COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Salem, Virginia 

CITY OF ROANOKE FIRE DEPARTMENT 

v. Record No. 2561-94-3 MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

JOHN H. ANDERSON DECEMBER 19, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Monica L. Taylor (James C. Joyce, Jr.; 

Gentry, Locke, Rakes & Moore, on briefs), for 

appellant. 

 Mary L. Poletti (Clifton A. Woodrum; Dodson, 

Pence, Viar, Woodrum & Mackey, on brief), for 

appellee. 

 The City of Roanoke Fire Department (employer) appeals from 

a decision of the Workers' Compensation Commission (commission) 

affirming the deputy commissioner's finding that (1) a de facto

award of compensation existed between John H. Anderson (claimant) 

and employer, and (2) employer defended the claim without 

reasonable grounds. Employer contends that (1) the de facto

award was erroneously made by the commission, (2) it was 

erroneously precluded from presenting evidence that claimant's 

disability was unrelated to his occupational disease, (3) it was 

erroneously refused permission to proffer evidence in support of 

its causation defense; and (4) the commission abused its 

discretion in assessing attorney's fees against employer. 

 

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

designated for publication. 
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 Claimant is a fire marshal employed by employer. On May 28, 

1992, claimant was found to be suffering from hypertension and 

was unable to work as a fire marshal. Employer accepted 

claimant's condition as compensable and an award was entered by 

the commission. Claimant returned to work in October 1992 and 

was assigned light-duty work. Approximately three months 

thereafter, he returned to full pre-injury employment. The 

parties executed an agreed statement of facts that terminated 

claimant's benefits. 

 In July 1993, approximately seven months after claimant's 

benefits had been terminated, he again left his work place on the 

advice of Dr. Jorge Roman who had previously treated claimant for 

hypertension. From July 14, 1993, until the end of February or 

the beginning of March, 1994, for approximately eight months, 

employer paid claimant workers' compensation benefits. Trena 

Hicks (Hicks), a claims adjuster for the city, explained that 

while a determination is being made whether a disability is 

work-related, the city, which is self-insured, pays employees 

workers' compensation at two-thirds of their salary rather than 

sick leave at one hundred percent of their salary. This approach 

prevents employees from having to pay the city back if it is 

later determined that the condition or injury for which they have 

been receiving sick leave is actually compensable under the 

Workers' Compensation Act. 

 When employer advised claimant that it would no longer pay 
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benefits, asserting that it had determined that claimant's 

disability was not related to his employment, on March 18, 1994, 

claimant filed an application for hearing asking that benefits 

payments be required to resume. In that application, claimant 

gave July 23, 1992 as the date of injury, stating work-related 

hypertension as the basis for the request and "change of 

condition" as the reason for the hearing. Claimant asserted that 

the nature of the change was that "[E]mployer cut off benefits in 

contradiction of medical reports by treating physician." 

 At the outset of the requested hearing, the deputy 

commissioner framed the issue: 

This is before us upon the claimant's claim 

requesting resumption of compensation which 

[employer] had been voluntarily paying the 

claimant since July 14th, 1993 but which was 

stopped during March 1994. 

No objection was made and, in response, employer stated its 

defense: 

Our position is that [claimant's] disability 

is not related to his compensable condition 

but rather is related to his failure to 

follow the directions--medical directions of 

his physicians. Specifically, to take the 

antihypertensive medication and the diuretics 

that were prescribed by his doctor. 

Prior to any testimony being taken at the hearing, the deputy 

commissioner ruled that the case was not in the proper procedural 

posture to permit employer to raise and present evidence on its 

causation defense. Based on this decision, the deputy 

commissioner refused to permit employer to proffer any evidence 
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regarding such defense. The deputy commissioner excluded (1) 

testimony from Hicks on the question of causation including two 

charts related to claimant's medications, prescription records 

from the Revco Pharmacy or a proffer of what those records would 

show, and (2) testimony from a druggist who had been subpoenaed 

to the hearing or a proffer of the testimony of the druggist. 

 At the hearing, claimant testified that he had not met with 

anyone from the city since June of 1993, and that he had not been 

advised either verbally or in writing that the city was only 

making workers' compensation payments to him while they 

investigated whether his condition was related to his 

hypertension. No supplemental memorandum of agreement was 

executed by the parties. 

 Hicks testified that the excuse claimant submitted in July 

1993 was not specific as to why he was unable to work. Hicks 

advised claimant that she "needed a more definitive excuse 

. . . before a decision could be made as to how he would be 

carried." Hicks stated that she discussed with claimant "the 

fact that he was certainly entitled to workers' comp or sick 

leave but we needed doctor's information in detail to make those 

determinations." Hicks then received a letter from claimant's 

counsel asking that Hicks have no further communication with 

claimant. 

 Hicks further testified that Dr. Roman, claimant's treating 

physician, failed to supply her with medical reports until 
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February 1994 when she stopped paying his charges for services 

and medications. The prescriptions, she said, raised questions 

in her mind whether the claim was compensable. She added, "I'd 

get one piece of information which would say he was having 

headaches not related to the job. Then when I'd question a 

prescription for pain medication they'd say, 'No, I think it's 

secondary to hypertension.'" According to Hicks, these records 

also showed a problem with claimant's compliance with Dr. Roman's 

prescriptions for medications. 

 Hicks testified that she did not reach an agreement with 

claimant in regard to compensation or compromise of his claim. 

However, she did testify that "there was an assumption that 

[claimant] does have hypertension and we had approved his claim. 

We had not denied it." She further testified that payments to 

claimant were "being carried [on the books] as Workers' Comp pay, 

in all honesty." (Emphasis added.) 

 Upon this record, the deputy commissioner ruled from the 

bench that there was a "de facto award" in place by virtue of 

employer's voluntary payment of workers' compensation, and he 

entered a supplemental award in favor of claimant for 

compensation during his recurrent incapacity beginning July 14, 

1994. The ruling from the bench was later memorialized in an 

opinion dated August 8, 1994. In that opinion, the deputy 

commissioner also assessed claimant's attorney's fee in the 

amount of $700 against employer "for having defended this matter 
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without reasonable ground." 

 Employer filed an application for review and, after 

consideration thereof, the commission affirmed the decision of 

the deputy commissioner. 

 The deputy commissioner and the commission relied upon 

National Linen Services v. McGuinn, 5 Va. App. 265, 362 S.E.2d 

187 (1987), to support their decisions that employer's conduct 

created a de facto award. McGuinn is factually distinguishable 

from the case before us, however, the principle is on point. 

 In McGuinn, the initial injury occurred in August 1983. 

Without executing a memorandum of agreement or requesting the 

commission to enter an award, National paid McGuinn benefits from 

November 1983 to December 1984. On December 19, 1984, McGuinn 

returned to light duty but could not perform the work. When 

McGuinn failed to work, National discontinued payments. On 

January 23, 1985, McGuinn filed an application for hearing, 

claiming continued entitlements and that National had refused to 

execute and file a memorandum of agreement. National did not 

contest McGuinn's claim of a compensable injury. Instead, it 

defended on the ground that McGuinn had failed to market his 

remaining capacity. In an en banc decision, this Court held, 

"that because National Linen paid compensation benefits to 

McGuinn for thirteen months and failed to file with the 

commission a memorandum of agreement" a de facto award had been 

established which National was obligated to honor. McGuinn, 
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5 Va. App. at 270, 362 S.E.2d at 189. This Court added that if 

that award is to be altered, the burden is on National to prove 

by a preponderance of the evidence "a change in condition" as 

required by Code § 65.1-93. Id., 362 S.E.2d at 190. 

McGuinn does not prohibit evidence that claimant's condition 

is not compensable, and neither the deputy commissioner nor the 

commission make that assertion. The deputy commissioner refused 

to consider the causation evidence saying that the posture of 

this case did not require it. In approving that ruling, the 

commission said: 

 The employer sought to introduce evidence 

that the claimant's disability was not caused 

by his work-related hypertension, but by his 

failure to take his medications. The Deputy 

Commissioner ruled that having reached an 

agreement on compensability, the employer 

could not now challenge causation. We find 

that the Deputy Commissioner's procedural 

ruling is correct. Because there was a de

facto award in effect, the employer must 

comply with Virginia Code § 65.2-708 and Rule 

1.4(C). This entails paying compensation 

through the date of the filing of an 

application for a change in condition. In 

this case, the employer unilaterally 

terminated compensation in March, 1994, 

forcing the claimant to hire legal counsel 

and deplete his accrued sick and holiday pay. 

(Emphasis added.) 

 We hold that, under the facts of this case, the commission 

did not err when it held that employer's assumption that the 

claim was compensable, together with the fact that the 

investigation continued for more than eight months even after 

claimant returned to light duty, sufficiently supported the 
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award. We further hold that the award having been established, 

the burden was on employer to specifically plead a change of 

condition pursuant to the requirements of Code § 65.2-708 if it 

wished to present the evidence refused by the deputy. Until 

then, the case was not in a posture to consider that evidence. 

 Finally, employer asserts that the commission abused its 

discretion when it assessed attorney's fees to employer. The 

award of fees is left largely to the discretion of the commission 

and will not be disturbed in the absence of an abuse of 

discretion. Jensen Press v. Ale, 1 Va. App. 153, 159, 336 S.E.2d 

522, 525-26 (1985). We cannot say that the commission's 

determination that an award of fees should be made discloses an 

abuse of its discretion. 

 Accordingly, the decision of the commission is affirmed. 

 Affirmed.