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Appeal was premature.

Byline: Virginia Lawyers Weekly

The court lacked jurisdiction to determine if the commission erred in vacating a prior order awarding benefits because the commission's order was neither a final order nor an appealable interlocutory order.


Tracy Irby suffered an injury at work on Oct. 20, 2017. She timely filed a claim on Nov. 3, 2017, which triggered the commission's notice to Irby's employer, Lifepoint Health, and its insurer, Safety National Casualty Corporation, that they must respond to the claim within 20 days.

On Nov. 6, 2017, the claim administrator for the employer notified the commission that the claim was accepted as compensable and that an agreement form had been mailed to Irby. The agreement form sent to Irby was not signed on behalf of the employer. Nevertheless, after Irby signed the form, she sent it to the commission, and the commission then entered an award on Feb. 26, 2018, based on the agreement form. The award set out the compensation due to Irby, the attorney's fees and a notice that "[i]f any party wishes to dispute this Award Order, a Request for Review (appeal) must be filed within 30 days of the date of this Order."

The employer did not request a review of the award within 30 days. Moreover, based on a document submitted to the commission by Irby, the employer apparently signed the agreement on March 9, 2018.

On April 24, 2018, Irby requested a hearing on the matter of non-payment of attorney's fees and medical expenses related to the award. In response, the employer filed a motion on May 7, 2018 to vacate the award, arguing that because it had not signed the agreement at the time the award was entered, the award was entered in error by the commission.

The commission granted the motion to vacate the award and issued a May 14, 2018 order explaining its decision. Although the commission agreed that the employer's request for review was untimely, it concluded it retained jurisdiction to correct the mistake by the commission in entering an award not signed by both parties.

The commission acknowledged that the employer signed the agreement on March 9, 2018, but reasoned that the belated signature established that there was no agreement in February 2018, when the commission entered the award. The commission ordered that the case be removed from the review docket and "returned to the commission's Customer Assistance Department for referral to the appropriate evidentiary hearing docket."


Tracy Irby argues that the commission erred in vacating the award because the employer did not request a review of the award within the time period set by the commission's rules. However, the commission's order vacating Irby's award was neither a final order nor an appealable interlocutory order.

It was not a final order because it did not dispose of Irby's claim nor give or deny her the relief requested. To the contrary, it placed Irby's claim back on the hearing docket for resolution.

Likewise, the order was not an appealable interlocutory order. The order did not adjudicate the underlying cause. Although the order disposed of the employer's motion to vacate, the order did not address "the chief object of the suit," which was Irby's claim for compensation due to a compensable injury. Accordingly, the interlocutory order did not fall within this court's jurisdiction.


Irby v. Lifepoint Health, Record No. 0939-18-3, Jan. 15, 2019. CAV (Petty) from Workers' Compensation Commission. Cerid E. Lugar for Appellant, Jonnie L. Speight for Appellee. VLW No. 019-7-010, 5 pp. Unpublished.

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Title Annotation:Irby v. Lifepoint Health, Virginia Court of Appeals
Publication:Virginia Lawyers Weekly
Date:Jan 28, 2019
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