FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Jeremy Flachs (Justin Lerche; Law Offices of Jeremy Flachs, on brief), for appellant.
Catherine A. Karczmarczyk (Ramesh Murthy; Penn, Stuart & Eskridge, on brief), for appellees.
Amicus Curiae: Virginia Trial Lawyers Association (Craig B. Davis; Stephen T. Harper; Reinhardt Harper Davis, PLC, on brief), for appellant.
Present: Judges Humphreys, McCullough[*]
and Senior Judge Haley.
[66 Va.App. 164] ROBERT J. HUMPHREYS,
Naa Williams (" Williams" ) appeals the decision of the Virginia Workers' Compensation Commission (the " Commission" ) denying her $1,437.31, the pro rata reduction of her employer's (" Capital Hospice" ) workers' compensation insurance carrier's (" Companion" ) lien recovered from the negligent third party, Victoria Fire and Casualty/Nationwide (" Victoria" ). [66 Va.App. 165] Specifically, Williams claims the Commission erred in interpreting Code § § 65.2-309, 65.2-311, and 65.2-313.
Williams was involved in an automobile accident on October 13, 2011 and sustained injuries to her neck and back. On October 27, 2011, Williams retained counsel. That same day, counsel for Williams sent a letter to Victoria, the insurance carrier for the negligent third party involved in the accident,
informing Victoria of its representation of Williams. Victoria acknowledged receipt of the letter that same day. Williams's counsel did not send a letter of representation to her employer's workers' compensation carrier, Companion. Williams, without the assistance of counsel, filed a claim for workers' compensation benefits on November 11, 2011. On August 10, 2012, counsel for Williams filed a second claim for benefits.
On March 23, 2012, Companion, the workers' compensation insurance carrier for Capital Hospice (Williams's employer), initiated arbitration proceedings with Victoria, the insurance carrier for the third party, seeking recovery of its workers' compensation lien of $4,060.19. The lien represented the payments Companion had made to or on behalf of Williams pursuant to the Virginia Workers' Compensation Act (" the Act" ). Victoria made a request that the arbitration proceedings be deferred to " allow more time for a settlement of the pending personal injury" action, which was denied. On August 13, 2012, the arbitrator issued a decision ordering Victoria to pay $4,060.19, the full lien amount, to Companion.
On March 6, 2014, counsel for Williams filed a letter claim with the Commission alleging she was entitled to an additional $1,353.40 to be paid by Companion, representing the pro rata share of attorney's fees and expenses from the $4,060.19 recovered by Companion from Victoria through arbitration. On April 9, 2014, Williams settled her personal injury claim against the negligent third party/Victoria for $10,000 prior to trial.
[66 Va.App. 166] Deputy Commissioner Tabb conducted an evidentiary hearing on July 7, 2014. In a written opinion, Deputy Commissioner Tabb found that Williams was entitled to a payment of $1,437.31 because " it is required that reasonable attorney's fees and expenses shall be apportioned pro rata between the [employer and employee], regardless of the attorney's degree of involvement in the companion case." He explained that the attorney's fees ($3,333) and costs ($210.20) for Williams totaled $3,543.20, which was 35.4% of the $10,000 third-party recovery. Therefore, the deputy commissioner concluded that Williams's counsel " was entitled to the reduced compensation lien or $1,437.31 ($4,060.19 x .354), and the employer shall owe 35.4 percent of each future entitlement, if any."
Companion requested a review of the deputy commissioner's opinion by the Commission. On May 21, 2015, the Commission issued its opinion, which reversed the deputy commissioner. The Commission found that Companion was permitted under the Act to resolve its subrogation lien with the negligent third party without first obtaining approval of the Commission and claimant pursuant to Code § 65.2-309(A) and (C). Additionally, the Commission noted that the employer has a statutory right to recover its lien and explained, " [w]e can glean nothing from the statutory language which evidences the legislature's intention to grant the claimant a right superior to that of the employer's, to recover money owed [to] the employer." Further, the Commission held that Code § § 65.2-309, 65.2-311, and 65.2-313 did not require that Williams receive $1,437.31 from Companion's recovery of its workers' compensation lien. Finally, the Commission found no merit to Williams's argument that Companion's recovery of its lien prejudiced her ability to secure a favorable settlement in her tort action against the third party.
In her appeal, Williams asserts that the Commission erred in interpreting Code § § 65.2-309, 65.2-311, and 65.2-313. " An issue of statutory interpretation is a pure question of law which we review de novo." Ford Motor Co. v. Gordon, [66 Va.App. 167] 281 Va. 543, 549, 708 S.E.2d 846, 850 (2011). With regard to issues of statutory construction,
[a]lthough " the practical construction given to a statute by public officials charged with its enforcement is entitled to great weight by the courts and in doubtful cases will be regarded as decisive," Southern Spring Bed Co. v. State Corp. Comm'n, 205 Va. 272, 275, 136 S.E.2d 900, 902 (1964), " when an issue involves a pure question of statutory interpretation, that issue does not ...