Genesis Health Ventures,et al v Patricia P. Pugh

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia
GENESIS HEALTH VENTURES, INC. AND
LIBERTY MUTUAL INSURANCE GROUP
OPINION BY
v. 	Record No. 0481-03-2 	JUDGE JAMES W. BENTON, JR.
JANUARY 20, 2004
PATRICIA P. PUGH
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jennifer G. Tatum (Robert A. Rapaport; Clarke, Dolph, Rapaport,
Hardy & Hull, P.L.C., on brief), for appellants.
No brief or argument for appellee.
Genesis Health Ventures, Inc. filed an application for a hearing that the Workers’
Compensation Commission rejected because it did not comply with the commission’s Rule
1.4(E). Genesis contends that the commission’s decision unjustly enriched Patricia Pugh and,
thus, was contrary to Lam v. Kawneer Company, Inc., 38 Va. App. 515, 566 S.E.2d 874 (2002).
We affirm the commission’s decision.
I.
The facts are not complicated. Pugh sustained an injury by accident on July 20, 2000
while employed by Genesis. Approving the parties’ memorandum of agreement, the commission
awarded Pugh temporary total disability benefits in September 2000. Nine months later, in June
2001, the commission notified Genesis’s insurer that the award was outstanding and that the
commission assumed payments were continuing. The commission’s letter also advised that if
payments had ceased, either a termination of award document or application for hearing “must

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be filed to end the award.” A year later, the commission sent an identical letter of notification to
Genesis’s insurer.
In August 2002, Genesis filed an application for hearing, which indicated Pugh had
returned to work on July 31, 2000. The application requested termination of the award and
indicated that Genesis had paid compensation under the award through July 30, 2000. The
commission’s claims specialist rejected the application because “it fail[ed] to conform to the
requirements of Rule 1.4” and “instruct[ed] the [insurance] carrier to immediately reinstate
compensation benefits . . . under the . . . outstanding award.” On review, the commission
affirmed the claims specialist’s action.
II.
The commission’s procedures for an application for hearing are specified in Rule 1.4. In
pertinent part, the rule provides that “[n]o change in condition application under [Code]
§ 65.2-708 . . . shall be accepted unless filed within two years from the date compensation was
last paid pursuant to an award.” Rule 1.4(E). This rule governs Genesis’s application for
hearing, which was grounded in a change in condition and sought to terminate “the
compensation previously awarded.” Code § 65.2-708.
As required by Rule 1.4(B), Genesis’s application, which was filed August 20, 2002,
informed the commission that “compensation was paid [to Pugh] through 07/30/2000 at the rate
of $355.20 per week.” The commission, therefore, properly concluded that the application was
not “filed within two years from the date compensation was last paid pursuant to [the] award”
and, likewise, properly rejected the application because it did not satisfy the requirement of Rule
1.4(E). Notwithstanding its clear violation of the commission’s rule, Genesis contends that our
Lam decision required the commission to disregard Genesis’s failure to comply with the rules.
We disagree with Genesis’s reading of Lam.

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Unlike Pugh, who returned to work for Genesis -- her pre-injury employer, Lam did not
return to work for his pre-injury employer. Highlighting the circumstance of Lam’s return to
work for another employer, we noted that when “the insurer requested [Lam] to provide the
name of his current employer, the date he started working, and copies of his pay stubs . . .
[, Lam] did not respond.” 38 Va. App. at 517, 566 S.E.2d at 875. Lam’s failure to respond to
the request was a significant factor in the commission’s decision for three reasons. First, the
employer’s “application for [a hearing to] terminat[e] . . . benefits must be based on
documentation ‘sufficient to support a finding of probable cause to believe [the] . . . grounds for
relief are meritorious.’” Id. at 519 n.3, 566 S.E.2d at 876 n.3. Because Lam’s employer lacked
specific information about where he was employed and his rate of pay, the employer had
insufficient documentation to support its application. Second, Lam “did not dispute that he
neglected to comply with the notice requirements of § 65.2-712.” Lam, 38 Va. App. at 519, 566
S.E.2d at 876. In pertinent part, this statute imposes upon an employee “a duty immediately to
disclose to the employer . . . [the employee’s] return to work” and authorizes the commission to
remedy a breach of that duty. Code § 65.2-712. Third, in Lam the employer sought information
from Lam that would have permitted it, had Lam cooperated, to timely file an agreement to
terminate the award. Thus, the commission found no evidence to suggest the employer had
“flaunted” the rules by its delay. 38 Va. App. at 519, 566 S.E.2d at 876.
None of these circumstances exists in this case. Genesis knew Pugh had returned to work
for Genesis and, thus, had available all information and documentation necessary to complete its
application for hearing. Moreover, for more than a year, Genesis failed to respond to a notice
from the commission advising it about the need to terminate the outstanding award. On the other
hand, the record contains no evidence that Pugh violated any duty required of her by the rules or
the Act. Indeed, when she returned to her pre-injury employment, Genesis had the notice that

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Code § 65.2-712 requires of an employee. See Washington Metro. Area Transit v. Rogers, 17
Va. App. 657, 661, 440 S.E.2d 142, 145 (1994) (affirming the commission’s finding “that the
claimant’s return to work for the pre-injury employer was actual notice which satisfied the
disclosure requirement of Code § 65.2-712”).
The commission found that the record in this case contains “no allegation of or evidence
of imposition.” Cf. McFadden v. The Carpet House, ___ Va. App. ___, ___ S.E.2d ___ (2004)
(discussing the commission’s application of the doctrine of imposition in Lam); Washington v.
United Parcel Service, 39 Va. App. 772, 780-81, 576 S.E.2d 791, 796 (2003) (noting that
application of the doctrine of imposition was appropriate where “no evidence shows that [the
employer] intentionally failed to file the appropriate paperwork requesting termination of the
award, . . . [and the evidence shows] that [the employer] had mailed [to the employee] the
‘termination of wage loss, the Agreed Statement of Fact’ forms, . . . but they ‘never got them
back’”). Credible evidence in the record supports the commission’s finding and the
commission’s ruling “that the holding in Lam is inapplicable here.”
For these reasons, we affirm the commission’s decision.
Affirmed.