COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Senior Judge Cole 

CHARLES R. WINGATE 

 MEMORANDUM OPINION*

v. Record No. 2151-00-4 PER CURIAM 

 DECEMBER 12, 2000 

ASSETT PROTECTION TEAM, INC. AND 

 INSURANCE CO. OF THE STATE OF PENNSYLVANIA/ 

 AMERICAN INTERNATIONAL ADJUSTMENT CO., INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Charles R. Wingate, pro se, on brief). 

 (Susan A. Evans; Siciliano, Ellis, Dyer & 

Boccarosse, on brief), for appellees. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 The Workers' Compensation Commission dismissed Charles R. 

Wingate's (claimant) February 2, 2000 claim for benefits, 

without prejudice, because of his failure to comply with a 

discovery order requiring that he submit to a discovery 

deposition within fourteen days. This was the sole issue before 

the commission when it rendered its decision. Although claimant 

raises arguments related to the Americans with Disabilities Act 

and violations of his civil rights, we address, as the issue on 

appeal, the correctness of the commission's ruling. 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. 
 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 October 5, 1999, this 

Court rendered an opinion affirming the commission's decision 

dismissing, without prejudice, claimant's previous claim filed 

on June 1, 1998, due to his failure to submit to a discovery 

deposition after being ordered to do so by the commission. 

 On February 2, 2000, claimant re-filed his claim with the 

commission. On March 21, 2000, employer's counsel sent a letter 

to claimant, who resides in Texas, requesting that he contact 

her office to arrange for his discovery deposition to be taken 

via telephone. On March 23, 2000, claimant contacted employer's 

counsel and refused to submit to a discovery deposition. 

 In a letter dated April 17, 2000, employer's counsel 

informed the commission that claimant had refused to arrange his 

discovery deposition and requested that the commission compel 

him to submit to the deposition or dismiss his claim due to his 

repeated failure to submit to the deposition as required by Rule 

1:8, Rules of the Virginia Workers' Compensation Commission, the 

commission, and this Court. 

 On April 19, 2000, the deputy commissioner entered an order 

requiring claimant to submit to a telephonic discovery 

deposition within fourteen days. The order contained the 

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following language: "Failure to do so will result in dismissal 

of the claim with prejudice." 

 In a letter dated May 5, 2000, employer's counsel informed 

the commission that claimant had not submitted to a telephonic 

deposition pursuant to the commission's order. Employer 

requested that the commission dismiss the claim with prejudice. 

 On May 15, 2000, the deputy commissioner entered an order 

dismissing the February 2, 2000 claim with prejudice for failure 

to submit to a telephonic deposition in a timely manner. 

 Claimant sent a letter to the commission via certified mail 

on May 2, 2000 "in response to [employer's counsel's] motion for 

dismissal due to failure to submit to a telephonic deposition." 

In the letter, claimant asserted that he was pursuing light-duty 

work out-of-state and would be "indisposed until May 12, 2000." 

Thus, he stated that he would be unable to comply with the order 

for a telephonic deposition. Claimant also asserted that 

employer's counsel should not be able to ask him any questions 

about his disability pursuant to the Americans with Disabilities 

Act and he asserted that employer had violated his civil rights. 

The commission treated this letter as a request for review of 

the deputy commissioner's May 15, 2000 order. 

 On review, the commission ruled that claimant is required 

to allow employer to depose him and found no basis upon which to 

place restrictions on relevant questions to be asked during the 

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discovery deposition. In so ruling, the commission found as 

follows: 

 We find that claimant has chronically 

failed to comply with Orders of the 

Commission in regard to discovery matters. 

We further find that dismissal with 

prejudice is a harsh result even when a 

claimant has been dilatory in regard to 

discovery matters. Accordingly, we AMEND 

the deputy commissioner's May 15, 2000, 

Order to dismiss the claimant's current 

claim without prejudice; however, we impose 

the following condition: The Commission 

will accept a new claim in this matter only 

if the claimant submits documentation 

endorsed by the defendants' counsel that he 

has complied with the Commission's Order 

that he submit to a telephonic deposition. 

The Workers' Compensation Commission cannot 

process or adjudicate claims brought 

pursuant to the Americans with Disabilities 

Act or claims alleging civil rights 

violations. 

 We find that this case is controlled by the reasoning set 

forth in our opinion in claimant's previous appeal to this Court 

styled, Wingate v. Assett Protection Team, Inc., et al., No. 

2569-98-4 (Va. Ct. App. Oct. 5, 1999). The present case deals 

with the same issue addressed in our previous opinion. Based 

upon the reasons set forth in that opinion and based upon this 

record, we find that the commission did not abuse its discretion 

in dismissing claimant's claim, without prejudice, for his 

failure to submit to a discovery deposition. 

 For these reasons, we affirm the commission's decision. 

Affirmed.

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