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 
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 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 
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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 
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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 
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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.