Charles R. Wingate v Assett Protect Team Inc et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Annunziata and Senior Judge Cole
CHARLES R. WINGATE
MEMORANDUM OPINION*
v. 	Record No. 2151-00-4 	PER CURIAM
DECEMBER 12, 2000
ASSETT PROTECTION TEAM, INC. AND
INSURANCE CO. OF THE STATE OF PENNSYLVANIA/
AMERICAN INTERNATIONAL ADJUSTMENT CO., INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Charles R. Wingate, pro se, on brief).
(Susan A. Evans; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The Workers' Compensation Commission dismissed Charles R.
Wingate's (claimant) February 2, 2000 claim for benefits,
without prejudice, because of his failure to comply with a
discovery order requiring that he submit to a discovery
deposition within fourteen days. 	This was the sole issue before
the commission when it rendered its decision. 	Although claimant
raises arguments related to the Americans with Disabilities Act
and violations of his civil rights, we address, as the issue on
appeal, the correctness of the commission's ruling. 	Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. 	Accordingly, we summarily
affirm the commission's decision. 	See Rule 5A:27.

On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	So
viewed, the record established that on October 5, 1999, this
Court rendered an opinion affirming the commission's decision
dismissing, without prejudice, claimant's previous claim filed
on June 1, 1998, due to his failure to submit to a discovery
deposition after being ordered to do so by the commission.
On February 2, 2000, claimant re-filed his claim with the
commission. 	On March 21, 2000, employer's counsel sent a letter
to claimant, who resides in Texas, requesting that he contact
her office to arrange for his discovery deposition to be taken
via telephone. 	On March 23, 2000, claimant contacted employer's
counsel and refused to submit to a discovery deposition.
In a letter dated April 17, 2000, employer's counsel
informed the commission that claimant had refused to arrange his
discovery deposition and requested that the commission compel
him to submit to the deposition or dismiss his claim due to his
repeated failure to submit to the deposition as required by Rule
1:8, Rules of the Virginia Workers' Compensation Commission, the
commission, and this Court.
On April 19, 2000, the deputy commissioner entered an order
requiring claimant to submit to a telephonic discovery
deposition within fourteen days. 	The order contained the
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following language: 	"Failure to do so will result in dismissal
of the claim with prejudice."
In a letter dated May 5, 2000, employer's counsel informed
the commission that claimant had not submitted to a telephonic
deposition pursuant to the commission's order. 	Employer
requested that the commission dismiss the claim with prejudice.
On May 15, 2000, the deputy commissioner entered an order
dismissing the February 2, 2000 claim with prejudice for failure
to submit to a telephonic deposition in a timely manner.
Claimant sent a letter to the commission via certified mail
on May 2, 2000 "in response to [employer's counsel's] motion for
dismissal due to failure to submit to a telephonic deposition."
In the letter, claimant asserted that he was pursuing light-duty
work out-of-state and would be "indisposed until May 12, 2000."
Thus, he stated that he would be unable to comply with the order
for a telephonic deposition. 	Claimant also asserted that
employer's counsel should not be able to ask him any questions
about his disability pursuant to the Americans with Disabilities
Act and he asserted that employer had violated his civil rights.
The commission treated this letter as a request for review of
the deputy commissioner's May 15, 2000 order.
On review, the commission ruled that claimant is required
to allow employer to depose him and found no basis upon which to
place restrictions on relevant questions to be asked during the
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discovery deposition. 	In so ruling, the commission found as
follows:
We find that claimant has chronically
failed to comply with Orders of the
Commission in regard to discovery matters.
We further find that dismissal with
prejudice is a harsh result even when a
claimant has been dilatory in regard to
discovery matters. 	Accordingly, we AMEND
the deputy commissioner's May 15, 2000,
Order to dismiss the claimant's current
claim without prejudice; however, we impose
the following condition: 	The Commission
will accept a new claim in this matter only
if the claimant submits documentation
endorsed by the defendants' counsel that he
has complied with the Commission's Order
that he submit to a telephonic deposition.
The Workers' Compensation Commission cannot
process or adjudicate claims brought
pursuant to the Americans with Disabilities
Act or claims alleging civil rights
violations.
We find that this case is controlled by the reasoning set
forth in our opinion in claimant's previous appeal to this Court
styled, Wingate v. Assett Protection Team, Inc., et al., No.
2569-98-4 (Va. Ct. App. Oct. 5, 1999). 	The present case deals
with the same issue addressed in our previous opinion. 	Based
upon the reasons set forth in that opinion and based upon this
record, we find that the commission did not abuse its discretion
in dismissing claimant's claim, without prejudice, for his
failure to submit to a discovery deposition.
For these reasons, we affirm the commission's decision.
Affirmed.
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