                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


WALTER EVERETT CHILDRESS
                                           MEMORANDUM OPINION* BY
v.   Record No. 1240-00-3                   JUDGE ROBERT P. FRANK
                                              JANUARY 16, 2001
APPALACHIAN POWER COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Walter E. Childress, pro se.

            Richard D. Lucas (Carter, Brown & Osborne,
            P.C., on brief), for appellee.


     Walter Everett Childress (claimant) appeals the decision of

the Workers' Compensation Commission to dismiss his request for

review.   On appeal, he contends the commission:   1) denied him

due process of law by not permitting a hearing on his

application for hearing filed on February 8, 2000; 2) denied him

due process of law by not permitting him to conduct discovery

after he filed his application for hearing on February 8, 2000;

3) abused its discretion in ruling that he is not entitled to a

twenty percent penalty from employer despite employer's error in

mailing his compensation benefits to the wrong address and that

the commission erred as a matter of law in reaching that

determination; and 4) abused its discretion in ruling he is not

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
entitled to a twenty percent penalty from employer despite the

employer's error in waiting more than fourteen days after the

entry of an order by this Court before mailing his compensation

benefits and that the commission erred as a matter of law in

reaching that determination.    We disagree and affirm the ruling

of the commission.

                          I.    BACKGROUND

     Claimant was employed by employer on January 27, 1985, when

he suffered a compensable injury to his back.    On January 4,

1995, employer filed an application for hearing.    The

application was heard by a deputy commissioner on April 9, 1997.

The full commission upheld the deputy commissioner's ruling in

part and reversed in part.     Claimant appealed the commission's

decision to this Court and employer assigned cross-error.    On

December 22, 1998, this Court issued an opinion affirming the

commission's opinion in part and reversing the commission's

opinion in part.   Claimant petitioned for a rehearing before the

three-judge panel and for a rehearing en banc.

     Employer maintained it mailed claimant a benefit check on

January 5, 1999, after reviewing the opinion released by this

Court on December 22, 1998.    Claimant alleged employer did not

mail the check until January 7, 1999, which violated the

fourteen-day period permitted for payment pursuant to Code

§ 65.2-524.



                                 - 2 -
        Claimant's petitions for rehearing by the three-judge panel

and rehearing en banc were denied by this Court on January 29,

1999.    Claimant filed a petition of appeal to the Supreme Court

on February 26, 1999.    The Supreme Court dismissed the petition

of appeal on June 22, 1999.    This Court returned its mandate to

the commission on June 23, 1999.      The commission entered this

Court's mandate on June 29, 1999.

        On February 9, 1999, claimant, by counsel, requested that

the commission assess a twenty percent penalty on employer for

failure to pay claimant in a timely manner following the opinion

issued by this Court on December 22, 1998.     On February 8, 2000,

claimant filed an application for hearing with the commission

for a hearing on the twenty percent penalty.     On March 1, 2000,

a claims examiner for the commission declined to entertain

claimant's request for the twenty percent penalty.     Claimant

filed a request for review, which was denied by the commission,

by opinion, on April 25, 2000.      Claimant then filed the current

appeal with this Court.

                             II.   ANALYSIS

        We first address claimant's contention that the commission

erred in ruling he is not entitled to a twenty percent penalty

from employer despite employer's error in waiting more than

fourteen days after entry of the December 22, 1998 order by this

Court before mailing claimant's compensation benefits.     We

disagree.

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     Code § 65.2-524 states:

               If any payment is not paid within two
          weeks after it becomes due, there shall be
          added to such unpaid compensation an amount
          equal to twenty percent thereof, unless the
          Commission finds that any required payment
          has been made as promptly as practicable and
          (i) there is good cause outside the control
          of the employer for the delay or (ii) in the
          case of a self-insured employer, the
          employer has issued the required payment to
          the employee as a part of the next regular
          payroll after the payment becomes due. No
          such penalty shall be added, however, to any
          payment made within two weeks after the
          expiration of (i) the period in which
          Commission review may be requested pursuant
          to § 65.2-705 or (ii) the period in which a
          notice of appeal may be filed pursuant to
          § 65.2-706. No penalty shall be assessed
          against the Commonwealth when the
          Commonwealth has issued a regular payroll
          check to the employee in lieu of
          compensation covering the period of
          disability.

     Code § 65.2-706(C) states:

               Cases so appealed shall be placed upon
          the privileged docket of the Court of
          Appeals and be heard at the next ensuing
          term thereof. In case of an appeal from the
          decision of the Commission to the Court of
          Appeals, or from the decision of the Court
          of Appeals to the Supreme Court, the appeal
          shall operate as a suspension of the award
          and no employer shall be required to make
          payment of the award involved in the appeal
          until the questions at issue therein shall
          have been fully determined in accordance
          with the provisions of this title.

Therefore, Code § 65.2-706(C) operates to suspend the

fourteen-day period set forth in Code § 65.2-524 until the

issues in the appeal have been "fully determined."


                               - 4 -
     While employer argues it mailed the benefit check on

January 5, 1999, and claimant argues the check was not mailed

until January 7, 1999, this factual determination is not

relevant to the legal question of whether the issues on appeal

have been "fully determined" pursuant to Code § 65.2-706(C).

     Employer argues the issues in an appeal have not been

"fully determined" until the mandate of this Court is entered by

the Clerk of the Commission in the commission's order book.

However, we need not address employer's contention because, for

the purposes of this opinion, the earliest date that this Court

could have issued a mandate, which would have fully determined

the issues on appeal, was January 29, 1999, when this Court

denied claimant's petitions for rehearing.    Therefore, the

earliest date on which employer would have been required to make

payment to claimant was fourteen days after January 29, 1999.

Clearly, by mailing the benefit check either on January 5, 1999

or January 7, 1999, employer was early in its payment to

claimant and no penalty applied.

     Claimant next contends he was denied due process because

the commission did not hold a hearing on his request for the

twenty percent penalty against employer.   We disagree.

     "Where a question of law is all that needs to be resolved

it has often been held that the requirements of procedural due

process are met where the party seeking review has the

opportunity to state his views in writing."    James v. Arlington

                              - 5 -
County Bd. of Supervisors, 226 Va. 284, 290, 307 S.E.2d 900, 903

(1983).    In James, the Supreme Court adopted the reasoning of a

federal case, Pan American Petroleum Corporation v. Federal

Power Commission, 322 F.2d 999 (D.C.Cir. 1963), where the

petitioner claimed it was denied due process because the Federal

Power Commission resolved a question of law without holding a

hearing.   226 Va. at 290, 307 S.E.2d at 903.    The Supreme Court

relied on the federal court's reasoning that "'[t]he

requirements of procedural due process were satisfied by the

opportunity to submit written evidence and written argument.'"

Id. (quoting Pan American Petroleum Corp., 322 F.2d at 1005).

The Supreme Court also cited another federal case, Mississippi

River Fuel Corp. v. Federal Power Commission, 281 F.2d 919

(D.C.Cir. 1960), where the petitioner "claimed that it was

denied due process because it did not receive an opportunity to

make oral argument."      James, 226 Va. at 290, 307 S.E.2d at 903.

The Supreme Court noted that the federal court did not find the

petitioner's argument persuasive and reasoned that because the

issue before the court was a question of law, oral argument was

not necessary.     Id.   In explaining the holding in Mississippi

River Fuel Corp., the Supreme Court wrote that "the petitioner's

'interpretation was plainly stated in its letter to the

Commission, and later in briefs submitted on its petition for

rehearing.'"     Id.



                                  - 6 -
     In this case, the issue before the commission was whether

the questions at issue in the case were "fully determined"

pursuant to Code § 65.2-706 so as to make payment due.    This

question was one of law independent of any factual finding.

Claimant filed a request for review after receiving the letter

from the claims examiner and filed a sixteen-page brief and

eleven exhibits arguing his position that the twenty percent

penalty should be assessed against employer.   The commission

addressed each of claimant's arguments in an opinion and

dismissed claimant's petition for review.

     We find that because the issue before the commission was a

matter of law, the commission did not deny claimant due process

by not affording him the opportunity for oral argument.

     Claimant next argues he was denied due process of law

because the commission did not permit him to conduct discovery

after filing his application for hearing on February 8, 2000.

We disagree.

     "[D]iscovery enables 'one party to search the conscience of

his antagonist, and to compel him to make disclosures upon oath

of facts necessary to the preservation of the rights of the

former, which he otherwise might not be able to prove.'"

Johnson v. Mundy, 123 Va. 730, 744, 97 S.E. 564, 568 (1918)

(citation omitted).

     In this case, the issue before the commission was a

question of law, not one of fact.   Therefore, there was no

                              - 7 -
reason for the commission to grant discovery to claimant as

discovery is for the collection of facts.   We, therefore, find

the commission did not deny claimant due process of law in not

permitting him to conduct discovery.

     Claimant next contends the commission erred in ruling he is

not entitled to a twenty percent penalty from employer despite

employer's error in mailing his compensation benefits to the

incorrect address.   We again disagree.   Because claimant

acknowledged he received the first payment from employer on

January 11, 1999, we find this issue without merit.

     For these reasons, we affirm the award of the commission.

                                                             Affirmed.




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