Award of Permanent Partial Impairment by Virginia Commission Is Voided On Appeal
April 10th, 2009
In Hitt Construction v. Pratt, 53 Va. App. 423, 672 S.E.2d 904 (Va. App. Feb. 17, 2009), the Court held that for the Virginia Workers Compensation Commission to exercise its review authority under the Act, when that authority is timely challenged, it must be composed of three statutorily authorized members. As a result, a decision that had concluded that claimant suffered permanent impairment was remanded for review by a properly constituted commission.
The majority of the commissions had appointed a deputy to serve as the third commissioner. However, the Court noted that no statute grants that authority.
The Court emphasized that the commission's decision in this case was "voidable", not void. The authority of the commission to exercise its subject matter jurisdiction was compromised by its composition -- a composition not authorized by statute. While a challenge to the authority of the commission was subject to being waived, that challenge was not here waived. Rather, it was specifically raised to the commission by the employer's motion to reconsider and vacate award. Therefore, the case was reversed and remanded to the commission.
John H. Carstens, Esq. of Jordan Coyne & Savits, LLP represented the employer.
The majority of the commissions had appointed a deputy to serve as the third commissioner. However, the Court noted that no statute grants that authority.
The Court emphasized that the commission's decision in this case was "voidable", not void. The authority of the commission to exercise its subject matter jurisdiction was compromised by its composition -- a composition not authorized by statute. While a challenge to the authority of the commission was subject to being waived, that challenge was not here waived. Rather, it was specifically raised to the commission by the employer's motion to reconsider and vacate award. Therefore, the case was reversed and remanded to the commission.
John H. Carstens, Esq. of Jordan Coyne & Savits, LLP represented the employer.
