COURT OF APPEALS OF VIRGINIA

Present: Judges Humphr eys, Clements and Kelsey Argued at Richmond, Virginia

JAMES FRANCIS GREEN, JR. OPINION BY v. Record Nos. 209 1-03-2 and JUDGE ROBE RT J. HUMPHREYS 2335-03-2 MARCH 2, 2004

KEIL PLUMBING AND HE ATING, INC. AND WCAMC CONTRACTORS’ GROUP SELF-INSURANCE ASSOCIATION

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION T. Bryan Byrne for appellant. Cathie W. Howard (R ichard A. Hobson, on briefs), for appellees.

In two separate appeals, James F. Gr een, Jr. appeals orders of the Workers’ Compensation Commission compelling him to respond to certain discovery requests submitted by Keil Plumbing and Heating a nd WCAMC Contractor s’ Group Self-Insurance Association (collectively “employer”). Specifically, Green cont ends the commission erred in finding that he failed to timely file his response to employer’s motion to compel, by ordering him to respond to four interrogatory questions and to complete an IRS Form 4506, 1 and by refusing to “withdraw”

1 In his brief on appeal, Green states that he “has provided [employer] with an IRS Form 4506 that has been signed” by him and that this “i ssue has been resolved between the parties.” Employer does not dispute these statements. Accord ingly, we do not address this particular issue further in this opinion.- 2 - its order directing him to do so. 2 Because we find that we lack jurisdiction to consider Green’s claims, we dismiss Green’s appeals. I. Background Green sustained an injury while working for employer on June 6, 1996. Employer accepted the injury as compensable, and the commi ssion thereafter awarded Green benefits in the form of weekly temporary total disabili ty compensation, beginning June 19, 1997 and continuing, as well as lifetime medical benefits. As of the date of this appeal, both awards remained open. In February of 2003, employer propounded inte rrogatories and requests for production to Green requesting information concerning his empl oyment status, his banking records, and his income tax records. Green responded to these requests with a “general objection” contending that, pursuant to commission Rule 1:8, employer “lack[ed] standing” to request the information because “no application or claim [was] currently before the [c]ommissi on.” Green otherwise provided some of the information requested but refused to respond fu rther to the requests “unless ordered to do so by the [c]ommission.” On March 12, 2003, employer filed a motion to compel Green to respond to the interrogatories and request for production of documents, contending that pursuant to commission precedent interpreting Rule 1:8, employer had a “rig ht to discover medical evidence relevant to [Green’s] physical and mental condition, as well as a right to discover wage information,” “where there is an open award for at least medical benefits .” (Emphasis in original). Employer attached with its motion a copy of Green’s responses to its discovery.

2 Although Green’s appeals have been assigned separate case numbers, they arise out of the same proceedings and involve similar assign ments of error. Accordingly, we consolidate them for purposes of appeal.- 3 - On March 18, 2003, Green filed a “Respons e to [Employer’s Motion to Compel],” contending that employer’s discovery requests we re “not permissible under Rule 1:8 . . . and [that employer had] made no showing that [Gre en was] working.” In the response, Green requested that the commission en ter an award of sanctions agai nst employer because employer brought “these proceedings with no reasonable grounds .” Green also filed an additional copy of his earlier responses to employer’s discovery requests. The following day, and apparently without having yet reviewed Green’s response to employer’s motion to compel, the deputy commissi oner sent Green a letter, ordering Green to respond to employer’s motion within ten days. The deputy commissioner a dvised Green that the issue of a claimant’s ongoing disability is “alway s a relevant issue before the Commission,” but requested that he respond “within the time period noted” if the matter was “atypical.” Green did not file an additional response. On April 16, 2003, employer sent a letter to the commission conte nding that Green had failed to “respond to the . . . motion to compel.” Accordingly, employer requested that the commission order Green to “respond to this discovery as specifica lly outlined within that motion to compel.” Green responded to the employe r’s letter by notifying the commission that he had, in fact, responded to the motion to compel on March 18, 2003. Nevertheless, the deputy commissioner entered an order on May 1, 2003, e xplicitly finding that Green had failed to respond to the motion to compel, and “therefore” directing Green to “comp letely respond” to the discovery as requested by employer. Green subsequently filed a request for revi ew by the full commission, contending that the deputy commissioner had erred in finding he had not responded to the motion to compel, and in ordering him to respond to the discovery requests . In response to employer’s motion to compel, the full commission ultimately ordered Green to comply with the discovery requests.- 4 - Specifically, the commission found that because Gr een was subject to an open award there were “issues pending” before the commission pursuant to Rule 1:8, making the discovery permissible. Thereafter, Green filed a motion to reconsider w ith the full commission. Green also filed a notice of appeal to this Court. In response to Green’s motion to reconsider , the full commission again ordered Green to comply with the discovery as requested by employ er. Green then filed an additional notice of appeal with this Court. II. Analysis In this consolidated appeal, Green raises si x Questions Presented. During oral argument, we considered the merits of these issues; however, on our own motion, we also ordered the parties to file additional briefs analyzing whether Green’s appeal s to this Court were properly taken, pursuant to Code § 17.1-405. Finding that they were not, we now dismiss Green’s appeals. We begin by recognizing that Green’s appellat e issues are related to a discovery dispute before the commission, and related discovery orders. The Court of Appeals is invested with appellate jurisdiction over “[a]ny final decision” of the comm ission or related interlocutory order “(i) granting, dissolving or denying an injunction or (ii) adjudicating the principles of a cause.” Code § 17.1-405. A final decision “‘disposes of the whole s ubject, gives all the relief that is contemplated, and leaves nothing to be done by the [commission].’” Southwest Vi rginia Hosps., Inc. v. Lipps , 193 Va. 191, 193, 68 S.E.2d 82, 83-84 (1951) (quoting Ryan v. McLeod , 73 Va. (32 Gratt.) 367, 376 (1879)). City of Richmond-Fire & Emergency v. Brandon , 32 Va. App. 787, 789, 531 S.E.2d 22, 22 (2000). We find that the commissi on’s discovery orders in this case do not constitute “final decisions,” properly appealable to this Court pur suant to Code § 17.1-405. We reach this finding

on two bases.- 5 - First, discovery proceedings before the comm ission are authorized and governed by Code § 65.2-703, which states: A. Any party to a proceeding under this title may serve interrogatories or cause the de positions of witnesses residing within or without the Commonwealth to be taken, the costs to be taxed as other costs by the Co mmission. All interrogatories, depositions, or any other disc overy shall conform to rules governing discovery promulgated by the Commission. B. The Commission shall adopt rules governing discovery conforming as nearly as practicable to Part Four of the Rules of the Virginia Supreme Court. Such rules shall be adopted in accordance with and pursuant to th e Administrative Process Act (§ 9-6.14:1 et seq.). As is clear by the plain language of the statute, Code § 65.2-7 03 does not provide an avenue of appeal from a commi ssion decision to grant or deny di scovery, which is separate and apart from a legal proceeding before that admi nistrative body. Indeed, with the exception of provisions concerning appeals from fines and penalties levied by the commission for failure to maintain evidence of compliance with the requirements of Title 65.2, the only provision concerning appeals from commission action is found in Code § 65.2-706. See Jewell Ridge Coal

v. Henderson , 229 Va. 266, 269, 329 S.E.2d 48, 50 (1985); see Code §§ 65.2-805, -807 and -902 (pertaining to fines and penalties). In releva nt part, Code § 65.2-706 stat es that “[n]o appeal

shall be taken from the decision of one commi ssioner until a review of the case has been had

before the full Commission . . . and an award entered by it. Appeals shall lie from such award to the Court of Appeals in the manner provided in the Rules of the Suprem e Court.” (Emphases added). The Supreme Court of Virginia has defi ned the words “such award,” as used in Code § 65.2-706 (formerly Code § 65.1-98), to “mean [a ] final award, that is, a decision of the [commission] granting or denying, or changing or refusing to change, some benefit payable or allowable under the Workers’ Compensation Ac t and leaving nothing to be done except to- 6 - superintend ministerially the execu tion of the award.” Jewell Ridge , 229 Va. at 269, 329 S.E.2d

at 50. The “[c]ommission’s action invo lved in the present cases obviously does not begin to satisfy the final award test.” Id. No part of the co mmission’s decisions affe cted, in any manner, any benefit payable or allowabl e to Green under the Act. In fact, the commission’s decisions could not have affected the open award. Green ’s award had long since been final, leaving nothing for the commission to do but to superintend its administration. See Holly Farms v.

Carter , 15 Va. App. 29, 34, 422 S.E.2d 165, 167 (1992). Furthermore, neither of the parties, nor

the commission sua sponte , had filed an application for review of Green’s award on the basis of a change in condition, pursuant to Code § 65.2-708. Nor does the record reflect that Green was held in contempt or sanctioned for failing to comply with the commission’s orders. 3 Second, as stated above, “[a] fi nal decision is one ‘which disp oses of the whole subject, gives all the relief that is contemplated and l eaves nothing to be done by the court.’” Hoyle v.

3 See Jeff Coal, Inc. v. Phillips , 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993) (“We [have held] that the commission has the same au thority as a court to punish for noncompliance with its discovery orders.”); see also Code § 65.2-202 (stating, in pertinent part, that “the [c]ommission or any member or deputy commis sioner shall have authority to enforce the attendance of all parties in in terest and of witnesses and th e production and examination of books, papers and records and to punish for contempt or disobedience of its or ders as is vested in courts and judges . . . .”); Vokes v. Vokes , 28 Va. App. 349, 355, 504 S.E.2d 865, 868 (1998) (noting that “a contempt order is . . . appealable if it adjudicates all issues of guilt and imposes a sentence” (citation om itted)). See also the United States Supreme Court decision in Church of Scientology v. United States , 506 U.S. 9, 18 n.11 (1992), noting that: [t]here is a distinction in the law between the enforcement of discovery orders directed at parties and the enforcement of discovery orders directed at disi nterested third parties, but that distinction derives from concerns regarding finality, not mootness. As a general rule, a district co urt’s order enforcing a discovery request is not a “final order” s ubject to appellate review. A party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order. (Emphasis added).- 7 - Virginia Employment Commission , 24 Va. App. 533, 537, 484 S.E.2d 132, 133 (1997) (quoting Lipps , 193 Va. at 193, 68 S.E.2d at 83 (citation omitted) ). Consistent with this principle, “[o]rdinarily, . . . discovery orders are not subject to review on direct appeal because they are not final within the contemplation of Code § [ 17.1-405].” America Online v. Anonymous Publicly

Traded Co. , 261 Va. 350, 358, 542 S.E.2d 377, 381 (2001). This is true because, in most cases, the “order in dispute neither adjudicates th e underlying cause nor rela tes to an attendant injunction, but simply resolves an issue arising fro m discovery incidental to the claim, clearly an interlocutory determination over which th is Court has no jurisdiction.” Brandon , 32 Va. App. at 789, 531 S.E.2d at 23. Although the commission he re may have disposed of the issue concerning the discovery, the commission’s decisi on did not dispose of the “whole subject” at issue - which involved, by the parties’ a nd the commission’s own concessions, Green’s underlying open award for benefits. As stated above, the record reflects that Gr een’s rights regarding co mpensation have thus far not been affected. Therefore, it is clear that the commissi on’s “decisions” were not final, appealable decisions as contemplated by C ode §§ 17.1-405 and 65.2-706. Instead, the decisions were merely interlocutory orders that “neither adjudicat e[d] the underlying cause nor relate[d] to an attendant injunction.” Brandon , 32 Va. App. at 789, 531 S.E.2d at 23. Accordingly, we find that we have no jurisdiction to c onsider these issues unde r the circumstances of this case, and we thus dismiss Green’s appeals.

Dismissed

.