                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


MYRTIS SAMPLE
                                             MEMORANDUM OPINION*
v.   Record No. 2120-02-1                         PER CURIAM
                                              DECEMBER 31, 2002
McDONALDS STORE #04693 AND
 EMPLOYERS INSURANCE OF WAUSAU


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Sidney H. Kelsey, Jr.; Kelsey & Associates,
             P.C., on briefs), for appellant.

             (Robert A. Rapaport; Jennifer G. Tatum;
             Clarke, Dolph, Rapaport, Hardy & Hull,
             P.L.C., on brief), for appellees.


     Myrtis Sample (claimant) contends her due process rights

were violated when (1) the Workers' Compensation Commission held

the March 7, 2002 hearing on employer's application to suspend

benefits in claimant's absence; (2) she suffered ineffective

assistance of counsel with respect to notice because her counsel

violated Rule 1:5 of the Rules of the Supreme Court of Virginia

and Rule 1.16 of Part 6-II, Virginia Rules of Professional

Conduct 1 ; and (3) the proffered evidence attached to her brief


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Claimant did not argue that her attorney violated Rules
1:5 and 1.16 before the commission. Accordingly, we will not
address that argument on appeal. See Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987);
Rule 5A:18.
would have demonstrated that she had a defense to employer's

application had she been given the opportunity to prepare her

defense or employ new counsel.   Upon reviewing the record and

the parties' briefs, we conclude that this appeal is without

merit.   Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

            "Due process is flexible and calls for such
            procedural protections as the particular
            situation demands." It is well settled that

                 [a]n elementary and fundamental
                 requirement of due process in any
                 proceeding which is to be accorded
                 finality is notice reasonably
                 calculated, under all the
                 circumstances, to apprise
                 interested parties of the pendency
                 of the action and afford them an
                 opportunity to present their
                 objections.

            "Pleading requirements in administrative
            proceedings before [the commission] are
            traditionally more informal than judicial
            proceedings." However, the commission must
            use procedures that "afford the parties
            minimal due process safeguards."

WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227, 494 S.E.2d

147, 150 (1997) (citations omitted).

     In rejecting claimant's argument that she was denied due

process because she was unaware of the March 7, 2002 hearing,

and unaware of her attorney's withdrawal from the case prior to

the hearing, the commission found as follows:

            [C]laimant's official address of record
            appears to be, and seems to have
            consistently been, Post Office Box 564,
                             - 2 -
Painter, Virginia 23420. This is the
address to which all Commission
communications have been sent, and the
address to which the employer's vocational
rehabilitation specialist posted all
communications. Certified mail sent to that
address has been retrieved, regular mail
sent that address has not been returned, and
there is no allegation before us that this
address is in any way deficient.

     Therefore, we presume that the claimant
received independent notice of the
employer's application, filed in July 2001,
and received her own copy of the
Commission's January 17, 2002 Notice of
Hearing - - advising that a hearing was
scheduled for March 17 [sic], 2002. While
the claimant's new attorney suggests that
his client was unaware of the hearing, there
is no allegation that his client did not
receive the Commission's notice, and no
explanation for her lack of notice if she
did, in fact, receive her copy of the
Commission's Notice of Hearing.

     While we understand that the claimant
may have had a difference of opinion with
her prior attorney, it fails to justify her
failure to communicate with the Commission
prior to the hearing on March 7, 2002. It
is apparent from the written statements
before us that the claimant and her prior
counsel decided to part ways at least
several days - - and perhaps much longer - -
before the scheduled hearing. Despite
receiving the Commission's Notice of Hearing
in January advising of the hearing in March,
the claimant apparently did not attempt to
retain other counsel, or seek a continuance
to do so, prior to the hearing. Under those
circumstances, a continuance would almost
certainly have been granted.

     We also note that the claimant has
failed to proffer any evidence, or advance
any argument that she might have brought
forth at the hearing to defend against the
employer's application. . . . Therefore,
                 - 3 -
            the Commission has no basis from which to
            conclude that the claimant was in any way
            prejudiced by holding the evidentiary
            hearing in her absence.

     Based upon these findings, the commission held that

claimant's assertion that she lacked notice of the hearing was

not credible and that she failed to prove she was prejudiced by

the deputy commissioner's denial of a new hearing.      The

commission concluded, "claimant fired her counsel three or four

days before the hearing, failed to contact the Commission,

failed to ask for a continuance and failed to appear at the

hearing."

     Credible evidence supports the commission's findings.

Based upon this record, the commission could reasonably infer

that claimant had notice of the March 7, 2001 hearing when she

fired her attorney a few days before the hearing.    Thus,

claimant was provided with "minimal due process safeguards" by

being given notice and an opportunity to appear and be heard on

March 7, 2001.   She did not avail herself of that opportunity.

Moreover, she failed to proffer evidence to the commission to

establish that she suffered prejudice due to holding the hearing

on March 7, 2001 in her absence.     We will not consider such a

proffer for the first time on appeal.     See Rule 5A:18.

     For these reasons, we affirm the commission's decision.

                                                              Affirmed.



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