*1 support majority points any authority to monwealth nor only proposition the Act does establish from reservation. procedure expelling valid a member Indeed, argument not raise such Commonwealth did Rather, were, arguments or on its and continue appeal. trial be, authority expel whether of the to proof to confined to council, Act, i.e. that tribal met the requirements that, alone, expel acting authority had alternative, that a of tribal majority the evidence established voted Charles age twenty-one expel members over the from the reservation. I would find that the Commonwealth failed summary, by all of the crime of as defined Code
prove trespass, elements 18.2-119, “law- presented § no evidence that those Act, reservation, as defined fully charge” of I Accordingly, voted to would reverse expel Charles. of the trial court. decision
Specialty Insurance Record 1910-03-3. No. Appeals Virginia, Court
Salem. May 2004. *2 J., Kelsey, opinion. filed concurring Benton, J., opinion. filed dissenting (Lee briefs), P.C., on Phipps, appel-
Paul L. & Phipps lant. (Lisa Clement, Midlothian; Bristol, Frisina Murthy,
Ramesh PennStuart, brief), for appellees. *3 BENTON, KELSEY, ELDER and JJ.
Present: ELDER, Judge. (claimant) from a decision Work- Boyd appeals
Judy that of holding application the Compensation Commission ers’ insurer, American Inc., North People, and its employer, her (hereinafter collectively employ- Specialty Company Insurance outstand- to an er), being paid pursuant to terminate benefits she contends appeal, filed. On properly award was ing ab initio termination was void the applica- filing paying check benefits application, as the tion, issue date although bearing the same applica- than the date on day one later postmarked employer’s the commission’s determination tion. We hold not error. Rule 1.4 was not violate Commission did Thus, affirm. we
I.
BACKGROUND by accident to her injury a compensable sustained Claimant employer. working while July on lower back compensable, as Employer accepted injury parties and the pay executed an to total agreement temporary disability bene- fits. Based on that agreement, the commission entered an on award December 2001. 18, 2002, July
On filed application requesting termination the outstanding award on claimant’s based release to return to pre-injury employment. her The applica- 18, 2002, tion July was dated mailed via certified mail on that date. The indicated benefits had claimant 2002. through July A check paying through July was issued on that same date. envelope The in which check postmarked was mailed was July 2002.
Commission staff determined based probable result, As a cause. the application was docketed on August and referred to hearing docket. Claimant object did not of probable the determination cause or the referral of to the hearing docket. hearing
At the before the deputy commissioner on October 80, 2002, claimant moved dismiss employer’s application as void ab initio under Commission Rule 1.4, contending the termination application misrepresented that the ben- disability payments efits were current time it its application. filed The deputy commissioner concluded the not application was void ab initio. The also deputy found claimant was capable returning to work and terminated the July award effective 2002. appeal, the
On unanimously commission affirmed depu- ty’s decision that employer’s termination application was *4 rejected defective. It employer’s argument that claimant waived her to right procedural objection raise the not asserting probable it when cause was found and matter hearing referred to the docket. The commission also concluded “claimant has made no that not showing she was paid compensation period ending July application date the was filed. covering The check that period the day issued on of the application’s filing, although facts, it concluded the day.” next those postmarked the On Finally, the commission con- application “was not defective.” longer claimant was no dis- the evidence established cluded to injury to of her work and was able due the effects abled pre-injury employment. to return only to this on the issue of appeal noted Court Claimant employer’s payment the timeliness of of benefits.
II.
ANALYSIS that, 1.4, the commis contends under Claimant employer’s applica considered sion docketed and erroneously argues tion for termination benefits. She application by sending filed the was void because 2002, 18, did not mail the related July via mail on but certified check, paid that date and benefits which was issued benefits 19, date, July challenge that until 2002.1 When a rules, “our review the commission’s construction of made to the commission’s is limited to a determination whether Classic rule of its own was reasonable.” interpretation Floors, Guy, Va.App. Inc. v. 383 S.E.2d right her Employer 1. in a footnote that claimant waived contends payment accompanying the of the contest timeliness days object within 15 after the she or submit evidence because failed Although application. disagree. We acceptance commission’s days present opposing gives party fifteen Rule 1.5 hearing referred for a on the opposition before the matter is evidence require any evidentiary hearing, the rule does record prior time objections to that must be made or evidence submitted Cook, Va.App. Specialty Body penalty Auto v. of waiver. Cf. (1992) (holding Cook neither waived had asserting employer’s as a defense to the estopped from nor through the application the that it had not fact ‘‘[njothing requires defect in the in Rule 13 that the application evidentiary hearing"). prior application be to the assailed non-compliant would be not decide whether a We need Va.App. at merely Compare void ah initio or voidable. (affirming conclusion that S.E.2d commission’s 276, 284—85, Warden, initio) Va. ab with Nelson was void subject (noting between matter 77-78 distinction jurisdiction). jurisdiction authority to exercise that
87 (1989). interpretation mil not set aside the commission’s We capri- of its unless that is and interpretation arbitrary rules Cook, 327, 330, Body v. 416 Va.App. cious. Auto Specialty (1992). “undisputed our of Upon S.E.2d review record, hold facts” we the commission’s determination that did not violate Rule 1.4 was not employer’s application error. that, requires excep-
Commission Rule 1.4 absent certain here, filing tions not an an applicable employer application for a hearing change pay “[e]ompen- based a condition must through sation ... filed.” application Rule 1.4(C). That must the date which “[s]tate compensation was Id. The paid.” last commission held in that employer’s change-in-condition is if facially void the application represents that benefits were a date prior filing applica- the date of the tion, dismissal and it concluded that 1.4 requires Rule under these circumstances. Va.App. (decided S.E.2d at 234 under former Rule predecessor 1.4, which substantially contained similar requirements). result, We upheld reasoning as follows: The promulgated Commission “to police [Rule 1.4] [the] tendency employers and insurers first terminate litigate later.” provides The Rule a reasonable mechanism to protect from employees possible abuse in the filing practices Thus, of employers. cannot a say we strict interpretation provisions misplaced is [Rule 1.4’s] unreasonable. 330-31, Comm’n,
Id. at at 235 (quoting Dillard v. (1974)) U.S. S.Ct. L.Ed.2d 540 (citation omitted).
The commission applied has also Rule 1.4 in circumstances which the but facially valid additional evidence proves required compensation payments were made filed,” 1.4, the date “through “either or with the filing Rule v. South- [application,” [the] before Ctr., 40, 1995 side *1 Reg. Med. 74 O.W.C. WL added). T Trucking, O.W.C. Mullins & J (emphases (1994), example, *1 1994 WL represented period preceding that benefits for two-week *6 on date the filing paid of the were the application of However, indicated the application was filed. the record at until three payment did not mail the benefit issue employer in days Citing it its Id. our decision application. after filed “compensa- that emphasized position the commission its filing the date at employee through tion must be the paid added). the Id. filing.”2 (emphasis time of case, however, to the instant neither the commission Prior considered Virginia appellate expressly nor court had any 1.4(C)’s in context Rule and mean the of “paid” payment what shall compensation paid through be express requirement filed and the commission’s posi- the date the application be or with the tion that such shall made payment before the We now hold that employer’s filing application. here, timely paid ruling commission’s which considers benefits the check and the pursuant payment to Rule 1.4 where postmarked and the is application payment bear the same date in the light purpose is not of following day, the unreasonable tendency and insurers employers of Rule of police “to [the] later.” litigate and Where terminate first mailing on and issued the same date payment and benefits are only one only briefly of payment postponed—here, have, fact, in simulta- day—a paid decision that benefits arbitrary of is not and filing with the neously capricious. commission’s a result in conflict with the is such
Nor employer In filed in and Rule. decisions Mullins not mail the May on did that date until through paying check compensation *1. 1039789, at The commission days three later. WL "through only compensation expressly requires 2. Rule 1.4 require does not that such application was filed” and the date the filing application. at the time of payments be made before added). compel an in such Nor does our decision Cook (Emphasis interpretation. three-day mailing satisfy found in was insufficient to delay this 1.4(C), and it made no mention the date which the Rule, Id. check in which employer alleged was issued. a refusal of selective on December employment commission noted the benefits check was issued the same date filed, but was employer’s December “until three was filed and days mailed after eight days after the date which was re- payment 4,1994. quired,” December 1995 WL *2. The commission’s nothing decision claimant’s ease is but a further refinement its conclusion that requires “pay compensation either or with before Id. at *1. filing Application of an A Hearing.” finding day that a check issued the application the same is filed and postmarked timely arbitrary the next is not day is and capri- Rule, cious light postmarked which check was *7 three later and after days eight days the date which it Further, was given opinion due. the commission’s subject to interpretation a reasonable not does conflict with Rule to duty express- commission had no ly distinguish these in its opinion decisions in this case.3 Tree
Claimant in Audobon Service v. holding contends our Childress, 35, 2 Va.App. (1986), 211 compels 341 S.E.2d compensation conclusion that are “paid” pursuant to Williams, Although support 3. the commission cited in Williams v. VWC 191-75-20, (Va. No. 1999 WL Comp. Workers’ Comm’n Oct. 21, 1999), unpublished prior lacking legal significance a decision in this context, dispositive commission nevertheless focused on the facts 18, covering ending July period "[t]he under Rule—that 2002, [the check day the date the filed] was was issued on the Thus, filing, application’s although postmarked day.” contrary the next dissent, commission, position by right to the taken for the one, wrong than reason rather exercised to its discretion reach result, right authority what it was the believed even if the it cited in "right support legal significance of that reason” this lacked in context. Henrico, 851, County Va.App. Lash v. S.E.2d Cf. banc) (1992) (era that, (holding long litigant preserves as as issue in court, prevent appellate relying trial Rule 5A:18 does not court "from authority presented on ... that was not to the or referred trial court added)). parties’] (emphasis [the in briefs” to the directly is mailed only payment Rule 1.4 when Thus, contends, owed her were she the benefits claimant. July check issued on but paid when the 2002, 19, July mailed her on as rather when check accompanying envelope. on the We by postmark indicated disagree. Audobon, benefits were deemed we considered when 65.1-75.1, § § 65.2-
“paid” to former now Code pursuant Code “ ‘any of a penalty which allowed the assessment after it becomes ... not within two weeks payment ” at 212 n. 2. The Va.App. at 36 n. S.E.2d due.’ lawyer to the claimant’s timely mailed the benefits claimant, actually the claimant did not than the rather had Id. period expired. until after the two-week receive them that “payment at at 215. The commission held S.E.2d § ‘paid only under 65.1-75.1 after [had] Code [was] ” at at 213. received the claimant.’ Id. 341 S.E.2d We by Code holding “paid” that when benefits were under disagreed, they mailed rather § when were 65.1-75.1 was determined 40-41, at 341 S.E.2d at they than when were received. Id. However, assessment 214-15. we affirmed the commission’s had to we the benefits penalty concluded lawyer rather than his “directly to the claimant” mailed “paid.” Id. at order them be considered at 215. legisla dependent upon decision Audobon was
Our Va.App. § intent in Code 65.1-75.1. enacting ture’s in the Further, opinion at 214-15. in each instance meaning regarding which we stated our conclusion *8 interpretation our of the word clearly we indicated that “paid,” Id. in that code section. “paid” usage particular to its related 38-41, at 213-15. at case, contrast, by pass we are called
In this 1.4, its not a statute of own Rule interpretation commission’s of rule legislature. light purpose of enacted to termi- and insurers tendency employers of police “to [the] inter- later,” we the commission’s litigate first and hold nate
91 pretation above, of the rule is not error. As set out where the application and benefits payment are issued on the same date and of mailing payment only briefly postponed, have, fact, decision that benefits simultaneously filing with the of the application arbitrary is not and capri- cious.
III. reasons, For these we hold the commission’s determination that employer’s application did violate Rule 1.4 was not arbitrary capricious. Thus, we affirm.
Affirmed.
KELSEY, J., concurring.
In my opinion, the commission’s interpretation flexible in this cannot persuasively case reconciled with earlier, interpretation inflexible announced in Rule v. Ctr., Reg. Southside Med. 42,1995 O.W.C. WL (1995) at *1 (holding that the “employer pay must compensa- tion either or with the filing” and that payment before “after filing is not permitted”), and Mullins v. T & Trucking, J 56, 57, O.W.C. 1994 WL at *1 (holding “compensation must be paid to the employee through the filing date at the time filing”).
That is not say that the commission cannot “change its mind” about its previous interpretations—it can, course, “so long as its new interpretation is reasonable.” United States v. Deaton, (4th Cir.2003) 332 F.3d (citing Smiley v. (S.D.), N.A, Citibank U.S. 116 S.Ct. (1996)). so, L.Ed.2d 25 Even the new interpretation cannot abe “sudden and unexplained change” or one that fails to take into “legitimate account prior reliance on interpreta tion.” Smiley, 742,116 Motor U.S. at S.Ct. (citing States, Vehicle Ass’n United Inc. v. State Farm Mut. Mfrs. Co., Auto. Ins. 29, 46-57, 2856, 2868-74, U.S. 103 S.Ct. (1983)). Mt. L.Ed.2d 443 Piney Coal Co. v. Mays, Cf. (4th Cir.1999) F.3d 766-67 deference, (giving despite *9 prior interpretation, agen- because the reversal of its agency’s explain cogently” this cy change “took commendable care to stay wrong path merely it not to “on the why and chose worn”). it is well or, case, for that distinguish In the commission did not this Rule. Nor did or the commis- even mention Mullins matter, the ratio decidendi of either. It thing sion is one apply mind, another to be change quite the commission to but may may arbitrary, or double-minded. The former be however, latter, circumstances. The almost depending said, agree my dissenting is. That I do not with certainly that we remand case back to colleague’s suggestion us two inter- competing commissioners to tell which their 1.4(C) They to case.4 pretations apply of Rule should this The already opinion. have told us that—in unanimous jettison a situation like this is to proper judicial response to appellate and do what altogether any interpretative deference de of law novo. ordinarily courts do: decide questions here, either line any preset If did that without favor of we hold Mullins and Rule applied I precedent, would duty to pay in an artificial formalistic manner. The not, linguistically of the “through” does paid simultaneously it with the logically, require be By reading requirement this into the application. interlinear a de 1.4(C), promulgated text the commission facto rulemaking rule amendment outside the constraints compounds It the error the commission process. only with our that violations this say, encouragement, albeit “void gloss employer’s application renders interpretative 57, 1994 at *1 ab initio.” WL O.W.C. appellate implied power of remand extends situations where 4. The necessary permit or to “defect in the record” correct some findings made or additional to be evidence to taken "further Comm'n, Va.App. points.” Hoyle Employment v. Va. essential 537-38, Willard, (1997) (quoting Va. Jones S.E.2d v. 606-07, (1983)). situation exists 507-08 Neither here. (citing Auto Specialty Body Va.App. (1992)). sum, this case paid “through” the date of
the application. By mailing the check the day, next *10 employer violated neither the requirements literal of Rule 1.4(C) nor its underlying policy rationale. I thus concur with the decision to affirm the commission’s decision in this case.
BENTON, J., dissenting.
Ordinarily, I would concur in affirming the commission’s (i) decision because the record established that the employer’s application for a hearing seeking termination of the award indicated benefits had paid through the date of filing the (ii) that, day on the employer the mailed its application for a hearing, the employer had drawn a check payable to employee the for benefits due through that day. The record also established that the check was mailed to the employee day the after the employer mailed the application to the Thus, commission. the requirements literal of Rule 1.4(C)—that “compensation shall paid through the date the application was filed”—appear to have been met. Spe Cf. cialty Auto v. Body 14 Va.App. (holding the requirements of Rule predecessor 1.4(C), to Rule not were met where the employer suspended payments to employee on August 1990, two days before the employer filed its for a on hearing 1990). August course, Of this presupposes that the com 1.4(C) mission would interpreted have Rule be satisfied a prompt mailing or delivery payment to the a employee, finding the commission did not explicitly make in this case.
I. I dissent and separately write for First, two reasons. it is important 1.4(C) to note that the critical issue under Rule is but, the date written on rather, the check whether the check is drawn in an amount sufficient pay the employee benefits due through the date of filing application.
Second, contrary in this the commission’s decision case v. T Trucking, decisions Mullins & J O.W.C. earlier Ctr., Reg’l Med. and Rule Southside (1994), 74 O.W.C. 40 1.4(C) (1995). Those a different interpret decisions In em- way. not in an unreasonable way, but 6,May on 1994 and hearing filed its ployer later, mailed, paying check to the days employee three 6, 1994. at 56-57. The through May benefits 73 O.W.C. satisfy did not commission ruled through to the “compensation employee must be Id. at 57 filing.” date at the time of filing (emphasis added). Thus, employer’s delay mailing benefits check was determinative. Rule, hearing filed see 74 O.W.C. and drew a check that
December 4, 1994, the date day same December paying Id. at 42. Be- employment. selective employee refused *11 12, 1994, the commis- cause the check was mailed December not mailed to the [employee] payment sion ruled “that was application eight days after the was filed and days until three [and, ... through payment required which was after the date therefore,] comply with employer’s application failed added). 1.4(C).” in Id. Again, delay (emphasis comply a failure to with the mailing the check caused benefits rule.
I the rule of decision that the commission estab- believe and Rule to the in this lished Mullins contrary in decision case, after the date the day the check was mailed where Applying logic filed the employer application. paid was not compensation was invalid because Applying logic at 57. filing.” “at the time O.W.C. Rule, was “payment was invalid because the ... after the [employee] not mailed to the until 42.5 filed.” 74 was O.W.C. long ago application that fails to ruled that an
5. The commission Byrd v. requirements Rules is "void ab initio." comport with the of its 63, Co., (1973) (ruling applica- that an Logging 55 O.I.C. C.E. Jones the commission that the in When decided this 1.4(C), ease satisfied Rule the commission did not cite or discuss either Mullins or Rule. Instead, the commission Williams, decision Williams v. unpublished relied in (1999) (October 1999). UNP 1917520 Discussing VWC whether the hearing, which the filed 14,1998, 1.4(C), on December complied with the commis sion ruled as follows in Williams:
The record indicates that the last check compensation dated December postmarked December explanation 1998. The of payment, submitted the [em- ployee], indicated that the check was for total temporary disability from benefits November 3 through December 1998. There is no evidence that he not paid compensa- tion through December 1998. The fact that the check 14,1998, was dated December does not mean that it covered payments only until that date. Accordingly, Deputy Commissioner properly found that paid benefits had been through December and accepted the employer’s Application for Hearing.
Although the commission’s opinion Williams did not dis- in specific close the arguments case, advanced the com- mission’s ruling suggests that the disputed issue was whether the check dated December 1998 could represent payment benefits through short, December 1998. In Williams, the commission reached the unremarkable and obvi- ous check, conclusion that the amount of the not the check, determined whether it conclusion, date of filing application.' this reaching commission had no Williams Mullins occasion to discuss *12 and, therefore, did not. 13, pursuant predecessor tion filed to Rule to Rule 1.4 was “not filed in accordance with the law and Rules of the ... ... Commission [and], therefore, initio”). void ab Whether such an is of no undoubtedly effect or invalid or void is a decision that the administra- agency may reasonably interpreting
tive
determine in
See
rules.
Woodall,
419,
Sargent
(1984);
Electric Co. v.
228 Va.
II. agency’s A cardinal law is that an principle administrative of its own will not overturned unless interpretation rules be capricious and or Nicholson v. arbitrary unreasonable. 401, 404-05, 153 805, 154 S.E. 806- Corp., Coal Va. Clinchfield 152, (1930); v. 9 Virginia Clay, Va.App. 07 Real Estate Bd. (1989). 159, 622, applied princi 384 S.E.2d 626 have this We commission’s of its rules. ple interpretation Gallaban 694, 700, Publishing, Va.App. v. Free Lance 41 589 Star (2003). 12, 15 S.E.2d statutory authority
“The commission has to ‘make rules regulations carrying provisions and out the [the ” Foods, 234, 237, v. Rocco Va.App. Farm 16 Act].’ Ratliff 65.2-201(A)). 39, § 41 “Be (citing S.E .2d Code promulgates cause the these rules and has the [commission] them, right and to enforce we would that it obligation prefer have the first to construe its own rules.” opportunity Blevins, Brushy Va.App. Coal Co. v. 78 n. Ridge (1988). great S.E.2d 206 n. We accord deference to to its rules. interpretation given by the commission to a “Consequently, our review is limited determination interpretation whether the commission’s of its own rule was Floors, Inc. v. 9Guy, Va.App. reasonable.” Classic (1989). S.E.2d 478, 482-83, Va.App. Arellano v. Pam E. K’s Donuts Shop, (1998). Likewise, we have held that “ great commission’s will accorded interpretation be ‘[t]he arbitrary capri and will not set aside unless deference ” Co., 41 Va.App. cious.’ Estate Kiser Pulaski Furniture omitted). (2003) (citation case, interpretation this the commission’s newfound 1.4(C) being arbitrary capri- has the character of any unpublished opinion cious. an without Relying published opin- in its contrary interpretation discussion of the ions, of Rule adopted interpretation the commission has pronouncements. is inconsistent with its earlier Moreover, this devia- opinion explain the commission’s fails to *13 therefore, tion from interpretation; its earlier demonstrates issues, thoroughness a lack of in its consideration of the evinces in validity reasoning, persuasive little its and lacks Citing Chenery ness. SEC v. Corp., U.S. (1947), held, Supreme
S.Ct. Court a decision involving agency, another administrative where “[e]ven the Commission has reached the result right wrong for the reason, decision, court, that of a unlike trial will not be permitted Commonwealth, Virginia stand.” First Bank v. 349, 351, 193 (1972). 213 Va. 5-6 simple [A] but fundamental rule of administrative ... law is court, the effect that a reviewing with a dealing determination or judgment which administrative agency make, alone is authorized to judge must propriety such solely by action grounds by invoked If agency. those grounds are or inadequate improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or basis. proper To do so would propel the court into the domain which [the legislature] has set exclusively aside for the administrative agency.
... important corollary of foregoing [A]n rule ... [is:] If the administrative action is to by be tested the basis rest, which it purports to that basis must forth be set with clarity such as to be understandable. It will not do court to compelled guess be theory at the underlying the action; agency’s nor can a court expected to chisel that which precise must be from what the agency has left vague words, and indecisive. In other “We must know what a decision means duty before the say becomes ours to wheth- er it is right wrong.”
Chenery Corp.,
196-97,
(cita-
In view of the deficiencies in the opinion commission’s the commission’s contradictory interpretations of Rule as Rule, evidenced case, and the decision in this I would reverse this decision and remand to the commission for a determination which the two conflicting interpretations interpreting rule of decision shall be the commission’s 1.4(C). the record of an when appropriate A remand often falls within the a defect that agency administrative contains agency. expertise appellate practice
“It to remand causes is familiar *14 merits, where proceedings deciding further without defect in the justice that course order that some demands a be made to supplied. may Such remand may record be findings taken additional permit further evidence to be appellate “an court is points.” essential And made itself recourse in the event it finds unable without judicial inadequate of an informed review because exercise situation, an appellate In such administrative record. further always agency court remand a case may consideration.” Willard, 507-08
Jones v. Va. (citations omitted). This is such a case. I, therefore, dissent.