Whitt & Del Bueno, Attorneys at Law

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Certifiable

By Mike Del Bueno

You may recall a news blurb our firm sent out some months ago about the issue of the Commission’s certification of previously entered awards for potential use by injured employees to enforce their award in circuit court when employers and carriers fail to pay compensation benefits after properly filing with the Commission an employer’s application for hearing to suspend or terminate the outstanding award. This enewsletter provides an update about a case our firm had involving this issue.

In the case of Terry v. Blue Ridge Services, the Commission addressed whether or not the employer and carrier are entitled to notice, and whether due process requires the same, when an injured employee requests that the Commission certify a previously entered award in light of a properly filed employer application for hearing that suspends compensation benefits pending a hearing on the merits. The notice issue is important because the injured employee, after obtaining from the Commission certification of the award, aims to use the certificate as prima facie evidence in circuit court that the employer and carrier are in noncompliance with the previously entered award.

The majority opinion, written by Commissioner Williams, concluded that the employer and carrier are not entitled to notice, and there is no due process issue, when the award is certified. Importantly, the reason why is because the certificate (at least the one issued in Terry) specifically does not make a finding of noncompliance with the previously entered award – it contains no language or information on the issue of alleged noncompliance. According to the Commission, the certificate simply certifies that the attached award is a true and accurate copy of the same. Commissioner Williams indicated that the Commission has the inherent authority to issue certified copies of awards for various administrative reasons, and that the certification of the award is nothing more than authenticating the award, and just showing that the document is genuine and that it is what the proponent claims it is.

Again, Commissioner Williams made sure to emphasize that the certification of the award, in and of itself, does not give rise to any inference that a finding of noncompliance with the award has been made. Commissioner Williams then made reference to the recent case of Blankenship v. Philip Morris, USA, which was a companion case to Terry.

In Blankenship, the Commission, in a split decision, held that the employer and carrier who filed an employer’s application for hearing, properly suspended compensation benefits in accordance with existing law, Commission rules and procedures, and that said suspension did not violate the injured employee’s due process. The employer and carrier in Terry did just what the employer and carrier did in Blankenship insofar as properly filing an employer’s application for hearing and suspending compensation benefits pending the final adjudication of the employer’s application for hearing.

Commissioner Diamond wrote a “concurring” opinion in Terry, although it seemed to be more of a rehashing of her dissenting opinion written in Blankenship. Commissioner Diamond’s “concurrence” in Terry opined that the issuance of the certificate does not merely authenticate the previously entered award, but specifically makes a finding of noncompliance with it, and her dissent in Blankenship concluded that the suspension of an injured employee’s compensation benefits, by way of a properly filed employer’s application for hearing, is not in accordance with existing law, Commission rules and procedures, and that said suspension does, in fact, violate the injured employee’s due process.

The injured employee did not appeal the Commission’s opinion in Terry to the Court of Appeals. Therein, that opinion is now final. However, the injured employee in Blankenship did appeal the Commission’s opinion to the Court of Appeals. How Blankenship will turn out remains to be seen.

We believe that the meaning from the Commission’s opinion in Terry is that the certification of a previously entered award can only be used by an injured employee for authentication purposes, and nothing more. The certificate cannot be used, on its face, as evidence of noncompliance with the previously entered award, especially when the certificate is silent on any issue of noncompliance, as was the case in Terry.