COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MALCOLM A. AGNEW 

 MEMORANDUM OPINION*

v. Record No. 1004-97-2 PER CURIAM 

 FEBRUARY 10, 1998 

BAKER ROOFING COMPANY, INC. 

AND 

VIRGINIA EMPLOYMENT COMMISSION 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 (Marian K. Agnew, on briefs), for appellant. 

 (Robert J. Barry; Kaufman & Canoles, P.C., on 

brief), for appellee Baker Roofing Company, 

Inc. 

 (Richard Cullen, Attorney General; Lisa J. 

Rowley, Assistant Attorney General, on 

brief), for appellee Virginia Employment 

Commission. 

 Malcolm A. Agnew appeals the decision of the circuit court 

dismissing his petition for review of the determination of the 

Virginia Employment Commission ("commission") that he was 

ineligible for unemployment benefits. Agnew contends that (1) 

the commission erred in ruling that he received fair and 

reasonable notice of the hearing before the appeals examiner, (2) 

the commission erred by endorsing the decision of the appeals 

examiner based on testimony given by Baker Roofing Company, Inc. 

("Baker") when Agnew was unable to examine and cross-examine 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

Baker's witnesses, (3) the commission erred in endorsing the 

decision of the special examiner, who violated the commission's 

rule for granting a new evidentiary hearing by refusing to take 

Agnew's proffered evidence of Baker's intrinsic and extrinsic 

fraud, and (4) the circuit court erred in failing to reverse the 

commission's ruling on the basis that Agnew failed to appear at 

the appeals examiner's hearing. 

 Upon reviewing the record and briefs of the parties, we 

conclude that this appeal is without merit. Accordingly, we 

summarily affirm the decision of the trial court. See Rule 

5A:27. 

Facts

 Agnew was discharged from his employment with Baker. Agnew 

applied for unemployment compensation benefits, and a claims 

deputy awarded benefits to Agnew. Baker appealed the award, and 

the commission mailed a Notice of Appeal to Agnew on December 7, 

1995. By letter dated December 13, 1995, the commission informed 

Agnew that the appeals hearing was scheduled for December 28, 

1995. Agnew acknowledges that he received the December 7, 1995 

Notice of Appeal, but asserts that he was out of town for part of 

December 1995, and that when he returned to his residence on 

December 27, 1995, he "ignored the mountain of accumulated mail," 

including the notice of the December 28, 1995 hearing date. 

Agnew neglected to open the notice until December 28, 1995, after 

the hearing had already taken place. Therefore, Agnew failed to 
 3 

appear at the hearing. However, Baker appeared at the hearing 

and presented evidence. 

 By decision dated January 4, 1996, the appeals examiner 

reversed the decision of the claims deputy and disqualified Agnew 

from benefits due to misconduct connected to his work. 

 On January 18, 1996, Agnew appealed the appeals examiner's 

decision and, on March 18, 1996, Agnew's attorney noted her 

appearance. On April 9, 1996, the commission issued a Notice of 

Commission Hearing. The notice stated "[t]estimony and evidence 

is limited to whether the commission should direct the taking of 

additional testimony and evidence. Oral argument will be 

permitted on all issues." 

 By letter dated April 9, 1996, the special examiner 

explained to Agnew the guidelines for determining whether the 

commission would accept additional evidence. She further advised 

Agnew that, if she "decide[d] that additional evidence should be 

taken, then [she would] set aside the Appeals Examiner's decision 

and remand the case to the Appeals Examiner for that purpose." 

 On June 5, 1996, the hearing was conducted before the 

special examiner, and, by decision dated August 23, 1996, the 

commission affirmed the appeals examiner's disqualification of 

unemployment benefits. Agnew filed an Objection and Notice of 

Appeal, which the commission treated as a request for 

reconsideration. In this document, Agnew alleged that he was 

denied due process by the special examiner's decision not to 
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allow him to present additional evidence. He further alleged 

that the findings of fact by the appeals examiner were "based on 

extrinsically fraudulent evidence easily refuted when Mr. Agnew 

is permitted to present testimony at a new hearing." 

 By letter dated September 3, 1996, the commission denied 

Agnew's request for reconsideration, stating that the findings of 

fact were supported by the evidence in the record and that the 

law was properly applied to the facts. The commission disagreed 

that Agnew was denied due process or that the findings of the 

appeals examiner were procured by extrinsic fraud. 

 Agnew next filed a Petition for Judicial Review in the 

Circuit Court of Hanover County. Baker filed a demurrer, and the 

trial court sustained the demurrer and dismissed the case. Agnew 

filed a motion for reconsideration, which the trial court also 

denied, holding that no new issues were raised by the motion. 

Notice of Hearing

 Agnew first challenges the sufficiency of the notice of the 

appeals examiner's December 28, 1995 hearing. Code § 60.2-620 

provides that an appeal tribunal, "after affording the claimant 

and any other parties reasonable opportunity for a fair hearing, 

shall have jurisdiction to consider all issues with respect to 

the claim . . . ." Agnew admits that he received the December 7, 

1995 Notice of Appeal from the commission when Baker appealed the 

claims deputy's award for benefits. This notice advised Agnew 

that "in the near future" he would receive notice of a hearing 
 5 

before an appeals examiner and that the purpose of the hearing 

was to "receive evidence from the parties to make a decision with 

respect to the issues involved in the appeal." The notice 

further provided that "[t]his may be the only hearing at which 

you can give evidence. If there are further appeals those 

appeals may only be a review of the evidence given at this 

hearing." 

 Despite receiving this notice, Agnew left his residence for 

several weeks without advising the commission of where he could 

be reached and without having someone monitor his mail. When he 

returned to his residence on December 27, 1995, he "ignored the 

mountain of accumulated mail," which included a notice from the 

commission, dated December 13, 1995, advising him that the 

hearing before the appeals examiner would be held on December 28, 

1995. 

 Agnew asserts that he expected to be notified by registered 

mail or personally served with a notice of the hearing date and 

that he did not receive reasonable notice of the December 28, 

1995 hearing. However, there is no statutory or regulatory 

requirement that such notice must be provided by registered mail 

or personal service. Code § 60.2-620 requires only a "reasonable 

opportunity for a fair hearing." Further, the regulations of the 

commission provide that "[t]he Office of First Level Appeals 

shall endeavor to schedule hearings as soon as possible in the 

order in which appeals are received. Special requests regarding 
 6 

dates or times of hearings will be given consideration; however, 

they need not always be honored." 16 VAC 5-80-20(C). Nothing in 

the record intimates that Agnew advised the commission of his 

impending absence during mid-December or that he made any special 

requests regarding hearing dates that accommodated his travel or 

work schedule. 

 Further, when the commission mailed the notice fifteen days 

before the date of the hearing, Agnew received the notice, yet he 

declined to read the notice until December 28, 1995. Therefore, 

nothing in the record indicates that the commission failed to 

give Agnew a reasonable opportunity for a fair hearing. Instead, 

the record indicates that Agnew did not timely learn of the 

hearing date through his own negligence in disregarding his mail. 

 Therefore, on these facts, we cannot say that the commission 

failed to provide Agnew with reasonable notice of the hearing. 

Agnew's Ability to Examine and Cross-Examine Witnesses

 Agnew next alleges that the commission erred in endorsing 

the decision of the appeals examiner based on hearsay testimony 

presented by Baker when Agnew was "unable to examine and 

cross-examine Baker's witnesses." 

 The regulations for the commission provide that, at the 

appeals examiner's hearing, "the parties, counsel, or duly 

authorized representatives shall be given an opportunity to 

cross-examine witnesses, to inspect documents, and to offer 

evidence in explanation and rebuttal." 16 VAC 5-80-20(F)(4). 
 7 

However, Agnew failed to appear at the appeals examiner's 

hearing. Agnew's failure to appear at the appeals examiner's 

hearing was the result of his own failure to read his mail. And, 

as discussed above, the December 7, 1995 Notice of Appeal from 

the commission advised Agnew that the appeals examiner's hearing 

"may be the only hearing at which [he could] give evidence." 

Therefore, because Agnew was at fault for failing to appear at 

the appeals examiner's hearing, he cannot now complain that he 

was "unable to examine and cross-examine Baker's witnesses." 

 Further, 16 VAC 5-80-20(F) provides that "[t]he appeals 

examiner shall conduct the hearing in such a manner as to 

ascertain the substantive rights of the parties without having to 

be bound by common law, statutory rules of evidence, or technical 

rules of procedure." Therefore, Baker's evidence, even if 

hearsay, as Agnew alleges, was admissible into evidence at the 

appeals examiner's hearing. Moreover, it was within the appeals 

examiner's discretion to determine the probative weight, if any, 

to be given to hearsay evidence. See American Furniture Co. v. 

Graves, 141 Va. 1, 16, 126 S.E. 213, 217 (1925). We cannot say 

that the commission erred in endorsing the decision of the 

appeals examiner for this reason. 

Commission's Refusal to Accept Agnew's Proffered Evidence

 Agnew contends that the commission erred by endorsing the 

decision of the special examiner, who, Agnew alleges, violated 

the commission's rules for granting a new evidentiary hearing by 
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refusing to accept Agnew's proffered evidence of "Baker's 

intrinsic and extrinsic fraud." Essentially, Agnew argues that 

Baker's witnesses perjured themselves at the appeals examiner's 

hearing and that, when Agnew appealed to the commission, the 

commission erred in refusing to accept Agnew's evidence as proof 

that these witnesses testified falsely. 

 The commission's regulations provide that the commission, in 

its discretion, may direct the taking of additional evidence 

provided: 

 1. It is shown that the additional evidence 

is material and not merely cumulative, 

corroborative or collateral, could not have 

been presented at the prior hearing through 

the exercise of due diligence, and is likely 

to produce a different result at a new 

hearing; or 

 2. The record of the proceedings before the 

appeals examiner is insufficient to enable 

the commission to make proper, accurate, or 

complete findings of fact and conclusions of 

law. 

16 VAC 5-80-30(B). 

 The special examiner held a hearing to consider whether 

Agnew's evidence would be accepted, and she heard Agnew's 

arguments for presenting additional evidence. The special 

examiner found that Agnew received the notice of the appeals 

examiner's hearing prior to December 28, 1995; however, he did 

not open the notice to determine the time and date of the hearing 

until the date of the hearing. At the special examiner's 

hearing, Agnew also contended that, although he received the 
 9 

notice and returned to his residence prior to December 28, 1995, 

"he was preoccupied with a project on which he was working." The 

commission did not find that this explanation was sufficient to 

allow the admission of additional evidence, "particularly in 

light of the fact that [Agnew] could have retained counsel 

earlier than March 18, 1996, in order to receive notice of the 

hearing and coordinate an appearance on his behalf." The 

commission was also satisfied that the record was sufficient to 

allow it to make accurate findings of fact and conclusions of 

law. 

 On this record, we cannot say that the commission abused its 

discretion in refusing to direct the taking of Agnew's evidence. 

 Agnew failed to show that the evidence could not have been 

presented at the prior hearing through the exercise of due 

diligence. Some of the evidence Agnew sought to admit was 

information from his own computer and personal files. This 

material was available to Agnew and could have been presented at 

the December 28, 1995 hearing. Agnew also asserts that he could 

not obtain pertinent information from one of his roofing projects 

involving Mary Washington College because the college was closed 

for the Christmas holidays. However, Agnew did not show that he 

even attempted to obtain this information prior to the December 

28, 1995 hearing. In fact, it is unlikely that he did attempt to 

do so given the fact that he was unaware of the December 28, 1995 

hearing until after it occurred. Because the evidence supports 
 10 

the commission's findings, we hold that the commission did not 

abuse its discretion in refusing to accept additional evidence. 

Extrinsic Fraud Claim

 Agnew next argues that the trial court erred in denying 

Agnew due process when it affirmed the commission's decision 

"based on improper testimony and facts not in evidence 

solely . . . because Agnew had not appeared at the December 28, 

1995 hearing . . . ." Agnew alleges that the trial court erred 

in refusing to remand the case to the commission for a hearing on 

his claim of extrinsic fraud. Agnew's basis for the extrinsic 

fraud claim is that the commission failed to afford him a fair 

hearing by denying him a new hearing and opportunity to present 

his evidence. He further asserts that the commission's decision 

was procured by extrinsic fraud based on a record that was 

"replete with Baker's uncontested contentions and allegations 

taken as fact by the Appeals Examiner . . . ." 

 "Extrinsic fraud is 'conduct which prevents a fair 

submission of the controversy to the court.'" Wells Fargo Alarm 

Servs., Inc. v. Virginia Employment Comm'n, 24 Va. App. 377, 386, 

482 S.E.2d 841, 846 (1997) (quoting Jones v. Willard, 224 Va. 

602, 607, 299 S.E.2d 504, 508 (1983)). 

 In Jones, the Court held that 

 when a party aggrieved by a decision of the 

Virginia Employment Commission alleges in his 

petition for review that the decision was 

procured by extrinsic fraud committed by the 

successful party and submits with the 

petition a proffer of proof, verified by 

affidavits of witnesses, the circuit court 
 11 

shall remand the cause to the Commission for 

a hearing on the issue if, upon review of the 

proffer and argument by counsel, the court 

finds the proffer sufficient as a matter of 

law to establish a prima facie case of such 

fraud. 

Jones, 224 Va. at 608, 299 S.E.2d at 508. 

 In Jones, the alleged extrinsic fraud involved the 

petitioner's belief that she was threatened by her former 

employer regarding her unemployment compensation claim, causing 

her to "avoid" the appeals examiner's hearing. Id. at 605, 299 

S.E.2d at 506-07. In Wells Fargo, the alleged extrinsic fraud 

involved the concealment of records by the discharged employee in 

an alleged plan to deceive corporate officials. Wells Fargo, 24 

Va. App. at 386, 482 S.E.2d at 846. Thus, extrinsic fraud 

involves behavior or actions committed by a party that prevents 

"a fair resolution of the case." Id. at 387, 482 S.E.2d at 846. 

 Agnew's affidavits merely allege facts rebutting the 

evidence presented by Baker. Thus, Agnew failed to establish a 

prima facie case of extrinsic fraud. Rather, Agnew's proffered 

evidence went to the issue of witness credibility or whether 

Baker's witnesses committed perjury. Such allegations constitute 

a claim of intrinsic fraud, not extrinsic fraud. See Jones, 224 

Va. at 607, 299 S.E.2d at 508 (Intrinsic fraud involves "perjury, 

forged documents, or other incidents of trial related to issues 

material to the judgment."). Therefore, Agnew's affidavits 

failed to show that Baker engaged in conduct that prevented "a 

fair resolution of the case." Id. Accordingly, because Agnew's 
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proffer to the trial court was insufficient to establish a prima

facie case of extrinsic fraud, the trial court did not err in 

refusing to remand the case to the commission. 

 For the foregoing reasons, the opinion of the trial court is 

affirmed. 

 Affirmed.