                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Alston and Decker
UNPUBLISHED


              Argued at Richmond, Virginia


              CHESTERFIELD COUNTY PUBLIC SCHOOLS
                                                                                MEMORANDUM OPINION* BY
              v.     Record No. 0069-14-2                                      JUDGE ROBERT J. HUMPHREYS
                                                                                     AUGUST 12, 2014
              LAURA A. PATRICK


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Michael P. Kozak, Senior Assistant County Attorney (Chesterfield
                               County Attorney’s Office, on brief), for appellant.

                               Robert L. Flax (Robert L. Flax, P.C., on brief), for appellee.


                     Chesterfield County Public Schools (“Chesterfield County”) appeals the decision of the

              Virginia Workers’ Compensation Commission (“the commission”) to award temporary partial

              disability benefits to Laura A. Patrick (“Patrick”). Chesterfield County’s argument on appeal is

              that the commission’s decision to award Patrick temporary partial disability benefits denied it

              due process of law because the parties only litigated the issue of temporary total disability

              benefits and it should have been afforded the opportunity to contest a temporary partial disability

              benefits award. For the reasons that follow, we affirm the decision of the commission.

                      While working as a school bus driver for Chesterfield County, Patrick suffered a

              compensable injury on May 29, 2012 from a backwards fall. The commission awarded her

              medical benefits and temporary total disability benefits. On December 27, 2012, Patrick filed an

              amended claim alleging her injuries were actually more severe than anticipated. On January 11,

              2013, Chesterfield County filed an application for a hearing requesting that Patrick’s outstanding


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
temporary total disability award be terminated because she had been released to her pre-injury

work as of January 2, 2013. The commission suspended Patrick’s disability payments pending a

hearing before the deputy commissioner to resolve both Patrick’s amended claim and

Chesterfield County’s application.

       Patrick saw several physicians from the time that she was injured until the hearing before

the deputy commissioner. As of January 2, 2013, Dr. Glick and Dr. McDermott noted that

Patrick was ready for “full release to work without restrictions as a bus driver.” However,

Patrick claimed that she was continuing to experience pain in early January 2013 despite

Dr. Glick’s opinion that there was no objective evidence that supported her complaints. After

several referrals, Patrick was treated by Dr. Valente on April 10, 2013. Dr. Valente found that

Patrick should remain out of work until May 15, 2013. Due to Patrick’s improvement resulting

from a new course of treatment, Dr. Valente released her to part-time work on May 14, 2013.

On May 20, 2013, ten days before the hearing before the deputy commissioner, Patrick returned

to work on a part-time basis.

       At the May 30, 2013 hearing before the deputy commissioner, in defense against

Chesterfield County’s application, Patrick claimed that she continued to be disabled as a result of

the original injury. Chesterfield County asserted that based on Dr. Glick’s January 2, 2013

release Patrick should be back to full-duty work. At the outset of the hearing, the deputy

commissioner asked Chesterfield County, “[I]f I find that she is still disabled for a reason

causally related to the accident, do you have any objection to modifying the award to temporary

partial [disability benefits]?” Chesterfield County responded “no.” Then the deputy

commissioner asked, “[I]f I find she was released to full-duty, it’s your contention I would just

cut it off and then she would not be due any more benefits?” Chesterfield County responded,

“That’s correct.” The deputy commissioner noted, and Chesterfield County agreed, that the

                                                -2-
“Defendants have no objection to me awarding temporary partial as of May 20[, 2013] if the

Employer’s application fails.”

       The deputy commissioner found that Chesterfield County proved that “the claimant was

released to full duty as of January 2, 2013,” and therefore granted its application. However, the

deputy commissioner additionally concluded that “Dr. Valente’s records support a finding that

[Patrick] was restricted from returning to full duty for reasons causally related to the injury as of

the day she returned to work May 20, 2013.” Although Patrick did not raise the issue of

temporary partial disability benefits in her amended claim—which was notably filed before she

returned to work—the deputy commissioner found that “the claimant’s assertion, at the hearing,

that she had returned to work was an implicit request for temporary partial disability benefits.”

Consequently, he terminated temporary total disability benefits as of January 11, 2013, but also

awarded Patrick temporary partial disability benefits as of May 20, 2013.

       The commission affirmed the deputy commissioner’s decision to terminate Patrick’s

temporary total disability benefits as of January 11, 2013 because it found no error in the finding

that she was released to pre-injury work as of January 2, 2013. With respect to Patrick’s

temporary partial disability benefits award, Chesterfield County requested that the commission

reverse and remand and allow it to be heard on the issue of partial disability because it had only

agreed to temporary partial disability benefits if the existing temporary total disability benefits

were reinstated. The commission found that remanding on the issue of temporary partial

disability benefits was “not necessary,” because Patrick “defended the employer’s application for

hearing by asserting she remained disabled, an implicit request for ongoing disability benefits.”

Relying on the opinion of Dr. Valente, the commission found that the deputy commissioner did

not err in finding that Patrick met her burden of proving causally related partial disability as of

the date she returned to work part-time.

                                                -3-
       On appeal before this Court, Chesterfield County argues that the commission’s decision

to award Patrick temporary partial disability benefits denied it due process of law because

Patrick never requested temporary partial disability benefits and the parties only litigated the

issue of temporary total disability benefits. Specifically it argues that the commission’s decision

to treat the fact that Patrick had returned to work as an implicit request for partial disability was a

“post-hearing sua sponte amendment of Patrick’s claim,” which denied it due process of law.

Chesterfield County asserts that at the hearing before the deputy commissioner, the parties

stipulated that if the employer’s application to terminate total disability benefits was denied, and

total benefits were reinstated, only then did it have no objection to the deputy commissioner

modifying Patrick’s award to temporary partial disability benefits effective the day Patrick

returned to part-time work.1 Chesterfield County thus asserts that the only issue that was “fully

litigated” was whether Patrick was entitled to total disability benefits and, therefore, it lacked fair

notice and opportunity to defend the claim for temporary partial disability benefits.

       The issue before this Court is very narrow. The sole question this Court must resolve is

whether Chesterfield County was denied due process of law by the commission’s decision to

award temporary partial disability benefits. While the commission’s factual determinations are

binding on this Court, Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824,

826 (1991), whether the commission’s decision to award Patrick partial disability benefits denied

Chesterfield County due process presents a question of law which this Court reviews de novo.

See Nelson Cnty. Sch. v. Woodson, 45 Va. App. 674, 677, 613 S.E.2d 480, 482 (2005).

       “Pleading requirements in administrative proceedings . . . are traditionally more informal

than judicial proceedings.” Sergio’s Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207


       1
          Patrick disputes that there was a “stipulation.” It appears from the record that rather
than a stipulation between the parties, Chesterfield County simply responded as indicated to a
question posed by the deputy commissioner.
                                                 -4-
(1986). Thus, “‘while some degree of formality or the use of standardized uniform procedures

and forms may be more conducive to an orderly and expeditious process, rigid or technical rules

of pleading . . . shall not apply so long as the procedures adopted protect the substantial rights of

the parties.’” Nelson Cnty. Sch., 45 Va. App. at 679, 613 S.E.2d at 483 (quoting Sergio’s Pizza,

1 Va. App. at 376, 339 S.E.2d at 207); see also Henrico Pub. Utils. v. Taylor, 34 Va. App. 233,

243, 540 S.E.2d 501, 506-07 (2001) (“In the context of a workers’ compensation proceeding, due

process ‘is flexible and calls for such procedural protections as the particular situation

demands.’” (quoting Duncan v. ABF Freight Sys., Inc., 20 Va. App. 418, 422, 457 S.E.2d 424,

426 (1995))). “In other words, ‘the procedure utilized [need only] afford the parties minimal due

process safeguards.’” Nelson Cnty. Sch., 45 Va. App. at 679, 613 S.E.2d at 483 (quoting

Sergio’s Pizza, 1 Va. App. at 376, 339 S.E.2d at 207). “To satisfy minimal due process

safeguards, the challenged procedure must provide ‘notice reasonably calculated, under all

circumstances, to apprise interested parties of the pendency of the action and to afford them an

opportunity to present their objections.’” Id. at 680-81, 613 S.E.2d at 483 (quoting Schwab

Constr. v. McCarter, 25 Va. App. 104, 111, 486 S.E.2d 562, 565 (1997)). Thus, “as long as the

employee’s application for benefits provides an employer with notice ‘of the potential issues in a

case,’ the claim will satisfy ‘minimal due process safeguards.’” Id. (quoting Johnson v. Paul

Johnson Plastering, 37 Va. App. 716, 723, 561 S.E.2d 40, 44 (2002), rev’d in part on other

grounds, 265 Va. 237, 576 S.E.2d 447 (2003)).

       Chesterfield County relies on WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 494 S.E.2d

147 (1997), to support its proposition that the commission denied it due process of law by

treating Patrick’s hearing testimony as an implicit request for temporary partial disability

benefits. In WLR Foods, Inc., the claimant’s application requested wage benefits beginning on

February 1, 1996—the application was never amended to encompass any greater amount of time

                                                -5-
and the claimant’s pleadings and testimony only focused on his condition after February 1, 1996.

Id. at 228, 494 S.E.2d at 151. The commission awarded the claimant wage benefits pre-dating

February 1, 1996. Id. at 226, 494 S.E.2d at 150. The “[e]mployer had no notice of a potential

award of wage benefits concerning any earlier time period until the commission rendered its

decision.” Id. at 228, 494 S.E.2d at 151. This Court found that the “commission’s procedure

‘precluded an adequate opportunity to defend [against an award for this time period] since it was

litigated only as [a claim for benefits beginning February 1, 1996].’” Id. (quoting Sergio’s Pizza,

1 Va. App. at 376, 339 S.E.2d at 208). “Had employer been on notice that it would be required

to defend against a claim for wage benefits during this time, it could have addressed this period

in detail and obtained additional information.” Id. at 228-29, 494 S.E.2d at 151. Therefore this

Court concluded that “[t]he commission’s sua sponte award of unrequested benefits denied

employer this opportunity and ‘fails to comport with due process notions of fair play and

substantial justice.’” Id. at 229, 494 S.E.2d at 151(quoting Sergio’s Pizza, 1 Va. App. at 376,

339 S.E.2d at 208).

       This case is easily distinguishable from WLR Foods, Inc. Chesterfield County argues

that the only issue actually litigated was whether Patrick was entitled to total disability benefits;

however, given the assignment of error as framed by Chesterfield County, the only question

before this Court is whether Chesterfield County had “notice of a potential [temporary partial

disability] award.” Id. at 227-28, 494 S.E.2d at 151 (emphasis added). Unlike WLR Foods, Inc.,

where the commission awarded unrequested benefits for a period of time never contemplated by

either party, Chesterfield County cannot claim it was surprised by an award of temporary partial

disability benefits. As her employer, Chesterfield County knew that Patrick had returned to work

part-time prior to the hearing before the deputy commissioner. Patrick did not dispute that she

was able, and in fact had returned to work part-time. The nature of what Chesterfield County

                                                 -6-
characterizes as a “stipulation” demonstrates that if the deputy commissioner terminated her

existing total disability award, Patrick was necessarily seeking a partial disability award as of the

date she returned to work part-time.

       Moreover, Chesterfield County was not prejudiced by the commission’s decision to treat

Patrick’s testimony as an implicit request for on-going disability benefits. See id. at 227, 494

S.E.2d at 151 (“Where the commission modifies a claim at the hearing or review stage without

advising the employer in advance, ‘the dispositive issue . . . is whether the employer was

prejudiced’ by the lack of notice.” (quoting Crystal City Oil Co. v. Dotson, 12 Va. App. 1014,

1018, 408 S.E.2d 252, 253-544 (1991))). Patrick’s entire defense to Chesterfield County’s

application to terminate her temporary total disability benefits was that she was in fact still

disabled and was only able to return to work part-time as of May 20, 2013 due to the medical

treatment provided by Dr. Valente. Consequently, Chesterfield County’s evidence disputing this

defense, or alternatively disputing a claim for partial disability, are necessarily the same.

Furthermore, at the hearing before the deputy commissioner, both Patrick and Chesterfield

County’s counsel extensively questioned Patrick regarding the post-January 2013 treatment she

received for her injury.

       In sum, Chesterfield County’s mistaken assumption that the commission’s decision to

grant its application to terminate Patrick’s temporary total disability benefits precluded an

additional finding that Patrick was partially disabled as of May 20, 2013, does not amount to

circumstances that offend due process notions of fair play and substantial justice. Chesterfield

County was on notice of the possibility of a partial disability award and had a fair opportunity to

present evidence that disputed her claim that as of May 20, 2013 she was only released to

part-time duty. Chesterfield County was not denied due process by the commission’s decision to




                                                 -7-
award Patrick temporary partial disability benefits, and we therefore affirm the commission’s

judgment.

                                                                                       Affirmed.




                                              -8-
