COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

IVORY JOHNSON MARTIN 

v. Record No. 0634-95-2 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON 

C & J CLARK AMERICA, INC., ET AL. DECEMBER 29, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert L. Flax (Flax, Embrey & Stout, on 

brief), for appellant. 

 Daniel E. Lynch (Williams & Pierce, on 

brief), for appellees. 

 

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

designated for publication. 

 Ivory Johnson Martin appeals from the decision of the 

Workers' Compensation Commission dismissing his claim with 

prejudice. We find that the record does not show that the 

commission abused its discretion, and we therefore affirm. 

 The claimant sustained a compensable injury by accident on 

August 16, 1990. He received an award for disability benefits 

from the full commission on February 16, 1993. 

 On May 3, 1993, claimant filed an application for a change 

of physicians, payment of medical expenses, and a cost of living 

adjustment. Claimant failed to appear at the hearing on that 

application, and his claim was dismissed without prejudice on 

January 13, 1994. He refiled the claim on January 19, 1994, and 

a hearing was scheduled for April 19, 1994. At the claimant's 

request, the hearing was continued, and rescheduled for September 
- 2 - 

20, 1994. 

 Until this point, the claimant had prosecuted his claim pro

se. He retained counsel prior to the rescheduled hearing. On 

September 13, 1994, counsel requested a continuance so that he 

could prepare for the hearing and submit interrogatories. On 

September 15, Commissioner Joyner denied the continuance on the 

ground that the case had been pending on the docket for over 

eight months. 

 On September 19, counsel for claimant sent a letter to the 

commission office asking that the application for a hearing be 

withdrawn and that the hearing be canceled. Commissioner 

Joyner's office by telephone informed all counsel that if the 

claim was not withdrawn and the claimant failed to appear at the 

hearing, the claim would be dismissed with prejudice. On 

September 20, counsel for claimant claims to have sent two 

letters to the commission office. The letters indicate that they 

were sent by both mail and fax. One states that the claim was 

being withdrawn; the other indicates that the "application" was 

being withdrawn. The letter withdrawing the claim does not 

indicate the time it was faxed or that it was received by the 

commission. The hearing was scheduled to begin at 2:00 p.m. in 

Danville, Virginia. The commission has no record of receiving 

the fax. The parties agree that prior to the hearing, counsel 

for the claimant informed employer's counsel by telephone that 

the claim had been withdrawn. Employer's counsel states that he 

contacted Commissioner Joyner's office and was informed that the 
- 3 - 

claim had not yet been withdrawn. He therefore appeared at the 

hearing, and Commissioner Joyner dismissed the claim with 

prejudice. The full commission ruled that the claim was properly 

dismissed for "abusing the hearing process." 

 The commission has the same authority as a court to punish 

for noncompliance with its orders. See Jeff Coal, Inc. v. 

Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993) 

(discovery orders); Code § 65.2-202. In addition to its 

statutory 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. The commission has 

the authority to adopt rules to carry out the provisions of the 

Workers' Compensation Act. Code § 65.2-201(A). 

 Therefore, 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. Jeff Coal, 16 Va. App. at 277, 430 

S.E.2d at 716. On this record we cannot find that the commission 

abused its discretion. 

 Affirmed.