The Workers' Compensation Commission (commission) did not err in determining that employer, seeking to recoup a credit accrued from payments to claimant in accordance with the federal Longshore and Harbor Workers' Compensation Act (LHWCA), wrongfully suspended compensation benefits subsequently awarded claimant pursuant to the Workers' Compensation Act (Act). The commission did not err in assessing a penalty on such suspended compensation.
On August 13, 1993 claimant sustained a work-related injury, which entitled her to benefits pursuant to both the LHWCA and the Act. Initially, she pursued and received a LHWCA disability award but, "to protect her right to all benefits . . . under the . . . Act," also lodged a related claim with the commission, then advising the commission, "[n]o hearing is requested at this time." After claimant had received LHWCA benefits totaling $68,942.78, employer terminated payments on August 30, 1998. Claimant then requested workers' compensation benefits beginning August 31, 1998, and continuing.
The parties subsequently agreed to a schedule of compensation to claimant for various periods of disability, including a lump sum of $21,831.22 for "a 50% permanent partial disability to the left leg" and "[t]emporary partial disability . . . of $104.87 per week from 1/19/99 to the present and continuing," and the commission so ordered. On May 8, 2000, claimant notified the commission that employer had unilaterally ceased payment of the $104.87 weekly benefit on July 4, 1999, and, pursuant to Code Sec. 65.2-254, sought assessment of a twenty percent penalty on "all payments in arrears more than two weeks."
Code Sec. 65.2-520 provides, in pertinent part, that [a]ny payments made by the employer to the injured employee during the period of his disability . . ., which by the terms of this title were not due and payable when made, may, subject to the approval of the Commission, be deducted from the amount to be paid as compensation provided that, in the case of disability, such deductions shall be made by reducing the amount of the weekly payment in an amount not to exceed one-fourth of the amount of the weekly payment for as long as is necessary for the employer to recover his voluntary payment.
Code Sec. 65.2-518 limits "total compensation under this title" to "500 weeks" or "the average weekly wage of the Commonwealth . . . for the applicable year [multiplied] by 500." Moore v. Int'l Terminals, Inc., 254 Va. 46, 486 S.E.2d 528 (1997)(Moore II). Moore II instructs that "[w]here, as here, a worker is covered by both the [LHWCA] and the state [Act], . . . the injured worker may proceed under either or both statutes" but "is entitled to only a single recovery for his injuries." Moore II, 254 Va. at 49, 486 S.E.2d at 529 (citations omitted). The Court in Moore II construed Code Sec. 65.2-520 to assure an employer a "dollar for dollar" credit for LHWCA compensation benefits paid an injured employee against like benefits due under the Act, thereby avoiding an impermissible "double recovery." Id. at 50, 486 S.E.2d at 530.
The benefit limitations prescribed by Code Sec. 65.2-518 are restricted to "total compensation payable under" the Act. Therefore, recoupment of credits resulting from voluntary payments by an employer to an injured employee of monies, "not due and payable [under the Act] when made," is a circumstance clearly not contemplated by Code Sec. 65.2-518 but, rather, specifically embraced by Code Sec. 65.2-520. Code Sec. 65.2-520 (emphasis added). Code Sec. 65.2-520 facilitates an employer's right to collect LHWCA credits by "deductions" from compensation due an employee under the Act but expressly restricts such offsets to one-fourth of the "weekly payment." Code Sec. 65.2-520 creates no alternative or exception to the collection mechanism to redress circumstances that may result in a diminished recovery by an employer. "If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun Co. Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 84, 425 S.E.2d 800, 802 (1993) (citations omitted).
Similarly, a proper reading of Moore II offers no support for employer's argument. Moore II simply affirms the well established principle disfavoring double recovery by an employee of benefits arising from the same industrial accident and construes Code Sec. 65.2-520 to allow a "dollar for dollar" recoupment by an employer of overpayment credits. Id. at 49-50, 486 S.E.2d at 530. Moore II neither disapproves the method of recovery specified by Code Sec. 65.2-520 nor suggests exceptions to preclude shortfalls to employer or windfalls to employee. To the contrary, the court defers to the "clear intent of the General Assembly" in construing Code Sec. 65.2-520, thereby countenancing the explicit statutory limitations upon recovery of overpayment credits.
The commission properly limited employer's right of recoupment to the method prescribed by Code Sec. 65.2-520 and correctly assessed a penalty on those benefit payments withheld contrary to statute. Newport News Shipbuilding and Dry Dock v. Holmes, Record No. 0899-01-1 (December 4, 2001). WP Version.Where a worker is covered by both the federal Longshore Act and a state workers' compensation statute, concurrent jurisdiction exists, and the injured worker may proceed under either or both statutes. The claimant, however, is entitled to only a single recovery for his injuries. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 131 (1962); accord American Foods v. Ford, 221 Va. 557, 561, 272 S.E.2d 187, 190 (1980): "[d]ouble recovery under concurrent jurisdiction will not be allowed." 221 Va. at 561, 272 S.E.2d at 190. An employer is entitled to a "dollar-for-dollar," as opposed to a "week-for-week," credit for benefits paid to an injured employee under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq. (the Longshore Act), which exceeded the employer's obligations under the Virginia Act. Melvin C. Moore, Jr. v. Virginia International Terminals, Inc., Record No. 961500 (Va. S.Ct. June 6, 1997).
In Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 470 S.E.2d 574 (1996), the Court of Appeals held: Subject to the approval of the commission, an employer is entitled to a credit for any "voluntary payment" it may have made to the employee. As defined by the statute, a payment is "voluntary" if it was not "due and payable" by "the terms of this title" when made. Thus, the disability payments employer paid claimant under the LHWCA were "voluntary" because when paid they were not "due and payable" under "the terms of" the Virginia Act. Therefore, the amounts paid under the LHWCA should have been deducted from employer's liability as determined by the commission. The statute makes no exception to its command, and its language directing that a credit be provided for "any" voluntary payments indicates an intent to provide a credit for all payments that fall within its classification of "voluntary. "Id. at 405, 470 S.E.2d at 578-79. The amounts paid by employer under the LHWCA should therefore be set off against "any future liability it may have to claimant for the injury received, "regardless of the classification of the disability. Id. at 406,470 S.E.2d at 579. Ceres Marine Terminals, Inc. and AETNA Casualty & Surety Co. v. Anita Artis, Record No. 1868-96-1 (February 18, 1997); Ceres Marine Terminals, Inc. v. Anthony E. Ward, Record No. 0074-97-1 (September 23, 1997).
Claimant received a permanent partial disability rating for his left leg, which entitled him to 144 weeks of compensation under the LHWCA and 87.5 weeks of compensation under the Virginia Workers' Compensation Act, a difference of 56.5 weeks. The employer paid the 144 weeks of permanent partial disability benefits under the LHWCA from May 3, 1995 through January 19, 1998. In the meantime, the commission affirmed the deputy commissioner's award of temporary total disability benefits under the Act beginning April 1, 1997. The award stated that the employer would receive credit for any payments it made pursuant to the LHWCA. The employer took its credit by reducing the weekly payment to zero for 56.5 weeks. Only at the conclusion of the 56.5 weeks, did the employer begin weekly payments to appellant. The Court of Appeals reversed the commission and found that the employer improperly applied its credit pursuant to Code Sec. 65.2-520, and required it to pay the twenty percent penalty provided for in Code Sec. 65.2-524 for payments not paid within two weeks of becoming due. The legislature, which establishes public policy for the Commonwealth, has clearly stated in Code Sec. 65.2-520 that in the case of disability, the recoupment of voluntary payment by the employer must be accomplished "by shortening the period during which compensation must be paid and not by reducing the amount of weekly payments." Code Sec. 65.2-520 does not distinguish between types of "voluntary payments." The statute states that any payment is voluntary which "by the terms of this title were not due and payable when made." "Voluntary payments" include any type of payment not required under the Act, whether the payment is an overpayment as a result of a mistake by the employer or a payment of benefits pursuant to another statute. Jerry Gilbert Dodson v. Newport News Shipbuilding, Record No. 0278-99-1 (August 10, 1999). WP Version.
Claimant worked as a rigger for the employer when he suffered a compensable injury to his back on January 23, 1993. Claimant's September 27, 1994 claim letter satisfied the two-year filing requirement. It advised the commission that he suffered an injury to his back while working for the employer on January 23, 1993 and stated a claim "for all benefits to which he is or may be entitled" under the Workers' Compensation Act. Claimant, however, did not request a hearing date until June 3, 1997. It does not matter that a hearing on the claim did not occur in the two-year period. So long as the claimant's notice advises the commission of necessary elements of his claim, "'it activates the right of the employee to compensation and . . . invokes the jurisdiction of the Industrial Commission.'" Trammel Crow Co. v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634 (1991) (attorney's letter to commission, which contains required information, satisfied filing requirement) (quoting Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 852 (1975)). The employee is also not required during the two-year period to prove his disability . Cf. Southwest Virginia Tire, Inc. v. Bryant, 31 Va. App. 655, 661, 525 S.E.2d 563, 566 (2000) (in change in condition application, claimant not required to produce evidence prior to expiration of two years). Instead, the employee's claim must allege a present and existing disability within two years of the accident, and he must prove that disability to receive benefits. Compare Johnson v. Smith, 16 Va. App. 167, 170, 428 S.E.2d 508, 510 (1993) (commission's denial of benefits reversed where claimant proved disability existed during statute of limitations period), and WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 229, 494 S.E.2d 147, 151 (1997) (benefits denied because disability did not commence until two years after accident). The fact that the employee did not seek a hearing within two years of the accident does not bar his claim. Nor does the fact that claimant received benefits under the Longshore Act trigger the time limits for filing a change in condition application under Sec. 65.2-708. In this case, claimant had not received benefits under the Virginia Workers' Compensation Act. Sec. 65.2-708 requires a change in condition request to be filed within two years of an award of benefits under the Act. See Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 21, 441 S.E.2d 349, 350-51 (1994) (absent entry of formal award there is nothing to review). An award under the LHWCA, however, is not an award under the Workers' Compensation Act. See Virginia Int'l Terminals v. Moore, 22 Va. App. 396, 402, 470 S.E.2d 574, 577 (1996), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997). Sec. 65.2-708 is inapplicable because there was no prior award under the Act to review. Finally, claimant, still disabled from pre-injury work, is also entitled to benefits although his plant shut down when a contract was lost. "[T]he employer is relieved of its duty to compensate the claimant only if it offers the claimant employment in his or her 'pre-injury capacity' and the claimant has been released to perform the work." Carr, 25 Va. App. at 312, 487 S.E.2d at 881 (disabled employee who accepted selective employment but suffered wage loss because there was no opportunity for overtime is still entitled to benefits). "The employer's financial condition . . . do[es] not affect the claimant's right to compensation due to an impaired capacity to perform his pre-injury duties." Consolidated Stores Corp. v. Graham, 25 Va. App. 133, 137, 486 S.E.2d 576, 578 (1997). After an economic layoff from selective employment, an employee remains entitled to benefits until he either fully recovers and is released to pre-injury work, or until the employer offers him other selective employment. See Washington Metropolitan Transit Authority v. Harrison, 228 Va. 598, 600, 324 S.E.2d 654, 655 (1985) (benefits denied because employee failed to prove he marketed his residual work capacity). The employer's reasons for the layoff should not diminish the employee's entitlement to benefits. The employee was injured on the job and his capacity to work reduced. The Workers' Compensation Act "is highly remedial and should be liberally construed to advance its purpose . . . [of compensating employees] for accidental injuries resulting from the hazards of the employment." See Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987) (citations omitted). Until the employee can perform at his pre-injury capacity, he is protected from the economic vicissitudes of the market place. The employee's layoff due to the employer's economic downturn does not preclude his entitlement to disability benefits. Metro Machine Corporation v. Isaac L. Lamb, Record No. 3044-99-2 (August 15, 2000). WP Version. See also Metro Machine Corporation v. Alvin Sowers, Record No. 0055-00-1 (August 15, 2000). WP Version.
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