Jose Luis Arvizu v Archie D Gold, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
JOSE LUIS ARVIZU
OPINION BY
v. 	Record No. 2651-01-2 	JUDGE JAMES W. BENTON, JR.
AUGUST 13, 2002
ARCHIE D. GOLD AND
SOUTHERN INSURANCE COMPANY
OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Brian J. Cusce for appellant.
Linda M. Gillen (Blair Law Offices, on
brief), for appellees.
The sole issue presented by this appeal is whether the
Workers' Compensation Commission exceeded its authority in
ordering an employee to execute a release authorizing his
employer's attorney, and anyone authorized by his employer's
attorney, to obtain from the Social Security Administration
information concerning the employee. 	We reverse the
commission's order.
I.
Jose Luis Arvizu sustained an injury by accident while
employed by Archie D. Gold as a drywall worker. 	The commission
approved a memorandum of agreement and entered an award granting
Arvizu temporary total disability benefits beginning October 6,
2000 and continuing medical benefits. 	The record indicates that

on April 17, 2001, Arvizu notified the commission and his
employer that his physician had released him to return to work
on restricted duties, and Arvizu sent them several medical
related reimbursement claims. 	The employer, however, filed an
application for hearing under Rule 1.4, alleging that Arvizu had
refused medical treatment. 	In response to the employer's
application for hearing, Arvizu filed a motion objecting to
suspension of his benefits and "request[ing] . . . reinstatement
of benefits."
During this time, the employer served upon Arvizu requests
for admissions and requests for production of documents.
Responding to the requests for admissions, Arvizu denied he was
a citizen of the United States and replied that he did not have
"sufficient knowledge or factual basis to determine whether [he]
was legally eligible for employment on September 28, 2000," the
date of his injury. 	In response to a request to admit or deny
that a specific social security number was valid and assigned to
him by the Social Security Administration, Arvizu replied that
he did "not have sufficient knowledge or factual basis to
determine the validity of the social security number" and that,
when he "started working for Archie Gold, . . . [he] believed
the social security card had been assigned to him." 	Responding
to the employer's request to produce his social security card,
alien registration card, and employment authorization card,
Arvizu replied that he could not find them.
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The employer filed with the commission a motion to compel
responsive answers and a second request for the production of
documents. 	The employer's second request for production of
documents asked Arvizu to "[p]roduce a statement from the Social
Security Administration detailing your work status in the United
States on September 28, 2000." 	Accompanying this request was an
"Authorization for Release of Social Security Information,"
which states as follows:
I, Jose Luis Arvizu, SS#[number deleted],
hereby request and authorize the Social
Security Administration, if requested by
Linda M. Gillen, Esquire, to furnish her or
anyone designated in writing by her, all
records and documentation and any other
information that she may request pertaining
to my employment status in the United
States. 	Linda M. Gillen shall retain the
original signed copy of this Release in her
records. 	A true and correct copy shall be
considered sufficient authorization of the
release of all records or information.
The deputy commissioner denied the employer's motion to
compel further responses to the initial requests for admissions
but ordered Arvizu "to respond to Employer's Second Request for
Production of Documents and to execute the Release of Social
Security Information within the time proscribed." 	Arvizu
responded to the second request for production of documents by
delivering to the commission and employer's attorney a copy of a
letter his attorney sent to the Social Security Administration.
In pertinent part, that letter is as follows:
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Please be advised I represent Mr. Arvizu
in his claim for workers' compensation
benefits before the Virginia Workers'
Compensation Commission. 	Mr. Arvizu is
requesting a detail or letter regarding his
work status on September 28, 2000.
I have enclosed a Designation of
Representation form and a Release of
Information form for your file in order to
obtain the requested information. 	Thank you
for your cooperation and assistance in this
matter.
Arvizu filed a request for review, however, of the deputy
commissioner's order that he execute a release authorizing
employer's attorney to obtain information from the Social
Security Administration.
On its review, the commission found that the employer was
clearly concerned with Arvizu's eligibility to work in the
United States and ruled that Code § 65.2-709 authorizes the
commission to "require [Arvizu] to obtain and to present
evidence of filing for certain social security benefits when
that information is relevant to a claim for workers'
compensation benefits." 	Holding that "a determination of
[Arvizu's] status as a legal alien is a relevant issue," the
commission affirmed the deputy commissioner's decision to
require Arvizu to sign the release.
II.
Arvizu contends the commission's order, requiring him to
execute the release, exceeded the commission's statutory
authority and violated his right to retain counsel of his
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choice. 	The employer responds that the commission "clearly has
the authority" to order Arvizu to provide evidence of his legal
employment status or, alternatively, to sign a release
authorizing the employer to obtain it.
Citing Code § 65.2-502, the employer asserts that it
"obviously had an interest in determining [Arvizu's] lawful
employment status." 	That statute provides as follows:
[T]he employer shall not be required to pay,
or cause to be paid, compensation under this
section to any injured employee not eligible
for lawful employment; nor shall any such
injured employee not eligible for lawful
employment who is partially incapacitated be
entitled during partial incapacity to
receive temporary total benefits under
§ 65.2-500.
Code § 65.2-502. 	Notwithstanding the employer's interest in
learning Arvizu's employment status, the issue presented by this
appeal is whether the commission had the authority to order the
release as a method of obtaining the information.
The statute upon which the commission relied for authority
to order Arvizu to execute the release states in pertinent part
as follows:
The Commission may require the claimant to
present evidence of filing for Federal
Old-Age Survivors and Disability Insurance
benefits in order to establish eligibility
under this section and also may require the
claimant to furnish the employer with the
decision on his claim for such federal
benefits.
Code § 65.2-709(B) (emphasis added).
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Nothing within this statutory provision purports to give
the commission the authority to order Arvizu to sign a release
authorizing the employer to obtain information from the Social
Security Administration. 	The plain language of the statute only
authorizes the commission to require an employee to present
evidence to the commission or the employer. 	The employer points
to no other statute or rule which would authorize the commission
to order the release the employer requested.
III.
Because this matter arose in the context of a discovery
dispute, we next look to the scope of the commission's discovery
rules. 	Discovery proceedings in the commission are authorized
by the following statute:
A. 	Any party to a proceeding under this
title may serve interrogatories or cause the
depositions of witnesses residing within or
without the Commonwealth to be taken, the
costs to be taxed as other costs by the
Commission. 	All interrogatories,
depositions, or any other discovery 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
the Administrative Process Act (§ 9-6.14:1
et seq.).
Code § 65.2-703.
Pursuant to this statutory authorization, the commission
has adopted rules of discovery permitting "written deposition,
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interrogatories to parties, production of documents or things,
requests for admission, inspection of premises or other means of
inquiry approved by the Commission." 	Rule 1.8(A), Rules of the
Virginia Workers' Compensation Commission. 	The commission's
rules also contain the following provisions for failure to make
discovery:
A party, upon reasonable notice to other
parties and all persons affected thereby,
may request an order compelling discovery as
follows:
A timely request in writing in the form
of a motion to compel discovery may be made
to the Commission or to such regional office
of the Commission where an application is
assigned to be heard.
Failure of a deponent to appear or to
testify; failure of a party on whom
interrogatories have been served to answer;
failure of a party or other person to
respond to a subpoena for production of
documents or other materials; or failure to
respond to a request for admission shall be
the basis for an order addressing a request
to compel compliance or for sanctions, or
both.
Rule 1.8(K), Rules of the Virginia Workers' Compensation
Commission.
These rules do not expressly authorize the ordering of a
release such as occurred in this case. 	Although the commission
has been directed to adopt rules "conforming as nearly as
practicable to Part Four of the Rules of the Virginia Supreme
Court," Code § 65.2-703, we perceive nothing in the Supreme
Court's Rules or its decisions interpreting those Rules that
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purports to authorize this type of order as a permissible
discovery method or sanction for failure to provide discovery.
"We [have held] that the commission has the same authority
as a court to punish for noncompliance with its discovery
orders." 	Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278, 430
S.E.2d 712, 717 (1993). 	We have also held that "[i]n addition
to its statutorily granted powers, the commission . . . has
incidental powers which are reasonably implied as a necessary
incident to its expressly granted powers for accomplishing the
purposes of the Workers' Compensation Act." 	Bader v. Norfolk
Redev. & Hous. Auth., 10 Va. App. 697, 702, 396 S.E.2d 141, 144
(1990). 	Nonetheless, the employer points to no decision of the
Supreme Court or this Court and cites no statute that could be
interpreted to authorize the commission to order an employee to
execute a release authorizing the employer's attorney to obtain
from the Social Security Administration information concerning
that employee.
It appears the commission addressed a similar discovery
matter in Singleton v. Fairfax Hospital Association, 68 Va. WC
226 (1989). 	There, "[t]he claimant . . . , by counsel, declined
to sign a records release form offered by the employer and
intended to obtain, for the benefit of the employer, information
from the Social Security Administration concerning claimant's
medical records." 	Id. at 226. 	Although the commission ruled
that the records were not "relevant" to the issue of disability
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before it, the commission also ruled that the claimant "is not
required by statute or rule or by Code § 65.1-99.1 [now Code
§ 65.2-709(B)] to sign an authorization which will permit the
employer to obtain her federally-protected Social Security
records." 	Id. at 228. 	Recognizing that social security records
could be at issue if the claimant sought cost of living
supplements, the commission noted, however, the absence of "a
discovery application by the employer directed to the claimant
for the purpose of obtaining the . . . information [by other
means]." 	Id.
In short, the record indicates that in response to the
employer's second request for production of documents, Arvizu
responded that he had filed a request with the Social Security
Administration for his records. 	Significantly, before ordering
Arvizu to sign the release, the commission did not order Arvizu
to produce for inspection documents from the Social Security
Administration he had the power to obtain. 	See id. 	The
employer, therefore, has not provided any clear indication the
commission's decisions or its discovery rules would permit the
type of order entered in this case requiring Arvizu to execute a
release permitting the employer to obtain his social security
records.
IV.
Citing Powell v. Alabama, 287 U.S. 45 (1932); Texas
Catastrophe Property Ins. Assoc. v. Morales, 975 F.2d 1178,
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1180-81 (5th Cir. 1992); Mitchell v. Johnson, 701 F.2d 337, 351
(5th Cir. 1983); Potashnick v. Port City Constr. Co., 609 F.2d
1101, 1117 (5th Cir. 1980), Arvizu also contends that the order
violates his right to counsel of his choice. 	We disagree. 	None
of those cases remotely suggest that a release signed by one
party to a dispute, which directs a third entity to deliver
documents concerning that party to the other contesting party,
is an infringement of the right to counsel.
V.
Because we find no authority permitting the commission to
order Arvizu to sign a release authorizing the employer to
obtain Arvizu's records from the Social Security Administration,
we reverse the commission's decision. 	In so ruling, we
specifically note that at oral argument references were made to
the status of the proceedings and the recourse available to the
parties. 	Although the appendix filed by the parties includes
letters sent by the employer's attorney in May and June of 2001,
those letters are not in the record. 	The record of this case,
which was certified to this Court by the commission on October
25, 2001, does not contain a physician's statement that Arvizu
was able to return to his pre-injury employment, an agreement
terminating Arvizu's wage loss award, or a request by the
employer to withdraw its application for hearing. 	Furthermore,
the record does not indicate the commission ever entered orders
acting upon Arvizu's motion to reinstate his benefits that were
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suspended by operation of Rule 1.4, approving the termination of
the wage loss award, or removing from its hearing docket the
employer's application for a hearing. 	The absence of these
documents in the record cannot be repaired by the statements
made at oral argument concerning the status of the proceedings
below. 	Indeed, the record suggests those matters are still
pending. 	Moreover, the commission has clearly ruled in Craft v.
Commercial Courier Express, Inc., 78 Va. WC 270, 272-73 (1999),
that an open award, which can even be an "ongoing award for
medical benefits[,] constitutes an 'issue' or 'proceeding'
before the commission as those terms are used in Commission Rule
1:8 and in . . . Code § 65.2-703."
For these reasons, we reverse the commission's order, and
we remand this matter to the commission for reconsideration of
the employer's motion to compel discovery, to determine whether
its discovery rules were violated, and for any other action
appropriate to the proceedings pending before it.
Reversed.
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