Legal Summaries Contents Home Page Contents
AWARDS AND SETTLEMENTS
See Modification of Final Orders
1999 Maximum and Minimum Compensation Rates. Effective July 1, 1999, the maximum rate is 567.00 weekly and the minimum rate is $141.75. The cost of living increase is 1.6%. Benefit calculation software is available (DOS Version) from Doug Singlemann, Data Processing Dept., VWC, 1000 DMV Drive, Richmond, VA 23220-2036. On September 1, 1999, a WIN 95/NT 4.0 version will be available--send a blank formatted diskette and a return self-addressed envelope with $1.01 postage and specify DOS or WIN 95/NT Version.
Because employer failed to timely solicit and file agreements for an accepted claim that would have resulted in an enforceable award from the Commission, courts will presume an award was entered to avoid giving the carrier an advantage by virtue of such neglect. Accordingly, the burden is on the employer to present grounds to show that the presumed award should be terminated. National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987). "Failure to promptly file memorandum of agreements is violative of the statute and frustrates a primary purpose behind the . . . Act -- to expedite the entry of awards in cases where the parties agree as to the compensability of the employee's injury." National Linen Serv. v. McGuinn, 5 Va. App. 265, 269, 362 S.E.2d 187, 189 (1987) (en banc).
The commission's approval of a memorandum of agreement is binding, and "an award of compensation entered upon such agreement is as enforceable as an award entered in a contested proceeding." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116,121, 348 S.E.2d 416, 419 (1986); see also Code Sec. 65.2-701(A).
The commission held in 1988 that "payment of wages to the employee based upon sick or annual leave may be credited to the employer under the provisions of Sec. 65.1-72 [now Code Sec. 65.2-520] when leave is reinstated." Dyson v. Commonwealth of Virginia Department of Transportation, 67 O.I.C. 237, 239 (1988). The construction afforded a statute by the public officials charged with its administration and enforcement is entitled to be given great weight by a court. The legislature is presumed to be cognizant of such construction. When it has long continued without change, the legislature is presumed to have acquiesced therein. Watford v. Colonial Williamsburg Found., 13 Va. App. 501, 505, 413 S.E.2d 69, 71-72 (1992).
Contrary to claimant’s assertions, the plain language of Code Sec. 65.2-520 does not require that an employer seek approval from the commission before taking a credit for voluntary payments made to a claimant. Moreover, as the commission correctly found, claimant would have been unjustly enriched with a double recovery if employer was denied its right to take the credit. Under the circumstances of this case, "'[i]mposition' . . . empower[ed] the commission . . . to render [a decision] based on justice shown by the total circumstances even though no fraud, mistake or concealment [was] shown." Avon Prods., Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992).
While it is clear that an overpayment was made, the mistake was unilateral on the part of the employer. The commission found that by commingling claimant's workers' compensation benefits and his total disability payments, the employer made the mistake in such a manner that claimant could not have recognized the error. The commission recognized that workers' compensation is designed to be compensatory and should not provide a windfall to the injured employee. Nonetheless, the commission found that allowing an offset to employer for its own mistake in this case would not be equitable. Claimant did not recognize the error while it was being made, and thus could not have planned for a decrease in his current payments to make up for the mistake. The commission found that allowing that offset would unnecessarily and improperly punish claimant. Code Sec. 65.2-520 permits recoupment by an employer of voluntary excess payments with the approval of the commission. Under the circumstances of this case, the court could not say that the commission abused its discretion in denying approval for recoupment or offset. Walter Everett Childress, Jr. v. Appalachian Power Company, Record No. 0881-98-3 (December 22, 1998).
The commission ruled that it has "the power and authority not only to make and enforce its awards, but to protect itself and its awards from fraud, imposition and mistake." Collins v. Dept. of Alcoholic Beverage Comm., 21 Va. App. 673, 679-80, 467 S.E.2d 279, 282 (1996).
Compromise settlement agreements are not binding until approved by the commission. See Code Sec. 65.2-701(A). The code provides that when a claimant and employer have reached a settlement agreement and filed a memorandum of the agreement with the commission for approval, the agreement is binding if the commission approves it. The agreement is not binding until the commission approves it, and either party may withdraw its offer to settle before approval. See Brickell v. Virginia State Police Dep't, No. 150-35-39 (Va. Workers' Comp. Comm'n, Dec. 19, 1994) (agreement is neither final nor enforceable until approved by the commission). The code contains no exception to the basic provision that an agreement becomes binding when the commission approves it. After claimant and the carrier agreed to a settlement, the claimant died of unrelated causes and the carrier withdrew its settlement offer before approval by the commission. Although the claimant died, the carrier had every right to withdraw its consent before approval made it a binding agreement. The plain wording of the statute permitted this action, and it contemplates no exception if the claimant should die in the interim between agreement and approval. Phil Damewood, Administrator of the Estate of Teddy D. Damewood v. Lanford Brothers Company, Record No. 0901-98-3 (January 26, 1999).
Sovran Financial Corp. v. Nanney, 12 Va. App. 1156, 408 S.E.2d 266 (1991), the commission had approved a settlement between the claimant and the carrier. Claimant's attorney petitioned for review of the approval within twenty days of the approval. The Court of Appeals held that the commission could review an approved agreement if a petition to review was filed within twenty days. The petition did not require a claim of fraud or mistake. See id. at1159, 408 S.E.2d at 268 (citing Harris v. Diamond Constr. Co.,184 Va. 711, 721, 36 S.E.2d 573, 578 (1946)).
The commission properly refused to hold employer liable to reimburse claimant for interest, i.e., finance charges, and other "out-of-pocket" costs associated with pursuing his claim. The Workers' Compensation Act does not provide any basis for an award of such costs. Charles Francis Carter v. Arlington Co. Fire Dpt., Record No. 2394-98-4 (April 20, 1999). WP Version.
The voluntary payment of compensation benefits to claimant for more than two years by the employer and its insurer did not constitute a de facto award. Employer voluntarily paid compensation benefits to claimant from November 29, 1995 through February 1998, but did not file a Memorandum of Agreement with the commission. On December 12, 1997, claimant filed a Claim for Benefits related to the November 29, 1995 incident. At the hearing, employer defended against the claim on the ground that claimant did not sustain a compensable injury by accident arising out of and in the course of her employment. Based upon this record, we find that the commission did not err in ruling that a de facto award did not exist and that "employer defended the compensability of this claim in good faith, and that the employer's voluntary payment of benefits [did] not prevent it from contesting the compensability of the underlying claim." Here, employer did nothing more than make voluntary payments to claimant. "An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), and City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App., Dec. 19, 1995) are distinguishable. In McGuinn, unlike this case, the employer stipulated to the compensability of the claim. McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190. Then, after accepting the claim as compensable, National Linen defended solely on the ground that claimant failed to market his residual work capacity. See id. at 268, 362 S.E.2d at 188. In this case, employer never accepted the claim as compensable, and in fact, challenged the compensability of the claim at the hearing. In Anderson, unlike this case, the employer accepted the claimant's condition as compensable before it stopped paying compensation benefits and challenged the causal relationship between the claimant's disability and his employment. Terri Lee Robinson v. Olan Mills, Record No. 0839-99-3 (September 7, 1999). WP Version.
De Facto Awards. Burden of Proof Shifts to Employer. Code Sec. 65.2-701(A) authorizes de facto awards and the commission did not err in recognizing their validity. National Linen Service v. McGuinn, 5 Va. App. 265, 326 S.E.2d 187 (1987) (en banc). De facto awards are premised on Code Sec. 65.2-701(A). The statute reads, in pertinent part: "If after injury . . . the employer and the injured employee . . . reach an agreement in regard to compensation or in compromise of a claim for compensation under this title, a memorandum of agreement in the form prescribed by the Commission shall be filed with the Commission for approval." In McGuinn, we held that where the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is "reasonable to infer that the parties ha[ve] reached an agreement as to the payment of compensation," and a de facto award will be recognized. McGuinn, 5 Va. App. at 269-70, 362 S.E.2d at 189. Assuming arguendo that Code Sec. 65.2-701(A) is vague, our interpretation of it in McGuinn sufficiently narrows and clarifies it with respect to de facto awards to pass constitutional challenge. See Wainwright v. Stone, 414 U.S. 21, 22-23 (1973) ("For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation 'we must take the statute as though it read precisely as the highest court of the State has interpreted it.'" (quoting Minnesota, ex rel. Pearson v. Probate Ct. of Ramsey County, 309 U.S. 270, 273 (1940))); Commonwealth v. Rivera, 18 Va. App. 103, 109, 442 S.E.2d 410, 413 (1994) ("[A]s a state court, we may construe our statutes to have a limited application if such a construction will tailor the statute to a constitutional fit."); see also Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991). Any vagueness in the statutory language is thus remedied. On April 20, 1997, claimant suffered an injury when she tripped on a buckled rug and fell on her left knee. The carrier voluntarily paid claimant temporary total disability benefits from April 20, 1997 through August 23, 1997. On November 6, 1997, claimant filed a claim for disability benefits, alleging compensable injury resulting from the April 20, 1997 accident. The employer and its carrier stipulated that claimant had suffered a compensable injury as a result of the accident and that she was totally disabled through June 10, 1997. The commission did not err in finding that voluntary payment of benefits to claimant for the sixteen-week period from April 20 through August 23, 1997 constituted a de facto award; as a consequence, the commission did not err in finding that employer bore the burden of proving that claimant's disability in the period following June 10, 1997 was not causally related to the accident. Ryan's Family Steak Houses, Inc., v. Gowan, Record No. 1435-99-3 (May 16, 2000). WP Version.
The commission did not err by 1) finding that a de facto award of benefits existed between March 20 and September 14, 1996; and 2) holding that claimant's January 13, 1998 supplemental change in condition application related back to her May 14, 1997 application. Pursuant to the decision in National Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), the commission had the authority to determine that a de facto award of benefits existed. Additionally, the County's procedural due process rights were not violated when the commission ruled that claimant's January 13 filing related back to her May 14 application.
Claimant sustained a compensable injury to her back and leg on January 7, 1993. On July 21, 1995, the commission entered an award approving the memorandum of agreement filed by the County providing for payment of temporary total benefits to Taylor through May 14, 1995. Taylor returned to work, but the County terminated her employment on March 19, 1996, after she was unable to perform her pre-injury duties. The County then voluntarily paid Taylor the equivalent of her temporary total disability award from March 20 through September 14, 1996. The County unilaterally ceased making payments to Taylor effective September 15, 1996. On May 14, 1997, claimant notified the commission of the County's voluntary payments to her. She also requested "ongoing temporary partial compensation benefits." Two days prior to her January 15, 1998 hearing before the deputy commissioner, Taylor notified the commission that, while she was seeking temporary partial disability benefits beginning September 26, 1996, she would be seeking temporary total disability benefits effective on or about October 4, 1996 and continuing to the present.
In McGuinn, the court addressed the consequences of an employer's failure to submit a memorandum of agreement to the commission where the employer voluntarily paid disability benefits to the claimant. After the claimant injured his ankle at work, the employer voluntarily paid him total disability benefits for a period of thirteen months. The employer did not, however, submit a memorandum of agreement to the commission. After the employer ceased paying benefits, the claimant filed an application for hearing seeking continued benefits. The employer defended on the ground that the claimant had failed to market his residual capacity. See McGuinn, 5 Va. App. at 267-68, 362 S.E.2d at 188. In allocating the burden of proof, the court noted that, had the employer filed the memorandum of agreement with the commission, the employer would have shouldered the burden of proving that the claimant was not entitled benefits. The court concluded that Code Sections 65.1-45 and 65.1-93 required the employer to submit a memorandum of agreement to the commission when it voluntarily decided to compensate the claimant for his injuries. See McGuinn, 5 Va. App. at 270, 362 S.E.2d at 189-90. The court further held that a de facto award of disability benefits arose when the employer paid the claimant benefits for thirteen months without filing the memorandum of agreement with the commission. See id. at 269-70, 362 S.E.2d at 189. The holding in McGuinn does not just relate to initial claims for benefits. Whether an agreement between the parties pertains to an initial award or a supplemental award following a change of condition, the employer is still obligated to file a memorandum of agreement with the commission. Code Sec. 65.2-701 refers to agreements reached "after injury" and does not expressly state or imply that the employer's obligation to file memoranda of agreement is limited to the initial award. See Commission Rule 4 ("All agreements as to payment of compensation shall be reduced to writing by the employer and promptly filed with the Commission." Code Sec. 65.2-708 does not require a claimant to file an application for change of condition if she can reach a satisfactory agreement with her employer regarding her entitlement to continuing disability benefits. Claimant was not required to file a change of condition application in March 1996 because the County voluntarily paid the equivalent of temporary total disability benefits to her. Having evidently conceded that claimant was entitled to these benefits, it was the County's responsibility to file a supplemental memorandum of agreement with the commission.
A finding of a de facto award does not depend upon a showing of fraud or concealment. See McGuinn, 5 Va. App. at 269-70, 362 S.E.2d at 189. As the court explained in Ryan's Family Steak Houses, Inc. v. Gowan, 32 Va. App. 459, 528 S.E.2d 720 (2000), where the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is "reasonable to infer that the parties ha[ve] reached an agreement as to the payment of compensation," and a de facto award will be recognized. Id. at 463, 528 S.E.2d at 722 (quoting McGuinn, 5 Va. App. at 269-70, 362 S.E.2d at 189). Therefore, that the presence of fraud or concealment by the employer is not a requisite precondition for determining that a de facto award should be recognized.
The commission did not err when it held the 1998 filing related back to 1997 for purposes of calculating the ninety-day period of Rule 1:2(B). two days prior to the hearing before the deputy commissioner, claimant formally declared she would be claiming entitlement to temporary total disability benefits during much of the period of time she had previously indicated she was entitled to partial disability benefits. The correspondence authored by counsel for the County in July and September 1997 reflects the County knew claimant would be attempting to prove entitlement to total disability benefits. In its January 14, 1998 letter to the commission, the County neither objected to the deputy considering the January 13 filing nor sought a continuance to review the medical records. The County merely requested that the record be held open for it to gather additional evidence pertaining to claimant's claimed total disability. Finally, the amendment did not seek any benefits outside of the time period identified in the 1997 application. Cf. WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227, 494 S.E.2d 147, 151 (1997). "Consolidation of claims at the hearing is permissible and in accordance with due process, provided the 'employer had notice of the time, location and subject matter of the proceeding which was reasonably calculated to afford the employer an opportunity to be heard.'" Crystal Oil Co., Inc. v. Dotson, 12 Va. App. 1014, 1017, 408 S.E.2d 252, 253 (1991) (quoting Sergio's Pizza v. Soncini, 1 Va. App. 370, 373, 339 S.E.2d 204, 205 (1986). Where the commission permits the consolidation of claims with little or no advance notice, the dispositive issue is whether the employer suffered prejudice. Id. at 1018, 408 S.E.2d at 253-54. In Crystal Oil, the employer challenged the commission's ruling that permitted an amendment to the claimant's change of condition application and permitted the amendment to relate back to the date of that application. On October 26, 1989, the claimant filed a change in condition application seeking partial disability benefits effective September 11, 1989. At the hearing before the deputy commissioner, the claimant sought to amend his application by claiming total disability benefits from July 25 through September 10, 1989. See id. at 1015-16, 408 S.E.2d at 252-53. the employer had defended the application with significant success. See id. at 1018-19, 408 S.E.2d at 254. The court also found that the employer had been given advance notice of some of the claimant's contentions from prior proceedings. See id. at 1019, 408 S.E.2d at 254. But see WLR Foods, 26 Va. App. at 227, 494 S.E.2d at 151 (holding that, where the change of condition application sought benefits effective February 1, 1996, and where the commission, sua sponte and without notice to the employer awarded benefits predating February 1, the employer was prejudiced). County of Henrico Public Utilities v. Susan Taylor, Record No. 1214-00-2 (January 23, 2001). WP Version.Legal Summaries Contents Home Page Contents