Dog Face Management, Inc., etc. v William J. Usher

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
DOG FACE MANAGEMENT, INC. T/A
TONY ELLIOTT BAND MEMORANDUM OPINION*
v. 	Record No. 0459-98-1 	PER CURIAM
JUNE 16, 1998
WILLIAM J. USHER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.
(C. Allen Riggins; Parker, Pollard & Brown,
on brief), for appellee.
Dog Face Management, Inc. t/a Tony Elliott Band ("employer")
contends that the Workers' Compensation Commission erred in
finding that William J. Usher ("claimant") was not bound by his
response to a Request for Admission propounded to him by
employer. 	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.
Employer propounded requests for admission to claimant.
Employer's request for admission number 14 asked claimant to
admit that he "is not disabled from performing the functions of a
guitar player." 	Claimant responded, "denied as to the period
6/10/95 through 6/30/95." 	Claimant later responded to employer's
interrogatories by stating that he intended to claim temporary
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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total disability benefits from June 10, 1995 through August 9,
1995. 	In denying employer's request to limit claimant's period
of disability by binding him to his response to request for
admission number 14, the commission found as follows:
We find that the Deputy Commissioner
acted properly in denying Dog Face's request
to limit the period of disability from the
date of the accident through June 30, 1995.
Although the claimant responded to the
request for admission that he was disabled
from June 10, 1995, through June 30, 1995, he
also responded to interrogatories in which he
said the benefits that he claimed were
"temporary total benefits from June 10, 1995
to August 9, 1995."
Thus, the claimant filed two documents,
one in which he limited his claim to June 30,
1995, and the other in which he limited his
claim to August 9[,] 1995. 	Dog Face has not
identified any way in which its defense of
the claim was prejudiced by the inconsistent
responses. 	We see no reason why we should
consider one document and not the other.
Rule 2.2 of the Rules of the Virginia Workers' Compensation
Commission provides that "[e]xcept for rules which the Commission
promulgates, it is not bound by statutory or common law rules of
pleading or evidence or technical rules of practice." 	In light
of Rule 2.2 and claimant's conflicting responses to employer's
discovery requests, we cannot say as a matter of law that the
commission erred in refusing to limit the period of disability.
For these reasons, we affirm the commission's decision.
Affirmed.