                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


WINCHESTER GOLF CLUB, INC. AND
 ST. PAUL FIRE AND MARINE INSURANCE COMPANY

v.   Record No. 2943-02-4

SYLVIA MARIE SCHENCK                      MEMORANDUM OPINION* BY
                                           JUDGE LARRY G. ELDER
                                               JUNE 17, 2003
SYLVIA MARIE SCHENCK

v.   Record No. 2944-02-4

WINCHESTER GOLF CLUB, INC. AND
 ST. PAUL FIRE AND MARINE INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael E. Ollen (Rhatigan, Ollen,
          Carleton, & Costabile, on briefs), for
          Winchester Golf Club, Inc. and St. Paul Fire
          and Marine Insurance Company.

          R. Craig Jennings (Brandt, Jennings, Snee,
          Dupray & Parrish, PLLC, on briefs), for
          Sylvia Marie Schenck.


     Sylvia Marie Schenck (claimant) and Winchester Golf Club,

Inc., and its insurer, St. Paul Fire and Marine, (hereinafter

collectively employer) both appeal from a decision of the

Workers' Compensation Commission (the commission) holding

employer liable, pursuant to Code § 65.2-713, for $3,000 of the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
attorney's fees incurred by claimant in her efforts to secure

benefits under the Workers' Compensation Act.   On appeal,

claimant contends employer defended her claim without reasonable

grounds and that the commission should have held employer

responsible for the entire amount of her attorney's fees. 1

Employer, by contrast, contends that all disputed issues were

resolved prior to the hearing and, thus, that the award of

attorney's fees constituted an abuse of discretion.   We hold the

record supported employer's payment of a fee in the amount

ordered, and we affirm.

     Code § 65.2-713 provides in relevant part as follows:

               A. If the Commission or any court
          before whom any proceedings are brought or
          defended by the employer or insurer under
          this title shall determine that such
          proceedings have been . . . defended without
          reasonable grounds, it may assess against
          the employer or insurer . . . the whole cost
          of the proceedings, including a reasonable
          attorney's fee, to be fixed by the
          Commission.

               B. Where the Commission finds that an
          employer or insurer has delayed payment
          without reasonable grounds, it may assess

     1
       On brief on appeal, claimant seeks "at a minimum the
reinstitution of the [deputy's] larger [fee] award [of $5,000],
or payment of all fees and costs incurred," presumably meaning
the $8,933.28 in fees and costs for which claimant had submitted
a fee statement to the commission. However, pursuant to the
commission's authority under Code § 65.2-714 to approve all
attorney's fees, the commission concluded that $5,000 was a
reasonable fee for the work performed by claimant's attorney,
without regard to who might be responsible for that fee.
Claimant's counsel provides no argument as to why a total fee of
$5,000 is inappropriate or an abuse of discretion. Thus, we do
not consider this issue on appeal.

                              - 2 -
           against the employer or insurer the whole
           cost of the proceedings, including a
           reasonable attorney's fee to be fixed by the
           Commission. . . .

"[W]hether the employer defended a proceeding without reasonable

grounds is to be judged from the perspective of the employer,

not the employee."   Lynchburg Foundry Co. v. Goad, 15 Va. App.

710, 716, 427 S.E.2d 215, 219 (1993).

     Assessment of fees is proper where a claimant obtained the

assistance of counsel to request a hearing due to the employer's

unilateral decision to withhold benefits due under an open

award.   See Murphey v. Xerox Corp., No. 187-61-8, 2001 WL

1169778, at **7 (Va. Workers' Comp. Comm'n Sept. 21, 2001).

Assessment of fees also is proper where the carrier

unjustifiably suspended payment for medical treatment and then

reinstated such payments one day prior to a scheduled hearing.

Nuske v. Campbell County Sch. Bd., No. 607-346, 1981 WL 182099,

at *1 (Va. Worker's Comp. Comm'n June 16, 1981) (decided under

§ 65.1-101).   Whether the employer or carrier authorized or

suspended treatment with a particular physician is an issue that

may be open to dispute on the facts of a particular case.      See,

e.g., Flanegin v. Hechingers Corp., No. 170-42-20, 1996 WL

1075861, at **3 (Va. Workers' Comp. Comm'n July 9, 1996).

     Further, as indicated by the legislature's use of the word

"may" in Code § 65.2-713, the commission is not required to

assess costs and attorney's fees in every case in which the


                               - 3 -
employer delays payment or defends a proceeding without

reasonable grounds.   See, e.g., Volvo White Truck Corp. v.

Hedge, 1 Va. App. 195, 200-01, 336 S.E.2d 903, 906 (1985)

(decided under predecessor statute, § 65.1-101).   Whether to

assess fees or costs rests in the sound discretion of the

commission and will be reversed only for an abuse of that

discretion.   Id.

     Here, on the afternoon prior to the hearing, employer

conceded all disputed issues except its liability for (1) cab

fare to and from claimant's place of employment, (2) expenses

for claimant to travel from her new home in Hawaii to attend a

medical appointment in Baltimore, Maryland, and (3) attorney's

fees and costs based on its claimed "unreasonable delay in

defense of [the] matter."    The deputy commissioner found in

claimant's favor on all disputed issues and awarded her

attorney's fees of $5,000.   On review, the commission held that

employer did not "unreasonably defend all of the claimant's

numerous claims" and ordered employer to pay $3,000 of the

$5,000 fee.   It found that employer's repeated late payment of

temporary partial disability benefits due under an outstanding

award, even after the entry of two prior penalty awards based on

late payment, "was responsible to some extent for the

litigation" and that "the insurer was not as responsive to the

claimant's request for authorization [for medical treatment] and

a panel [of Hawaiian physicians] as it should have been."

                                - 4 -
However, it found the record failed to establish that employer

unreasonably delayed payment for medical treatment, ground

transportation to obtain that medical treatment, or airfare to

obtain medical treatment or to attend the hearing before the

deputy commissioner.

     A careful review of the record, viewed from the perspective

of the employer, confirms that credible evidence supports the

commission's findings and order that employer pay $3,000 of

claimant's attorney's fees for unreasonably defending and

delaying payment.   Thus, we hold the commission did not abuse

its discretion, and we affirm the award.

                                                         Affirmed.




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