, 2018
    ...is a change in condition of the original injury after the award, a new claim in not required. See Sergio’s Pizza v. Soncini, 1 Va. App. 370, 375, 339 S.E.2d 204, 207 (1986) ("In fact, the Commission is authorized to conduct a review for change of condition on its own motion at any time, sub......
  • Nelson County Schools v. Woodson
    • United States
    • Supreme Court of Virginia
    • May 31, 2005
    ...requirements in administrative proceedings ... are traditionally more informal than judicial proceedings." Sergio's Pizza v. Soncini, 1 Va.App. 370, 376, 339 S.E.2d 204, 207 (1986). Thus, "[w]hile some degree of formality or the use of standardized uniform procedures and forms may be more c......
  • Rios v. Ryan
    • United States
    • Court of Appeals of Virginia
    • March 6, 2001
    ...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 adv......
  • Kmart Management Corporation v. Zelones, Record No. 1482-09-4 (Va. App. 3/30/2010)
    • United States
    • Court of Appeals of Virginia
    • March 30, 2010
    ...of the parties.'" Rios v. Ryan Inc. Central, 35 Va. App. 40, 44-45, 542 S.E.2d 790, 792 (2001) (quoting Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207 (1986)). Because the best evidence rule is inapplicable to the log and because the commission is not bound by the rules......
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