                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


JOSE LUIS ARVIZU
                                                OPINION BY
v.   Record No. 2651-01-2               JUDGE JAMES W. BENTON, JR.
                                             AUGUST 13, 2002
ARCHIE D. GOLD AND
 SOUTHERN INSURANCE COMPANY
 OF VIRGINIA


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Brian J. Cusce for appellant.

          Linda M. Gillen (Blair Law Offices, on
          brief), for appellees.


     The sole issue presented by this appeal is whether the

Workers' Compensation Commission exceeded its authority in

ordering an employee to execute a release authorizing his

employer's attorney, and anyone authorized by his employer's

attorney, to obtain from the Social Security Administration

information concerning the employee.    We reverse the

commission's order.

                              I.

     Jose Luis Arvizu sustained an injury by accident while

employed by Archie D. Gold as a drywall worker.    The commission

approved a memorandum of agreement and entered an award granting

Arvizu temporary total disability benefits beginning October 6,

2000 and continuing medical benefits.     The record indicates that
on April 17, 2001, Arvizu notified the commission and his

employer that his physician had released him to return to work

on restricted duties, and Arvizu sent them several medical

related reimbursement claims.   The employer, however, filed an

application for hearing under Rule 1.4, alleging that Arvizu had

refused medical treatment.   In response to the employer's

application for hearing, Arvizu filed a motion objecting to

suspension of his benefits and "request[ing] . . . reinstatement

of benefits."

     During this time, the employer served upon Arvizu requests

for admissions and requests for production of documents.

Responding to the requests for admissions, Arvizu denied he was

a citizen of the United States and replied that he did not have

"sufficient knowledge or factual basis to determine whether [he]

was legally eligible for employment on September 28, 2000," the

date of his injury.   In response to a request to admit or deny

that a specific social security number was valid and assigned to

him by the Social Security Administration, Arvizu replied that

he did "not have sufficient knowledge or factual basis to

determine the validity of the social security number" and that,

when he "started working for Archie Gold, . . . [he] believed

the social security card had been assigned to him."   Responding

to the employer's request to produce his social security card,

alien registration card, and employment authorization card,

Arvizu replied that he could not find them.

                                - 2 -
     The employer filed with the commission a motion to compel

responsive answers and a second request for the production of

documents.    The employer's second request for production of

documents asked Arvizu to "[p]roduce a statement from the Social

Security Administration detailing your work status in the United

States on September 28, 2000."    Accompanying this request was an

"Authorization for Release of Social Security Information,"

which states as follows:

             I, Jose Luis Arvizu, SS#[number deleted],
             hereby request and authorize the Social
             Security Administration, if requested by
             Linda M. Gillen, Esquire, to furnish her or
             anyone designated in writing by her, all
             records and documentation and any other
             information that she may request pertaining
             to my employment status in the United
             States. Linda M. Gillen shall retain the
             original signed copy of this Release in her
             records. A true and correct copy shall be
             considered sufficient authorization of the
             release of all records or information.

     The deputy commissioner denied the employer's motion to

compel further responses to the initial requests for admissions

but ordered Arvizu "to respond to Employer's Second Request for

Production of Documents and to execute the Release of Social

Security Information within the time proscribed."    Arvizu

responded to the second request for production of documents by

delivering to the commission and employer's attorney a copy of a

letter his attorney sent to the Social Security Administration.

In pertinent part, that letter is as follows:



                                 - 3 -
             Please be advised I represent Mr. Arvizu
          in his claim for workers' compensation
          benefits before the Virginia Workers'
          Compensation Commission. Mr. Arvizu is
          requesting a detail or letter regarding his
          work status on September 28, 2000.

             I have enclosed a Designation of
          Representation form and a Release of
          Information form for your file in order to
          obtain the requested information. Thank you
          for your cooperation and assistance in this
          matter.

Arvizu filed a request for review, however, of the deputy

commissioner's order that he execute a release authorizing

employer's attorney to obtain information from the Social

Security Administration.

     On its review, the commission found that the employer was

clearly concerned with Arvizu's eligibility to work in the

United States and ruled that Code § 65.2-709 authorizes the

commission to "require [Arvizu] to obtain and to present

evidence of filing for certain social security benefits when

that information is relevant to a claim for workers'

compensation benefits."    Holding that "a determination of

[Arvizu's] status as a legal alien is a relevant issue," the

commission affirmed the deputy commissioner's decision to

require Arvizu to sign the release.

                                 II.

     Arvizu contends the commission's order, requiring him to

execute the release, exceeded the commission's statutory

authority and violated his right to retain counsel of his

                                - 4 -
choice.   The employer responds that the commission "clearly has

the authority" to order Arvizu to provide evidence of his legal

employment status or, alternatively, to sign a release

authorizing the employer to obtain it.

     Citing Code § 65.2-502, the employer asserts that it

"obviously had an interest in determining [Arvizu's] lawful

employment status."   That statute provides as follows:

           [T]he employer shall not be required to pay,
           or cause to be paid, compensation under this
           section to any injured employee not eligible
           for lawful employment; nor shall any such
           injured employee not eligible for lawful
           employment who is partially incapacitated be
           entitled during partial incapacity to
           receive temporary total benefits under
           § 65.2-500.

Code § 65.2-502.   Notwithstanding the employer's interest in

learning Arvizu's employment status, the issue presented by this

appeal is whether the commission had the authority to order the

release as a method of obtaining the information.

     The statute upon which the commission relied for authority

to order Arvizu to execute the release states in pertinent part

as follows:

           The Commission may require the claimant to
           present evidence of filing for Federal
           Old-Age Survivors and Disability Insurance
           benefits in order to establish eligibility
           under this section and also may require the
           claimant to furnish the employer with the
           decision on his claim for such federal
           benefits.

Code § 65.2-709(B) (emphasis added).


                               - 5 -
     Nothing within this statutory provision purports to give

the commission the authority to order Arvizu to sign a release

authorizing the employer to obtain information from the Social

Security Administration.    The plain language of the statute only

authorizes the commission to require an employee to present

evidence to the commission or the employer.    The employer points

to no other statute or rule which would authorize the commission

to order the release the employer requested.

                                III.

     Because this matter arose in the context of a discovery

dispute, we next look to the scope of the commission's discovery

rules.   Discovery proceedings in the commission are authorized

by the following statute:

           A. Any party to a proceeding under this
           title may serve interrogatories or cause the
           depositions of witnesses residing within or
           without the Commonwealth to be taken, the
           costs to be taxed as other costs by the
           Commission. All interrogatories,
           depositions, or any other discovery shall
           conform to rules governing discovery
           promulgated by the Commission.

           B. The Commission shall adopt rules
           governing discovery conforming as nearly as
           practicable to Part Four of the Rules of the
           Virginia Supreme Court. Such rules shall be
           adopted in accordance with and pursuant to
           the Administrative Process Act (§ 9-6.14:1
           et seq.).

Code § 65.2-703.

     Pursuant to this statutory authorization, the commission

has adopted rules of discovery permitting "written deposition,

                                - 6 -
interrogatories to parties, production of documents or things,

requests for admission, inspection of premises or other means of

inquiry approved by the Commission."     Rule 1.8(A), Rules of the

Virginia Workers' Compensation Commission.    The commission's

rules also contain the following provisions for failure to make

discovery:

             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.

Rule 1.8(K), Rules of the Virginia Workers' Compensation

Commission.

     These rules do not expressly authorize the ordering of a

release such as occurred in this case.    Although the commission

has been directed to adopt rules "conforming as nearly as

practicable to Part Four of the Rules of the Virginia Supreme

Court," Code § 65.2-703, we perceive nothing in the Supreme

Court's Rules or its decisions interpreting those Rules that

                                 - 7 -
purports to authorize this type of order as a permissible

discovery method or sanction for failure to provide discovery.

     "We [have held] that the commission has the same authority

as a court to punish for noncompliance with its discovery

orders."    Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278, 430

S.E.2d 712, 717 (1993).   We have also held that "[i]n addition

to its statutorily granted powers, the commission . . . has

incidental powers which are reasonably implied as a necessary

incident to its expressly granted powers for accomplishing the

purposes of the Workers' Compensation Act."      Bader v. Norfolk

Redev. & Hous. Auth., 10 Va. App. 697, 702, 396 S.E.2d 141, 144

(1990).    Nonetheless, the employer points to no decision of the

Supreme Court or this Court and cites no statute that could be

interpreted to authorize the commission to order an employee to

execute a release authorizing the employer's attorney to obtain

from the Social Security Administration information concerning

that employee.

     It appears the commission addressed a similar discovery

matter in Singleton v. Fairfax Hospital Association, 68 Va. WC

226 (1989).   There, "[t]he claimant . . . , by counsel, declined

to sign a records release form offered by the employer and

intended to obtain, for the benefit of the employer, information

from the Social Security Administration concerning claimant's

medical records."    Id. at 226.    Although the commission ruled

that the records were not "relevant" to the issue of disability

                                   - 8 -
before it, the commission also ruled that the claimant "is not

required by statute or rule or by Code § 65.1-99.1 [now Code

§ 65.2-709(B)] to sign an authorization which will permit the

employer to obtain her federally-protected Social Security

records."    Id. at 228.   Recognizing that social security records

could be at issue if the claimant sought cost of living

supplements, the commission noted, however, the absence of "a

discovery application by the employer directed to the claimant

for the purpose of obtaining the . . . information [by other

means]."    Id.

     In short, the record indicates that in response to the

employer's second request for production of documents, Arvizu

responded that he had filed a request with the Social Security

Administration for his records.    Significantly, before ordering

Arvizu to sign the release, the commission did not order Arvizu

to produce for inspection documents from the Social Security

Administration he had the power to obtain.     See id.   The

employer, therefore, has not provided any clear indication the

commission's decisions or its discovery rules would permit the

type of order entered in this case requiring Arvizu to execute a

release permitting the employer to obtain his social security

records.

                                 IV.

     Citing Powell v. Alabama, 287 U.S. 45 (1932); Texas

Catastrophe Property Ins. Assoc. v. Morales, 975 F.2d 1178,

                                 - 9 -
1180-81 (5th Cir. 1992); Mitchell v. Johnson, 701 F.2d 337, 351

(5th Cir. 1983); Potashnick v. Port City Constr. Co., 609 F.2d

1101, 1117 (5th Cir. 1980), Arvizu also contends that the order

violates his right to counsel of his choice.   We disagree.   None

of those cases remotely suggest that a release signed by one

party to a dispute, which directs a third entity to deliver

documents concerning that party to the other contesting party,

is an infringement of the right to counsel.

                               V.

     Because we find no authority permitting the commission to

order Arvizu to sign a release authorizing the employer to

obtain Arvizu's records from the Social Security Administration,

we reverse the commission's decision.   In so ruling, we

specifically note that at oral argument references were made to

the status of the proceedings and the recourse available to the

parties.   Although the appendix filed by the parties includes

letters sent by the employer's attorney in May and June of 2001,

those letters are not in the record.    The record of this case,

which was certified to this Court by the commission on October

25, 2001, does not contain a physician's statement that Arvizu

was able to return to his pre-injury employment, an agreement

terminating Arvizu's wage loss award, or a request by the

employer to withdraw its application for hearing.   Furthermore,

the record does not indicate the commission ever entered orders

acting upon Arvizu's motion to reinstate his benefits that were

                              - 10 -
suspended by operation of Rule 1.4, approving the termination of

the wage loss award, or removing from its hearing docket the

employer's application for a hearing.   The absence of these

documents in the record cannot be repaired by the statements

made at oral argument concerning the status of the proceedings

below.   Indeed, the record suggests those matters are still

pending.   Moreover, the commission has clearly ruled in Craft v.

Commercial Courier Express, Inc., 78 Va. WC 270, 272-73 (1999),

that an open award, which can even be an "ongoing award for

medical benefits[,] constitutes an 'issue' or 'proceeding'

before the commission as those terms are used in Commission Rule

1:8 and in . . . Code § 65.2-703."

     For these reasons, we reverse the commission's order, and

we remand this matter to the commission for reconsideration of

the employer's motion to compel discovery, to determine whether

its discovery rules were violated, and for any other action

appropriate to the proceedings pending before it.

                                                        Reversed.




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