COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

RADMILA PAVLICEK 

v. Record No. 2420-94-1 OPINION BY 

 JUDGE RICHARD S. BRAY 

JERABEK, INC., SEPTEMBER 12, 1995 

 t/a MONASTERY RESTAURANT, ET AL. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Karen M. Rye for appellant. 

 Mary G. Commander (Goldblatt, Lipkin & Cohen, on 

brief), for appellee Jerabek, Inc., t/a Monastery 

Restaurant. 

 No brief or argument for appellee Uninsured 

Employer's Fund. 

 

 Incidental to an award of benefits to Radmila Pavlicek 

(claimant) under the Virginia Workers' Compensation Act (Act), 

claimant's counsel (counsel) petitioned the Workers' Compensation 

Commission (commission) for attorney's fees payable from that 

portion of the recovery "which benefits the . . . health care 

provider[s]," pursuant to Code § 65.2-714.1

 The commission denied 

the relief, concluding that it did not relate to a "contested 

claim," and claimant appeals. Jerabek, Inc. (employer) urges that 

we dismiss the appeal, contending that the health care providers 

were indispensable, though excluded, parties. Employer also 

concurs in the commission's finding that the underlying claim was 

not contested. For the reasons that follow, we reverse the 

decision. 

 

 1Although not applicable to these proceedings, Code § 65.2-714 

was amended during the 1995 session of the General Assembly. 
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 The pertinent facts are substantially uncontroverted. On 

February 19, 1994, claimant was accidentally injured incidental to 

her employment. She subsequently retained counsel to pursue 

benefits under the Act, and a claim was lodged with the commission 

on March 11, 1994, accompanied by interrogatories and a request for 

production directed to employer. Employer received notice of the 

filing on March 12, 1994, and immediately retained counsel, Ms. 

Mary G. Commander, who "thereafter began [an] investigation into 

the facts of the injury, wages, insurance coverage, etc." 

 On March 30, 1994, the commission noticed employer and 

Lumbermen's Mutual Casualty Co. (Lumbermen's), then identified as 

employer's "carrier," of the pending claim, together with a request 

for related documentation. This correspondence was followed on 

April 1, 1994, by an order of the commission directing the 

"carrier" to complete and return attached form "Order(s)" reporting 

the status of the claim. In response, the commission received the 

"Employer's First Report Of Accident" from Ms. Commander on April 

14, 1994, accompanied by a letter which expressed her 

"understanding that Kemper2 will be assuming the handling, and 

defense, if any, of this claim." On that same date, however, 

Kemper notified the commission that it had declined coverage to 

employer. 

 Counsel acknowledged receipt of Ms. Commander's letter to the 

commission "regarding [the] insurance coverage issue" and requested 

 2Lumbermen's is related to the Kemper National Insurance 

Companies. 
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immediate clarification due to claimant's "financial hardship." In 

later correspondence to Ms. Commander, dated April 22, 1994, 

counsel noted that "present information" indicated employer was 

"uninsured" and, again, requested a "timely" resolution of this 

issue. On April 23, 1994, Ms. Commander answered: 

 In response to your concern, the Commission has 

never been advised that there is coverage so I 

assume that they have been treating this (or 

should have been, in any event) as a case which 

should be handled through the Uninsured Fund. 

That has been my assumption throughout. You 

may want to confirm this directly. 

 In the interim, counsel moved the commission, on April 4, 

1994, to compel employer's response to the pending discovery. 

Thereafter, on April 20, 1994, employer answered claimant's 

interrogatories, declaring its intention to assert the defense that 

"[c]laimant was a casual worker," not committed to "working on a 

regular basis," with a "full-time job elsewhere."3

 Employer also 

reported claimant's wage at $12.00 per week, plus tips. These 

responses prompted counsel to propound supplemental interrogatories 

to employer, "narrowly tailored" to the "casual worker" defense and 

wage issues. By letter to counsel dated April 23, 1994, Ms. 

Commander then advised that she did "not believe that there is a 

defense to the claim" and denied the existence of "any records" of 

claimant's wages. 

 Pursuing the wage issue, counsel noticed employer to take the 

depositions of its employee, Anna Jerabek. However, Ms. Commander 

 3Employer further noted that "[n]o other defenses are known at 

this time." 
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moved to quash, arguing that employer had "no idea whatsoever as to 

claimant's average weekly wage" and that the scheduled time and 

date conflicted with a prior commitment. The commission thereafter 

quashed the notice, "for good cause shown," and "encourage[d] the 

parties to discuss the issue of the average weekly wage and attempt 

to reach an agreement" before again pursuing depositions. When 

subsequent settlement negotiations proved unsuccessful, the wage 

issue was submitted for determination by the commission. 

 Following a hearing, the deputy, by opinion dated September 7, 

1994, awarded temporary total disability and medical benefits to 

claimant, a fee to counsel and imposed a fine upon employer for 

failure to maintain the requisite insurance.4

 Counsel thereafter 

moved the commission to allow additional attorney's fees from those 

monies payable from the award to claimant's health care providers 

pursuant to Code § 65.2-714, mailing notice of this claim to the 

several providers in accordance with Rule 18 of the Workers' 

Compensation Commission Rules. Counsel also submitted to the 

commission numerous proposed orders, each of which was agreed to 

and endorsed by a named health care provider and allotted a 

specific fee to counsel from the award to such provider. 

 Before the commission acted on counsel's request, Ms. 

Commander objected, contending that the underlying claim was not 

contested and had not required "the services of an attorney" from 

 4At the request of counsel, the award was ordered payable from 

the Uninsured Employer's Fund on October 3, 1994. No benefits were 

received by claimant from employer, voluntary or otherwise, from 

the date of the accident until payment from the uninsured fund. 
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"which the health care providers benefited." Counsel disagreed 

and, following much correspondence between counsel, Ms. Commander, 

and the commission, a deputy determined that the original claim 

"was not 'contested'" and "[t]he Commission does not have 

jurisdiction to award attorney's fees, pursuant to Code § 65.2-714, 

in uncontested cases." On review, the commission concurred and 

counsel now appeals to this Court. 

THE MOTION TO DISMISS

 As a threshold issue, employer urges us to dismiss the appeal 

"for failure of the appellant/claimant to join all indispensable 

parties." A single health care provider among the many that served 

claimant, Sentara Health System, Sentara Norfolk General Hospital 

(Sentara), filed a like motion through employer's attorney, Ms. 

Commander, despite its earlier endorsement, "Seen and Approved," of 

a proposed order submitted to the commission which specifically 

awarded attorney's fees to counsel. 

 Code § 65.2-714(A) provides, in pertinent part, that: 

 Fees of attorneys and physicians and charges of 

hospitals for services, whether employed by 

employer, employee or insurance carrier under 

this title, shall be subject to the approval 

and award of the Commission. 

Id. Further, 

 [i]f a contested claim is held to be 

compensable under this title and, after a 

hearing on the claim on its merits or after 

abandonment of a defense by the employer or 

insurance carrier, benefits for medical 
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services are awarded and inure to the benefit 

of a third party insurance carrier or health 

care provider, the Commission shall award to 

the employee's attorney a reasonable fee and 

other reasonable pro rata costs as are 

appropriate from the sum which benefits the 

third party insurance carrier or health care 

provider. 

Code § 65.2-714(B) (emphasis added). 

 Rule 18 of the Workers' Compensation Commission Rules 

addresses consideration of those attorney's fees authorized by Code 

§ 65.2-714. 

 An attorney's fee shall be awarded from sums 

recovered for the benefit of a third-party 

insurance carrier or a health care provider 

pursuant to § 65.2-714, Code of Virginia, only 

upon (1) evidence that such insurance carrier 

or health care provider was given reasonable 

notice that a motion for an award of such fee 

would be made and (2) evidence of the sum due 

such carrier or health care provider. 

 Employer does not dispute this well-established authority of 

the commission to control the "fees" and "charges" of both 

attorneys and health care providers or the sufficiency of notice 

attending counsel's claim in this instance. Rather, employer 

contends that the claim, related proceedings, and disposition 

necessitated a joinder of the health care providers as parties to 

this appeal. Employer reasons that the "health care providers are 

the ones from whom a substantial amount of money is sought" and, 

therefore, each must be "named . . . appellees" and "provided with 

a copy of the Notice of Appeal." 

 This argument ignores the procedural history of the claim. 

Despite notice, the record discloses that no health care provider 
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sought party status at any time during the proceedings before the 

commission. Providers, including Sentara, appear in the record 

before the commission only to concur in the claim, joining in 

proposed orders awarding fees to counsel from the funds payable to 

each. Sentara's challenge and assertion of a right to party status 

is first raised before this Court in a motion to dismiss the 

appeal. Employer likewise first argued on appeal that the health 

care providers were indispensable parties. 

 However, the question of party status to a health care 

provider in proceedings before the commission incidental to Code 

§ 65.2-714 claims is a matter for determination by the commission 

in the context of applicable statutes and rules of procedure. See

Dep't of Game and Inland Fisheries v. Joyce, 147 Va. 89, 93-94, 136 

S.E. 651, 653 (1927). Moreover, it is well established that this 

Court will not entertain issues first raised on appeal. Green v. 

Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364 

S.E.2d 4, 6 (1988) (citing Rule 5A:18). Review of the posture of 

employer, Sentara, and the remaining health care providers on the 

record before the commission illustrates the wisdom of this rule. 

We, therefore, decline to now entertain the procedural complaints 

of employer and Sentara and overrule the motions. 

 THE CLAIM

 In denying counsel's prayer for attorney's fees pursuant to 

Code § 65.2-714(B), the commission determined that the underlying 

claim was not "contested" as contemplated by the statute. It is 

well established that "[f]actual findings by the commission that 
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are supported by credible evidence are conclusive and binding upon 

this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16 

Va. App. 131, 134, 428 S.E.2d 32, 34 (1993) (citing Code 

§ 65.2-706). However, when the facts are undisputed, as here, 

their interpretation becomes a matter of law. Wells v. 

Commonwealth, Dep't of Transp., 15 Va. App. 561, 563, 425 S.E.2d 

536, 537 (1993). "We are required to construe the law as it is 

written" and "'[a]n erroneous construction by those charged with 

its administration cannot be permitted to override the clear 

mandates of a statute.'" Commonwealth v. May Bros., Inc., 11 Va. 

App. 115, 119, 396 S.E.2d 695, 697 (1990) (citation omitted). The 

"clear and unambiguous" words of a statute must be accorded "their 

plain meaning." Diggs v. Commonwealth, 6 Va. App. 300, 302, 369 

S.E.2d 199, 200 (1988). 

 Here, we find that the words, "contested claim" in Code 

§ 65.2-714 simply reflect the legislative requirement that the 

"dispute, contention, or litigation," Webster's Ninth New 

Collegiate Dictionary 283 (1989) (defining "contest"), combine with 

other specified circumstances attending a "claim . . . held . . . 

compensable," before attorney's fees "shall [be] award[ed]" 

incidental to "benefits for medical services" arising from the 

claim which "inure to . . . a third party." Code § 65.2-714(B). 

The record reflects considerable dispute and contention from the 

inception of the underlying claim and the related litigation is 

manifest. Employer immediately retained counsel, expressly 

asserted (only to later abandon) a "casual worker" defense, 
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mistakenly claimed insurance coverage, and obfuscated evidence of 

claimant's earnings. Clearly, confusion and delay attributable to 

employer needlessly complicated and protracted the proceedings, 

leaving claimant without benefits for months while counsel pursued 

clarification, discovery, and negotiation with employer. Finally, 

the wage issue remained unresolved and required determination by 

the commission. 

 Under such circumstances, we find that the claim was 

contested, as a matter of law, by a recalcitrant employer, 

necessitating the assistance of counsel to successfully obtain 

benefits both to claimant and the health care providers. 

Accordingly, we reverse the decision of the commission and remand 

for a determination of reasonable and appropriate attorney's fees 

to counsel pursuant to Code § 65.2-714(B). 

 Reversed and remanded.