By Annie Clark,2014-08-12 19:57
16 views 0

VIRGINIA: 8/25/1999



     Opinion by TARR


    v. Claim No. 181-98-99



Marc H. Bozin, Esquire

    401 Wythe Street

    Alexandria, Virginia 22314

    for the claimant

Benjamin H. Trichilo, Esquire

    P. O. Box 22

    Fairfax, Virginia 22030-0022

    for the defendant

     Review on the record before Commissioner Tarr, Commissioner Diamond and

    Commissioner Dudley at Richmond, Virginia.

     This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s February 26, 1999, Opinion declining to dismiss the claimant’s claim for his

    1failure to file timely responses to discovery. We affirm.

     The claimant filed a claim for benefits on June 22, 1998. On July 27, 1998, counsel for the employer propounded Interrogatories and a Request for Production of Documents. By letter dated August 20, 1998, the employer informed the Commission that responses had not been received. On August 26, 1998, The Commission wrote to the claimant warning him that if his responses were not filed within 10 days, the Commission would entertain a motion to dismiss his claim. When the

     VWC File No. 181-98-99

    claimant did not respond to this letter, the employer’s motion to dismiss was granted by Order dated October 6, 1998.

    The claimant then retained counsel who requested review of the dismissal order. The Commission vacated the dismissal order by Opinion dated November 18, 1998, to afford the claimant an opportunity to show cause why he did not respond to the Commission’s discovery order.

     Following a hearing, the Deputy Commissioner found that the claimant suffered from “physical and mental difficulties during the relevant period when the Interrogatories were

    propounded.” In view of the claimant’s accident resulting in fractured ribs, a respiratory ailment requiring emergency room care, a seizure requiring emergency treatment, and his chronic alcoholism, the Deputy Commissioner held that “a dismissal at this time would be too harsh a

    penalty.” We agree.

     The claimant was not represented by counsel when he filed his initial claim on June 22, 1998. The claim alleged an injury by accident on July 19, 1996, following a seizure which caused the claimant to fall from a ladder. He suffered closed head injuries from this accident.

     The claimant has been treated for epilepsy since the early 1980s. He takes Dilantin and is aware that he experiences seizures when he does not take his medication. He also stated that he experiences seizures even when he does take the medication. His seizures affect his memory. The claimant acknowledges that he is an alcoholic but does not feel it is necessary for him to undergo treatment for this problem. He declined to follow through with counseling recommended by his doctor. Since the work accident, the claimant testified that he suffers from disabling headaches and memory loss. He does not “think right.” He is depressed. He did not

     1 Counsel sought oral argument but in light of the issues presented and the record developed we do not deem oral argument to be necessary or beneficial. Barnes v. Wise Fashions, 16 Va. App. 108,

    428 S.E.2d 301 (1993).


     VWC File No. 181-98-99

    believe that alcohol affected his memory. He stated that he received the interrogatories but did not know if he understood the necessity to reply. He did not intentionally not respond to the discovery requests.

    On July 26, 1998, the claimant sought treatment at the emergency room complaining of pain in his ribs. He was unkempt and intoxicated with no memory of falling down. X-rays revealed fractured ribs. The claimant returned to the hospital on September 3, 1998. A chest x-rays revealed minimal infiltrates of fibrosis in the left lower lobe and a healing fracture of the left sixth and seventh ribs.

    On September 11, 1998, the claimant was seen by Brando Putamen, a nurse practitioner at Neurology Services, Inc. for a Dilantin refill and a seizure evaluation. Putamen noted that the claimant was not always compliant about taking his medication. Two weeks earlier he was on a ladder cleaning out a gutter and fell on the grass. He complained of headaches.

    The claimant maintains that he was suffering from pneumonia in early September 1998. On October 12, 1998, he sought treatment at the emergency room for a brief seizure.

    Anne Richards, the claimant’s mother, testified that since the 1996 accident, the claimant forgets events and people and is frequently depressed and frustrated. She stated that she did not know about his filing a workers’ compensation claim. He opens and reads his own mail. His alcoholism has been worse since the accident. She observed seizures at home in late August and early September 1998.

    According to Dr. Andrew E. Wise, who treated the claimant since 1992, the claimant’s use of alcohol makes the claimant more likely to forget to take his seizure medication. Dr. James E. Burgess, the neurosurgeon who treated the claimant for his 1996 head injury, opined that the claimant’s alcoholism might affect his judgment and result in his not taking his medication.


     VWC File No. 181-98-99

     From this evidence, we find that the Deputy Commissioner did not abuse her discretion in finding that the claimant has shown good cause why he was unable to provide discovery during the period from July through October 1998, and refusing to dismiss the claim. The claimant’s work related head injury in 1996, as well as his seizures, pneumonia, broken ribs, depression, and alcoholism, all contributed to affect his memory and functional capacity during the discovery period.

    The Opinion below is AFFIRMED.


     This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty


cc: Daniel S. Richards

     6712 Benson Drive

     Alexandria, Virginia 22306

     Joe Shifflett, Inc.

     6414 Richmond Highway

     Alexandria, Virginia 22306

     Union Insurance Company

     Chesapeake Insurance

     P. O. Box 61038

     Richmond, Virginia 23261


Report this document

For any questions or suggestions please email