COURT OF APPEALS OF VIRGINIA

Present: Judges Humphr eys, Alston and Decker Argued at Richmond, Virginia

CHESTERFIELD COUNT Y PUBLIC SCHOOLS MEMORANDUM OPINION * BY v. Record No. 0069-14-2 J UDGE ROBERT J. HUMPHREYS AUGUST 12, 2014 LAURA A. PATRICK

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael P. Kozak, Senior Assist ant County Attorney (Chesterfield County Attorney’s Office, on brief), for appellant. Robert L. Flax (Robert L. Fl ax, P.C., on brief), for appellee.

Chesterfield County Public Schools (“Chesterfield County” ) appeals the decision of the Virginia Workers’ Compensation Commission (“th e commission”) to award temporary partial disability benefits to Laura A. Patrick (“Patric k”). Chesterfield Count y’s argument on appeal is

that the commission’s decision to award Patrick temporary partial disability benefits denied it due process of law because the parties only litigated the issue of temporar y total disability

benefits and it should have been a fforded the opportunity to contes t a temporary partial disability benefits award. For the reasons that follow, we affirm the decision of the commission. While working as a school bus driver for Chesterfield County, Patrick suffered a compensable injury on May 29, 2012 from a back wards fall. The commission awarded her medical benefits and temporary total disability benefits. On December 27, 2012, Patrick filed an amended claim alleging her injuries were actually more severe than anticipated. On January 11, 2013, Chesterfield County filed an application for a hearing reque sting that Patrick’s outstanding

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - temporary total disability award be terminated b ecause she had been released to her pre-injury work as of January 2, 2013. The commission suspended Patrick’s disability payments pending a hearing before the deputy commissioner to resolve both Patrick’s amended claim and Chesterfield County’ s application. Patrick saw several physicians from the time that she was injured unt il the hearing before the deputy commissioner. As of January 2, 2013, Dr. Glick and Dr. McDermott noted that Patrick was ready for “full release to work wit hout restrictions as a bus driver.” However, Patrick claimed that she was continuing to experience pain in early January 2013 despite Dr. Glick’s opinion that there wa s no objective evidence that s upported her complaints. After several referrals, Patrick wa s treated by Dr. Valente on Apri l 10, 2013. Dr. Valente found that Patrick should remain out of work until May 15, 2013. Due to Patrick’s improvement resulting from a new course of treatment, Dr. Valente released her to part-time work on May 14, 2013. On May 20, 2013, ten days before the hearing before the deputy commissioner, Patrick returned to work on a part-time basis. At the May 30, 2013 hearing before the de puty commissioner, in defense against Chesterfield County’s application, Patrick claimed that she continued to be disabled as a result of the original injury. Chesterfield County asse rted that based on Dr. Glick’s January 2, 2013 release Patrick should be back to full-duty wo rk. At the outset of the hearing, the deputy

commissioner asked Chesterfield County, “[I]f I find that she is still disabled for a reason causally related to the accident , do you have any objection to m odifying the award to temporary partial [disability benefits]?” Chesterfie ld County responded “no.” Then the deputy commissioner asked, “[I]f I find she was released to full-duty, it’s your contention I would just cut it off and then she would not be due any more benefits?” Cheste rfield County responded, “That’s correct.” The deputy commissioner note d, and Chesterfield County agreed, that the- 3 - “Defendants have no objection to me awarding te mporary partial as of May 20[, 2013] if the Employer’s application fails.” The deputy commissioner found that Chesterf ield County proved that “the claimant was released to full duty as of January 2, 2013,” and th erefore granted its application. However, the deputy commissioner additionally concluded that “Dr. Valente’s records support a finding that [Patrick] was restricted from returning to full duty for reasons causally relate d to the injury as of the day she returned to work May 20, 2013.” Although Patrick did not raise the issue of temporary partial disability benefits in her am ended claim—which was notably filed before she returned to work—the deputy commissioner found that “the claimant’s asse rtion, at the hearing, that she had returned to work was an implicit requ est for temporary partial disability benefits.” Consequently, he terminated temporary total disa bility benefits as of January 11, 2013, but also awarded Patrick temporary partial disa bility benefits as of May 20, 2013. The commission affirmed the deputy commissi oner’s decision to terminate Patrick’s temporary total disability benefits as of Ja nuary 11, 2013 because it found no error in the finding that she was released to pre-in jury work as of January 2, 2013. With respect to Patrick’s temporary partial disability benefits award, Ch esterfield County requested that the commission

reverse and remand and allow it to be heard on the issue of partial disability because it had only agreed to temporary partial disabi lity benefits if the existing tem porary total disability benefits

were reinstated. The commission found that remanding on the issue of temporary partial disability benefits was “not n ecessary,” because Patrick “defende d the employer’s application for hearing by asserting she remained disabled, an implicit request for ongoing disability benefits.” Relying on the opinion of Dr. Valente, the commi ssion found that the deputy commissioner did not err in finding that Patrick met her burden of proving causally re lated partial disability as of the date she returned to work part-time.- 4 - On appeal before this Court, Chesterfie ld County argues that th e commission’s decision to award Patrick temporary partial disability benefits denied it due process of law because Patrick never requested temporary partial disability benefits an d the parties only litigated the issue of temporary total disability benefits. Specifical ly it argues that the commission’s decision

to treat the fact that Patrick had returned to work as an implicit request for partial disability was a “post-hearing sua sponte amendment of Patrick’s claim,” whic h denied it due process of law. Chesterfield County asse rts that at the hearing before th e deputy commissioner, the parties stipulated that if the empl oyer’s application to terminat e total disability benefits was denied , and total benefits were reinstated, only then did it have no objection to the deputy commissioner modifying Patrick’s award to te mporary partial disability bene fits effective the day Patrick returned to part-time work. 1 Chesterfield County thus asserts th at the only issue that was “fully litigated” was whether Patrick was entitled to total disa bility benefits and, ther efore, it lacked fair notice and opportunity to defend the claim for temporary partial disability benefits. The issue before this Court is very narrow. The sole question this Court must resolve is whether Chesterfield County was denied due pr ocess of law by the commission’s decision to award temporary partial disability benefits. Wh ile the commission’s factual determinations are binding on this Court, Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991), whether the commission’s decision to award Patrick partia l disability benefits denied Chesterfield County due process presents a question of law which this Court reviews de novo

. See Nelson Cnty. Sch. v. Woodson, 45 Va . App. 674, 677, 613 S.E.2d 480, 482 (2005). “Pleading requirements in administrative pro ceedings . . . are traditionally more informal than judicial proceedings.” Sergio’s Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207

1 Patrick disputes that there wa s a “stipulation.” It appears from the record that rather than a stipulation between the pa rties, Chesterfield County simply responded as indicated to a question posed by the deputy commissioner.- 5 - (1986). Thus, “‘while some degree of formality or the use of standardized uniform procedures and forms may be more conducive to an orderly a nd expeditious process, ri gid or technical rules of pleading . . . shall not apply so long as the pr ocedures adopted protect the substantial rights of the parties.’” Nelson Cnty. Sch., 45 Va. App. at 679, 613 S.E.2d at 483 (quoting Sergio’s Pizza, 1 Va. App. at 376, 339 S.E.2d at 207); see also Henrico Pub. Utils. v. Taylor, 34 Va. App. 233, 243, 540 S.E.2d 501, 506-07 (2001) (“In the context of a workers’ compensation proceeding, due process ‘is flexible and calls for such proce dural protections as th e particular situation demands.’” (quoting Duncan v. ABF Freight Sys., Inc., 20 Va. App. 418, 422, 457 S.E.2d 424, 426 (1995))). “In other words, ‘the procedure utilized [need only] afford the parties minimal due process safeguards.’” Nelson Cnty. Sch., 45 Va. App. at 679, 613 S.E.2d at 483 (quoting Sergio’s Pizza, 1 Va. App. at 376, 339 S.E.2d at 207). “To satisfy minimal due process safeguards, the challenged procedure must provi de ‘notice reasonably calculated, under all circumstances, to apprise interest ed parties of the pende ncy of the action and to afford them an opportunity to present their ob jections.’” Id. at 680-81, 613 S.E.2d at 483 (quoting Schwab Constr. v. McCarter, 25 Va. App. 104, 111, 486 S. E.2d 562, 565 (1997)). Thus, “as long as the employee’s application for benefits provides an em ployer with notice ‘of the potential issues in a case,’ the claim will satisfy ‘minimal due proc ess safeguards.’” Id. (quoting Johnson v. Paul Johnson Plastering, 37 Va. App. 716, 723, 561 S.E .2d 40, 44 (2002), rev’d in part on other grounds, 265 Va. 237, 576 S.E.2d 447 (2003)). Chesterfield County relies on WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 494 S.E.2d 147 (1997), to support its proposi tion that the commission denied it due process of law by treating Patrick’s hearin g testimony as an implicit request for temporary partial disability benefits. In WLR Foods, Inc., the claimant’s application requested wa ge benefits beginning on February 1, 1996—the application was never ame nded to encompass any greater amount of time- 6 - and the claimant’s pleadings and testimony only focused on his condition after February 1, 1996. Id. at 228, 494 S.E.2d at 151. The commissi on awarded the claimant wage benefits pre-dating February 1, 1996. Id. at 226, 494 S. E.2d at 150. The “[e]mployer ha d no notice of a potential award of wage benefits concerning any earli er time period until the commission rendered its decision.” Id. at 228, 494 S.E.2d at 151. This Court found that the “commission’s procedure ‘precluded an adequate opportunity to defend [again st an award for this time period] since it was litigated only as [a claim for benefits beginning Fe bruary 1, 1996].’” Id. (quoting Sergio’s Pizza, 1 Va. App. at 376, 339 S.E.2d at 208). “Had employe r been on notice that it would be required to defend against a claim for wage benefits durin g this time, it could have addressed this period

in detail and obtained additional information.” Id. at 228-29, 494 S.E.2d at 151. Therefore this Court concluded that “[t]he commission’s sua sponte award of unrequested benefits denied employer this opportunity and ‘fails to comport with due process notions of fair play and substantial justice.’” Id. at 229, 494 S.E.2d at 151(quoting Sergio’s Pizza, 1 Va. App. at 376, 339 S.E.2d at 208). This case is easily distinguishable from WLR Foods, Inc. Chesterfield County argues that the only issue actually litigated was whether Patrick was entitled to total disability benefits; however, given the assignment of error as fr amed by Chesterfield County, the only question

before this Court is whet her Chesterfield County had “ notice of a potential [temporary partial disability] award.” Id. at 227-28, 494 S.E.2d at 151 (emphasis added). Unlike WLR Foods, Inc., where the commission awarded unrequested benefits for a period of time never contemplated by either party, Chesterfield Count y cannot claim it was surprised by an award of temporary partial disability benefits. As her employer, Chesterfie ld County knew that Patrick had returned to work part-time prior to the hearing before the deputy commissioner. Patrick di d not dispute that she was able, and in fact had returned to work part -time. The nature of what Chesterfield County- 7 - characterizes as a “stipulation” demonstrates th at if the deputy commi ssioner terminated her existing total disability award, Patrick was necessari ly seeking a partial disability award as of the

date she returned to work part-time. Moreover, Chesterfield County was not pr ejudiced by the commission’ s decision to treat Patrick’s testimony as an implicit request for on- going disability benefits . See id. at 227, 494 S.E.2d at 151 (“Where the commission modifies a cl aim at the hearing or review stage without advising the employer in advance, ‘the dispos itive issue . . . is wh ether the employer was prejudiced’ by the lack of no tice.” (quoting Crystal City Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408 S.E.2d 252, 253-544 (1991))). Patrick’s enti re defense to Chesterfield County’s application to terminate her tem porary total disability benefits was that she was in fact still disabled and was only able to return to work part-time as of May 20, 2013 due to the medical treatment provided by Dr. Valente. Consequentl y, Chesterfield County’s evidence disputing this defense, or alternatively dispu ting a claim for partial disability, are necessarily the same. Furthermore, at the hearing before the de puty commissioner, both Pa trick and Chesterfield County’s counsel extensively que stioned Patrick regarding the post-January 2013 treatment she received for her injury. In sum, Chesterfield County’s mistaken a ssumption that the commission’s decision to grant its application to terminate Patrick’s tem porary total disability benefits precluded an additional finding that Patrick was partially disabled as of May 20, 2013, does not amount to circumstances that offend due proces s notions of fair play and subs tantial justice. Chesterfield County was on notice of the possibility of a partial disability award and had a fair opportunity to present evidence that disputed her claim that as of May 20, 2013 she was only released to part-time duty. Chesterfield County was not de nied due process by the commission’s decision to- 8 - award Patrick temporary partial di sability benefits, and we ther efore affirm the commission’s judgment.

Affirmed.