Spanish
VIRGINIA: 05/06/2005
IN THE WORKERS’ COMPENSATION COMMISSION
MARIO CELESTINO, Claimant
Opinion by the
Commission
v. VWC File No. 218-90-23
DEAN STEEL ERECTORS CO., INC., Employer
ST. PAUL FIRE & MARINE INS. CO., Insurer
Daniel P. Barrera, Esquire
1650 King Street, #505
Alexandria, Virginia 22314
for the claimant.
(Copy sent by Priority Mail)
Mark A. Stallings, Esquire
355 Crawford Parkway, Suite 520
Portsmouth, Virginia 23704
for the defendants.
(Copy sent by Priority Mail)
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
The employer requests Review of the deputy commissioner’s November 5, 2004, Opinion. The claimant alleged a September 23, 2003, injury by accident. The deputy commissioner awarded benefits for the period September 23 to September 29, 2003, and the employer appeals. We AFFIRM.
The only issue before us is whether the deputy commissioner erred in failing to grant the employer’s request for a continuance of the October 7, 2004, hearing in this dispute. The claimant was injured on September 23, 2003, and filed the Claim on May 11, 2004. The claimant, the employer, and the insurer were notified on May 24, 2004, that the Claim was filed and certain additional information was required. The employer and insurer failed to respond, and a Show Cause Order was issued. On June 24, 2004, the parties were notified that the Claim was being referred to the hearing docket. On July 19, 2004, the parties were notified that a hearing was scheduled for October 7, 2004.
In a July 27, 2004, letter, counsel for the insurer noted an appearance, and on August 13, 2004, the deputy commissioner’s office inquired if counsel also represented the employer. On August 17, 2004, counsel responded that he represented the employer and the insurer. In a September 3, 2004, letter, counsel for the claimant notified the Commission that it appeared that the wrong insurer had been notified. On September 17, 2004, the deputy commissioner’s office responded, indicating that the correct insurer was notified, and that the insurer had affiliated a third party administrator.
On September 30, 2004, present counsel for the employer filed a notice of appearance. On October 1, 2004, counsel requested a continuance, asserting that additional time was needed to prepare a defense, and to allow the employer time to assert a Code 65.2-306 defense of willful misconduct. The deputy commissioner denied the employer’s motion, and reiterated the denial in the November 5, 2004, Opinion. The deputy commissioner reasoned that the Claim was filed on May 11, 2004, and the hearing was scheduled on July 19, 2004, providing ample time for the employer to prepare its defense. The employer requests Review.
The employer argues that the deputy commissioner abused his discretion in denying the continuance, reasoning that it caused irreparable harm to the employer. (The employer made a proffer at the hearing concerning its willful misconduct defense.) The employer further argues that the harm resulting to it far outweighs any harm caused to the claimant.
The employer does not offer an explanation as to why, when it was notified of the Claim in May 2004, and received notice of the scheduled hearing on June 24, 2004, it failed to request a continuance until October 1, 2004, less than one week before the hearing. Counsel for the employer indicated that the insurer forwarded the file to his office on September 18, 2004, but he was on vacation and did not review the file until September 27, 2004, by which point it was too late to assert a Code 65.2-306 defense. This leaves an approximate three-month period between June and September, however, when the employer and insurer knew of the hearing and yet did not seek a continuance. Moreover, there was an appearance noted by additional counsel as early as July 27, 2004, which provided ample time both to request a continuance and to assert a Code 65.2-306 defense.
The employer further argues that essentially no harm would have resulted to the claimant by granting the continuance, asserting that all compensation benefits at issue already have been paid. The employer does not take into account, however, the claimant’s medical treatment, including any follow-up treatment that may be delayed. The issue is whether the deputy commissioner abused his discretion in failing to grant the continuance. The Commission is charged with administering numerous claims, and the deputy commissioner, as noted in his letter denying the request, reasoned that the request came too late, considering the lengthy period of notice of the hearing. We believe that the deputy commissioner acted within his discretion in denying the request for a continuance. See Lukachik v. Loudoun County Sch. Bd., VWC File No. 205-60-63 (Feb. 11, 2002).
For these reasons, the November 5, 2004, Opinion is AFFIRMED.
This matter is removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.
cc: Mario Celestino
580 Hawkins Street
Harrisonburg, Virginia 22801
St. Paul Fire & Marine Ins. Co.
Va. UCM
P.O. Box 3570
Brandon, Florida 33509
Dean Steel Erectors Co., Inc.
5366 N. Valley Pike
Harrisonburg, Virginia 22802