                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia


CURTIS LEON TAYLOR, SR.
                                                          MEMORANDUM OPINION * BY
v.     Record No. 2923-03-1                           CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                APRIL 27, 2004
MJRW, INC. AND
TIG PREMIER INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

              Curtis Leon Taylor, Sr., pro se.

              Mark A. Stallings (Carr & Porter LLC, on brief), for appellees.


       Curtis Leon Taylor, Sr. (claimant) contends the Workers’ Compensation Commission

(commission) abused its discretion by dismissing without prejudice his Claim for Benefits

pursuant to the sanctions provisions of Rule 1.12 of the Rules of the Workers’ Compensation

Commisson. For the reasons that follow, we affirm the commission’s decision.

                                                 I.

       We view the evidence in the light most favorable to the employer, who prevailed below.

See Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The

commission’s factual findings are conclusive and binding on this Court when those findings are

based on credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989); Code § 65.2-706.

       The record reflects that claimant alleged a compensable accident occurred on March 20,

2001 while he worked at MJRW, Inc. (employer). After the accident and before claimant filed


       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
his initial claim for benefits on May 31, 2001, he was incarcerated for a term of approximately

ten years. His expected release date is December 2011. A hearing was scheduled for September

11, 2001. Claimant and carrier propounded discovery pursuant to Rule 1.8. On August 9, 2001,

claimant requested a continuance of the hearing because he was incarcerated and unable to

obtain transportation to the hearing. On August 16, 2001, the deputy commissioner denied

claimant’s request for a continuance and ordered him to respond to the carrier’s discovery.

Claimant failed to respond and, accordingly, his claim was dismissed without prejudice for the

first time on August 27, 2001. Claimant appealed the dismissal of his claim and filed a second

Claim for Benefits. On February 2, 2002, the commission affirmed the deputy commissioner’s

dismissal of the first claim.

        Claimant and carrier propounded discovery on the second Claim for Benefits, and a

hearing was scheduled for July 9, 2002. Claimant again failed to respond to carrier’s discovery

and did not appear at the July 9, 2002 hearing. The deputy commissioner dismissed his claim

with prejudice. Claimant appealed that dismissal and on January 24, 2003, the commission

amended the deputy commissioner’s decision to reflect a dismissal of that claim without

prejudice.

        On February 10, 2003, claimant filed his third Claim for Benefits. Again, claimant and

carrier propounded discovery. On April 14, 2003, the deputy commissioner ordered the carrier

to provide claimant the transcript of his recorded interview. On April 21, 2003, claimant

requested more documents. On April 25, 2003, claimant filed a Motion to Suppress the recorded

interview. On May 5, 2003, the deputy commissioner denied claimant’s motion to suppress. On

May 7, 2003, claimant requested a hearing. On June 12, 2003, the carrier propounded another

Request for Production of Documents and one additional Interrogatory. On June 16, 2003, the




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deputy commissioner granted carrier permission to propound the additional interrogatory. On

June 17, 2003, claimant objected to the additional interrogatory.

       On July 1, 2003, the carrier sent another Request for Admissions relevant to the disputed

recorded interview. On July 3, 2003, claimant requested the commission to issue an order

providing him transportation to the hearing and on July 9, 2003, the commission denied that

request. On July 14, 2003, claimant filed a Motion to Suppress the transcript of the recorded

interview. On July 15, 2003, claimant appealed the decision denying him transportation and

requested a continuance until his release from incarceration in 2011. On July 16, 2003, the

deputy commissioner notified claimant that his motion to suppress the transcript of the recorded

interview would be addressed at the hearing. On August 21, 2003, the commission affirmed the

denial of the transportation order and conditionally granted claimant’s request for a continuance

of the hearing. The commission stated,

               In the interest of judicial economy, we also grant the claimant’s
               request for a continuance for a reasonable period of time.
               However, it is unreasonable to require the defendants to wait until
               after December 20, 2011, for a hearing. The defendants may
               request that the hearing be rescheduled in a timely fashion. If the
               claimant desires to testify, he should notify the Commission and
               his testimony may be taken by deposition while he is still
               incarcerated. If necessary the testimony may be taken before a
               deputy commissioner.

       On August 29, 2003, the claimant notified the deputy commissioner that he would like to

testify at “any hearings regarding the . . . matter.” On August 26, 2003, the carrier filed a Motion

to Compel claimant’s response to its July 1 Request for Admissions. On August 28, 2003,

claimant objected to carrier’s motion to compel because the deputy commissioner had not ruled

on his July 14, 2003 motion to suppress the recorded interview transcript. On September 2, 2003

the deputy commissioner signed the following order:

                     WHEREAS, the Commission has received from Attorney
               Mark A. Stallings a Motion to Compel the claimant to respond to


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               the defendant’s Request for Admissions propounded on July 1,
               2003; and

                      WHEREAS, the Commission’s discovery rule requires that
               responses be filed within twenty-one days from the date
               propounded; and

                      WHEREAS, it appears to the Commission that the claimant
               may not be represented by counsel and therefore may not have
               been aware of this rule, the Commission will grant the claimant a
               seven day extension of time in which to respond,

                       NOW THEREFORE, the claimant is hereby ORDERED to
               answer the Request for Admissions and to file his responses with
               Mr. Stallings on or before seven days from the date of this Order.
               Failure to respond will result in appropriate sanctions, including
               possible dismissal of the claim.

On September 5, 2003, claimant appealed that order. On October 20, 2003, the commission

dismissed the claim based on claimant’s failure to comply with the deputy commissioner’s

September 3 order and the commission’s August 21, 2003 decision. Claimant appeals that

decision.

                                                II.

       Claimant contends that there is no evidence he failed to comply with the deputy

commissioner’s September 3 order and the commission abused its discretion when it dismissed

his claim. This contention is without merit, and we affirm the commission’s decision.

       “‘“Conclusions of the Commission upon questions of law, or mixed questions of law and

fact, are not binding on [appeal].”’” Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57,

474 S.E.2d 856, 857-58 (1996) (quoting City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337

S.E.2d 901, 903 (1985) (quoting Brown v. Fox, 189 Va. 509, 517, 54 S.E.2d 109, 113 (1940))).

“The Workers’ Compensation Act is to be liberally construed for the benefit of employees . . . .”

Harter, 1 Va. App. at 269, 337 S.E.2d at 903. “The commission’s construction of the Act is

entitled to great weight on appeal.” Cross v. Newport News Shipbuilding and Dry Dock Co., 21



                                               -4-
Va. App. 530, 533, 465 S.E.2d 598, 599 (1996) (citing Harter, 1 Va. App. at 269, 337 S.E.2d at

903).

        Rule 1.8 of the Rules of the Workers’ Compensation Commission provides in pertinent

part:

               A. Scope and Method. – The scope of discovery shall extend only
               to matters which are relevant to issues pending before the
               Commission and which are not privileged. . . . Discovery may be
               obtained by oral or written deposition, interrogatories to parties,
               production of documents or things, requests for admission,
               inspection of premises or other means of inquiry approved by the
               Commission.

               B. Limiting Discovery. – The Commission may limit the
               frequency or extent of discovery if it is unreasonably cumulative,
               duplicative, expensive or if the request was not timely made. The
               Commission will consider the nature and importance of the
               contested issues, limitations on the parties’ resources and whether
               the information may be obtained more conveniently and
               economically from another source.

                         *       *       *      *       *      *       *

               K. Failure to Make Discovery; To Produce Documentary
               Evidence; To Comply With Request for Admission. – A party,
               upon reasonable notice to other parties and all persons affected
               thereby, may request an order compelling discovery as follows:

               A timely request in writing in the form of a motion to compel
               discovery may be made to the Commission or to such regional
               office of the Commission where an application is assigned to be
               heard.

               Failure of a deponent to appear or to testify; failure of a party on
               whom interrogatories have been served to answer; failure of a
               party or other person to respond to a subpoena for production of
               documents or other materials; or failure to respond to a request for
               admission shall be the basis for an order addressing a request to
               compel compliance or for sanctions, or both.

(Emphasis added).

        Rule 1.12 of the Rules of the Workers’ Compensation Commission provides in pertinent

part:


                                               -5-
              Enforcement of the Act and Rules of Commission; Sanctions. – In
              addition to the statutory authority of the Commission to levy fines,
              to assess attorney fees and punish contempt, the Commission may
              enforce its rules and the provisions of the Workers’ Compensation
              Act upon motion of a party, or upon its own motion, after giving a
              party or other interested person the opportunity to be heard, by
              imposition of the following sanctions:

              A. Rejection of a pleading including, but not limited to, all or part
              of a claim and grounds of defense;

              B. Exclusion of evidence from the record;

              C. Dismissal of a claim or application.

(Emphasis added).

       The commission found:

              We find that the claimant has been afforded due process: an
              opportunity to state and prove his claim in a deposition, an
              opportunity to articulate his concerns in writing and an opportunity
              to petition for review of the rulings. We further [find] that he has
              been non-compliant with the Commission’s Orders and directions
              as found in the September 3, 2003, Order and the August 21, 2003,
              Opinion.

                         *      *       *       *       *      *       *

              The Commission is without authority to issue a transportation
              order. See Commonwealth v. Brown, 259 Va. 697, 529 S.E.2d 96
              (2000). Therefore, the claimant cannot travel to a hearing site until
              2011. Although the claimant has requested an opportunity to
              testify at a hearing, he has not availed himself of the opportunity to
              offer his testimony by deposition. The claimant has withheld
              responses to Requests for Admissions because a deputy
              commissioner did not rule on his Motion to Suppress to his
              satisfaction. [E]xtending the time for adjudicating a case (here
              until 2011) impacts on the due process rights of the other party to
              have a case timely adjudicated. We have offered the claimant all
              of the due process available since we cannot transport the claimant.
              For these reasons, we dismiss the claim without prejudice.

       “When a challenge is made to the commission’s construction of its rules, the appellate

court’s review is limited to a determination of whether the commission’s interpretation was

reasonable. The commission’s interpretation will be accorded great deference and will not be set



                                              -6-
aside unless arbitrary or capricious.” Estate of Kiser v. Pulaski Furniture Co., 41 Va. App. 293,

299, 584 S.E.2d 464, 467 (2003) (citing Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119,

129 n.2, 510 S.E.2d 255, 260 n.2 (1999) (citations omitted)). See also Arellano v. Pam E. K’s

Donuts Shop, 26 Va. App. 478, 486, 495 S.E.2d 519, 521 (1998); Specialty Auto Body v. Cook,

14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992); Classic Floors, Inc. v. Guy, 9 Va. App. 90,

93, 383 S.E.2d 761, 763 (1989).

       In the instant case, 1 the claimant was well acquainted with the rules of the commission

regarding discovery and appeal. Claimant filed two prior claims for benefits, multiple motions

and propounded discovery to employer/carrier several times. During the pendency of the third

claim for benefits, claimant also filed multiple motions and appealed several decisions of the

deputy commissioner. In the commission’s August 21, 2003 opinion, it conditionally granted

claimant’s request for a continuance of the hearing because of his inability to appear and testify,

but only for a “reasonable” time. The commission offered the claimant an alternative method of

presenting his case. In the September 3, 2003 order, the deputy commissioner allowed claimant

a seven-day extension of time to respond to employer’s July 1 Request for Admissions rather

than dismissing his claim for benefits at that time. 2 Claimant failed to both designate an

alternative means of providing his testimony and to comply with the deputy commissioner’s



       1
          Claimant also asserts that the commission violated his due process rights for exercising
his right of appeal and relies on two commission cases as allowing his interlocutory appeal.
Neither Handlovitch v. Chesapeake Hosp. 75 O.W.C. 293 (1996), nor Echols v. Rite Aid
Corporation 78 O.W.C. 16 (1999), applies to the facts of this case. While those cases dealt with
interlocutory appeals, the subject of those appeals would have determined the outcome of each
case. These cases are factually inapposite to the instant case, and credible evidence supports the
commission’s actions.
       2
         Claimant’s additional argument that employer did not have permission to file the July 1
discovery is in error. Carrier did not need permission to file additional Requests for Admissions.
Claimant mischaracterizes the July 1 discovery as Interrogatories, which, if they exceed 15,
require commission permission.

                                                -7-
order to respond to the employer’s July 1 Request for Admissions. Accordingly, the record

clearly establishes an adequate basis for the commission to impose the sanction of dismissal

pursuant to Rule 1.12 and, therefore, it did not abuse its discretion.

       We affirm the decision of the commission.

                                                                                       Affirmed.




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