                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


RONALD W. CRAFT
                                               MEMORANDUM OPINION*
v.   Record No. 1517-99-2                           PER CURIAM
                                                 DECEMBER 7, 1999
COMMERCIAL COURIER EXPRESS, INC.
AND
MICHIGAN MUTUAL INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (T. Bryan Byrne, on briefs), for appellant.

             (S. Vernon Priddy III; Sands, Anderson,
             Marks & Miller, on brief), for appellees.


     Ronald W. Craft contends that the Workers' Compensation

Commission erred in dismissing his pending claims without

prejudice due to his failure to comply with a discovery order.

Although Craft presented seven separate questions in his brief,

we address those questions together because they all relate to

the sole issue on appeal as stated above.       Upon reviewing the

record and the briefs of the parties, we conclude that this

appeal is without merit.     Accordingly, we summarily affirm the

commission's decision.     See Rule 5A:27. 1


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       On September 23, 1999, Craft filed in this Court
Objections and a Motion to Quash interrogatories propounded to
him by employer on September 20, 1999 before the commission. On
       On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).      So

viewed, the record established that on July 11, 1994, Craft

sustained work-related left leg and right arm injuries, which

Commercial Courier Express, Inc. and its insurer (hereinafter

referred to as "employer") accepted as compensable.    The

commission entered an award for medical benefits and for

disability commencing July 19, 1994, based upon the parties'

Memorandum of Agreement.   On October 11, 1994, the commission

terminated Craft's benefits based upon an Agreed Statement of

Facts filed by the parties, reflecting that Craft had returned

to work on October 12, 1994.

       On January 29, 1996, Craft filed the first of numerous

claims.   The January 29, 1996 claim sought permanent partial

disability benefits for an 85% impairment rating to Craft's left

leg.   After the commission continued the hearing date a number

of times, a dispute arose between the parties regarding Craft's

refusal to submit to a medical examination by Dr. Kim R.

Sellergren.   On March 27, 1997, the deputy commissioner ordered

___________________
appeal, this Court does not have jurisdiction over disputes
related to discovery issues with respect to ongoing claims
before the commission which are not before this Court on appeal.
Rather, the commission is the proper forum to dispose of the
issue raised by claimant. Accordingly, we will not address
Craft's Objections and Motion to Quash.



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Craft to submit to an examination by Dr. Sellergren, at the

physician's convenience, and no later than April 16, 1997, or as

soon as Dr. Sellergren's schedule would permit.   The commission

continued an April 7, 1997 hearing at the request of Craft's

counsel due to a conflict on that date.    On April 8, 1997, Craft

filed a request for review of the deputy commissioner's order

requiring him to submit to an examination by Dr. Sellergren,

along with several other issues.   Employer moved to dismiss

Craft's claims.   The commission declined to review the issue

regarding the medical examination, finding that it was a

procedural matter and, thus, interlocutory and not ripe for

review.   Therefore, the commission remanded the case to the

evidentiary hearing docket.

     The commission scheduled a hearing for July 11, 1997, which

the deputy commissioner cancelled on July 8, 1997.   On July 15,

1997, the deputy commissioner ordered Craft, by counsel, to file

a memorandum by July 28, 1997, to show cause why his pending

claims should not be dismissed for failing to attend the

examination.   After the deputy commissioner reviewed Craft's

memorandum, he granted Craft an additional fourteen days within

which to set a date for the examination.   In his July 30, 1997

order, the deputy commissioner warned Craft that "all claims

deriving from the July 11, 1994, industrial accident shall be

DISMISSED WITH PREJUDICE should Dr. Sellergren's examination not

proceed for reasons attributed to [Craft]."

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     Craft submitted to the examination, although a dispute

arose over payment of Dr. Sellergren's fee.   A hearing convened

on November 21, 1997 on Craft's claims, but it was adjourned

before any testimony was taken.   The commission reset the

hearing for February 5, 1998.   Before the February 5, 1998

hearing, employer sought to take Craft's discovery deposition.

On January 23, 1998, employer sent Craft a notice of a January

30, 1998 deposition.   Craft's counsel informed employer on

January 26, 1998 that Craft refused to attend the deposition,

claiming that he was out of town.

     The commission rescheduled the February 5, 1998 hearing due

to Craft's unavailability.   Employer again sought to depose

Craft before the rescheduled hearing and on March 26, 1998, sent

a deposition notice to Craft's counsel.   The notice reflected a

deposition date of April 1, 1998.   However, as the commission

correctly found, the parties' correspondence and pleadings made

it abundantly clear that Craft was well aware that the actual

date for the deposition was April 10, 1998.

     On April 1, 1998, Craft's counsel moved to quash the

deposition notice on the grounds that Craft had painful knees,

did not have reliable transportation, and had not yet been

reimbursed by employer for his travel expenses to Dr.

Sellergren's examination.    Craft's counsel also moved to

transfer venue of the case from Richmond to the Norfolk Regional

Office of the commission.    In an April 7, 1998 order, the deputy

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commissioner ordered Craft to appear for his deposition on April

10, 1998.   The order warned Craft that if he failed to appear

for the deposition, the commission would dismiss all of his

pending claims.   On April 8, 1998, Craft filed a motion to

reconsider and requested a review of the deputy commissioner's

April 7, 1998 order.   On April 10, 1998 the Chief Deputy

Commissioner sent a letter to Craft's counsel via telefax in

which she declined to reconsider the issue on review.

     Craft failed to appear for the April 10, 1998 deposition.

On that date, employer moved the commission to dismiss Craft's

pending claims.   On April 11, 1998, Craft responded and stated

that he wished to be deposed by telephone or in Chesapeake.    He

also requested a change in venue and moved to strike employer's

defenses.

     On April 13, 1998, the deputy commissioner dismissed

Craft's pending claims with prejudice, finding that he had

presented no viable basis why he did not appear for his

deposition on April 10, 1998 as ordered and that he was fully

apprised of the consequences for failing to do so.   The deputy

commissioner also found that the motion for change of venue was

untimely and without merit.   Craft sought review before the full

commission.

     On October 2, 1998, the full commission vacated the deputy

commissioner's April 13, 1998 order and remanded the case to

afford Craft the opportunity to respond to employer's motion to

                               - 5 -
dismiss.   Craft filed a response setting forth the reasons that

he failed to attend the April 10, 1998 deposition.   He alleged

that (1) he failed to receive timely notice of the deposition;

(2) he had health and transportation difficulties; (3) employer

did not pursue an option offered by Craft's counsel at the April

10, 1998 deposition to depose Craft by telephone; and (4) his

painful knees, the side effects of medication, and his lack of

finances and reliable transportation prevented him from

attending the deposition.

     The deputy commissioner rejected Craft's contentions and

ruled that his excuse of lack of timely notice was without

merit, noting that he filed a motion to quash on April 1, 1998,

nine days before the scheduled deposition and he did not allege

defective notice.   Under the circumstances of these proceedings,

the deputy commissioner found that dismissal of Craft's pending

claims was the appropriate sanction.   On December 8, 1998, the

deputy commissioner entered an order dismissing Craft's claims

with prejudice.   On review, the full commission affirmed the

dismissal and modified the deputy commissioner's order by making

the dismissal without prejudice.   In so ruling, the full

commission concluded as follows:

           [W]e agree with the Deputy Commissioner that
           [Craft] through his conduct in this case has
           ignored the lawful orders of the Commission,
           as properly exercised through the Deputy
           Commissioner, and thereby unnecessarily
           obstructed these proceedings. We are simply
           unpersuaded by [Craft's] purported inability

                               - 6 -
          to travel, noting that he has on occasion
          missed scheduled appointments because he
          was, according to his counsel, out of town
          or out of state. The bare statement that
          Craft does not have "reliable
          transportation," without more, is similarly
          unpersuasive.

               We find that [Craft] intentionally
          thwarted the deposition proceedings in order
          to gain an advantage, defying the specific
          warning of the Deputy Commissioner that this
          very dismissal sanction would be imposed. A
          claimant cannot simply ignore with impunity
          the lawful orders of a hearing officer,
          especially where the hearing officer warns
          that the claims would be dismissed for
          noncompliance.

     The commission has the authority to adopt rules to carry

out the provisions of the Workers' Compensation Act.     See Code

§ 65.2-201(A).   Rule 1.8(G) of the Rules of the Virginia

Workers' Compensation Commission allows a party to take the

deposition testimony of any person, including another party,

after a claim or application has been filed.    That rule provides

that "[d]epositions shall be taken in accordance with the

requirements and limitations of the Rules of the Supreme Court

of Virginia . . . ."   Rule 4:5(a1) of the Rules of the Supreme

Court of Virginia, provides that "[d]epositions shall be taken

in the county or city in which the suit is pending . . . ."

     "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).

See also Code § 65.2-202.   In addition to its statutory


                               - 7 -
authority to impose sanctions, the commission's rules authorize

the commission to impose certain sanctions, including dismissal

of a claim or application.     See Rule 1.12, Rules of the Virginia

Workers' Compensation Commission.

     Thus, the commission has the authority to impose the

sanction of dismissal in appropriate cases.    The decision to

sanction a party for disobedience to an order is committed to

the commission's discretion.     See Jeff Coal, 16 Va. App. at 277,

430 S.E.2d at 716.   The record clearly establishes that without

justification, Craft failed to attend his April 10, 1998

deposition in Richmond as ordered by the commission.    The record

belies Craft's contention that he was not given timely notice of

the deposition or that the commission failed to timely and

properly notify him of its intention to dismiss all of his

claims if he failed to attend the April 10, 1998 deposition.

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

                                                          Affirmed.




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