TEMPORARY TOTAL
Code Sec. 65.2-500 (A) provides the compensation formula in total disability cases: When the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such total incapacity, a weekly compensation equal to 66 2/3 percent of his average weekly wages, with a minimum not less than 25 percent and a maximum of not more than 100 percent of the average weekly wage of the Commonwealth as defined herein. "Benefits under [Code Secs. 65.2-500 and 65.2-502] for total and partial incapacity compensate the employee for loss of earnings resulting from the injury." Crystal Oil Co., Inc. v. Dotson, 12 Va. App. 1014, 1020-21, 408 S.E.2d 252, 255 (1991). "The extent of earning capacity must be ascertained from the evidence, and such is not limited to any special class of proof. All legal facts and circumstances surrounding the claim should properly be considered . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). Compensation in both total and partial disability cases "is ultimately dependent upon and determined on the loss of wages." Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 (1954).
On May 19, 1998, claimant's doctor discharged claimant and instructed him to return to his "normal activity," except for some minor protective measures for his left hand which he had injured in a compensable accident. The commission, as fact finder, could reasonably infer that claimant was no longer totally disabled as of May 19, 1998. David R. Birmingham, Jr. v. Century Concrete, Inc., Record No. 0219-99-4 (June 8, 1999). WP Version.
Following a compensable accident, claimant's doctor released her to return to work. Claimant went back to work, but had to stop because of severe back pain. Claimant returned to her doctor about a week later and when the doctor learned the circumstances, the doctor did not recommend claimant return to her job, but instead referred her for physical therapy and for treatment by another doctor. This is sufficient evidence from which a period of temporary total disability may be inferred. AT&T Corporation v. Maria A. Lewis-Thomas, Record No. 0171-99-4 (June 22,1999). WP Version.
The Workers' Compensation Commission (commission) did not err in finding that claimant proved he was totally disabled beginning August 13, 1998. Claimant's doctor stated in a letter to claimant's attorney his opinion that the claimant was totally disabled from the time of his accident. This opinion is substantiated by his note dated August 13, 1998, stating that the claimant was to be out of work for the "indefinite future." The commission was entitled to weigh any inconsistencies between that evidence and the doctor's deposition testimony. The commission did so and articulated legitimate reasons for concluding that the doctor's deposition statements assumed that the claimant would undergo the surgery that was being considered and that these statements did not sufficiently outweigh the other evidence to require a finding that the claimant failed to carry his burden. Faraway Farms, Inc. v. Dinges, Record No. 2163-99-3 (February 8, 2000). WP Version.
The Court of Appeals correctly upheld a decision of the Workers' Compensation Commission denying an employer's request for payment credit against each of a claimant's three underlying injuries involving incapacity to perform work rather than just a condition that had resolved itself.
Following a hearing in 1994, the deputy commissioner awarded Eggleston temporary total incapacity benefits stating that Eggleston's "physical limitations are the result of bilateral gamekeepers thumb, bilateral carpal tunnel syndrome and right shoulder problems." The amount of the weekly payment was based on Eggleston's wages at the time she suffered her gamekeepers' thumb injury. Du Pont did not appeal the decision of the deputy commissioner. In February 1999, Du Pont filed a change in condition application under all three of Eggleston's claim files, seeking various reductions in, and credits for, the incapacity payments it was making. As relevant to this appeal, Du Pont asserted that Eggleston's gamekeepers' thumb injury had resolved itself and that the incapacity award should be appropriately reduced. Du Pont also asserted that it was entitled to a weekly credit against each injury toward the 500-week maximum recovery period established by Code Sec. 65.2-518, rather than a credit limited to the gamekeepers' thumb injury, the crediting mechanism imposed by the Commission.
The General Assembly authorized crediting a single payment as more than one week for purposes of Code Sec. 65.2-518, in only one instance. That instance is where the claimant is receiving a benefit for both a permanent loss and a benefit for partial incapacity. Code Sec. 65.2-503(E)(2) authorizes an employer to make a single payment comprised of the amount due an employee
pursuant to an award of permanent loss (Code Sec. 65.2-503) and partial incapacity (Code Sec. 65.2-502) and provides that such single payment must be credited as two weeks compensation for purposes of the 500-week compensation limitation.
This section, of course, does not apply in this case because this case involves one, not two, awards and does not involve an award for a temporary partial and a contemporaneous award for permanent loss. However, a well-recognized rule of statutory construction, expressio unius est exclusio alterius, provides that the mention of a specific item in a statute implies that other omitted items were not intended to be included within the scope of the statute. Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000); Board of Supervisors v. Wilson, 250 Va. 482, 485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992). Thus, specifically allowing a simultaneous or double crediting for two awards under the circumstances contemplated by Code Sec. 65.2-503(E)(2) and not providing for such double crediting for the purpose of Code Sec. 65.2-518 under any other circumstances, leads us to the conclusion that the General Assembly did not authorize or intend to authorize a double credit in circumstances in which the General Assembly has not authorized either a combined payment for more than one award or a double credit for a single payment.
The workers' compensation statutes do not address the proper treatment of a single award that is based on a combination of injuries. However, workers' compensation case law developed by the Court of Appeals provides some guidance. The Grief Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 553, 471 S.E.2d 803, 807 (1996), involved two injuries which "together caused total disability." In that case, the Commission had determined that the claimant's temporary total disability was " 'due partially to her right hand condition and partially to the left. It cannot be determined which condition is predominately disabling.' " Id. at 550, 471 S.E.2d at 805-06. The right hand condition had predated the left hand condition and, based on that condition, the claimant was receiving temporary total disability benefits at the time the left hand condition arose. Id. The Court of Appeals concluded that because the condition of the left hand "contributes to" the total incapacity, that condition "may properly be considered the basis for a total incapacity award." Id. at 553, 471 S.E.2d at 807. The Court of Appeals went on to instruct that, pursuant to
Code Sec. 65.2-506, the total incapacity award should be paid for the left hand first and, when that compensation was exhausted or the condition resolved itself, the temporary total incapacity award the claimant had been receiving for the right hand should be resumed, "if justified." Id.
The rule of the Grief case is that where more than one injury contributes to the incapacitating condition, a component injury may be the basis for the temporary total incapacity award. When that injury resolves itself or the compensation limitation of Code Sec. 65.2-518 is reached, the claimant can continue to receive temporary total incapacity benefits based on the other component injury only if the evidence still supports a finding that the claimant is totally incapacitated based on the other component injury.
Nothing in this procedure allows the claimant to recover more than 500 weeks of compensation for any one injury nor is compensation for each component injury guaranteed. Following resolution of or compensation exhaustion for the initial injury, Eggleston carries the burden of showing that a component injury continues to support a finding of temporary total incapacity.
Accordingly, because the circumstances of this case do not come within the provisions of the Workers' Compensation Act that authorize the Commission to credit a single payment as more than one week compensation for purposes of Code Sec. 65.2-518 and because the crediting procedure followed by the Commission in this case did not result in a violation of Code Sec. 65.2-518, we
will affirm the judgment of the Court of Appeals. E.I. du Pont de Nemours and Co. v. Eggleston, Record No. 011739 (Va. Sup. Ct., June 7, 2002). WP Version.The Workers' Compensation Commission did not err in permitting the employer to terminate benefits without filing an application and refusing to impose a penalty for not paying the benefits. The worker sustained an injury on February 23, 1988 for which he received compensation until April 11, 1994. The employer ceased paying benefits at that time because it received a letter from the worker stating that he had begun working at a wage greater than his pre-injury wage. By letter dated June 13, 1994, the insurer requested the worker to provide the name of his current employer, the date he started working, and copies of his pay stubs. The worker did not respond.
The commission sent form letters annually noting an outstanding award and directing, "if payments have ceased, an executed Agreed Statement of Fact or an Employer's Application for Hearing must be filed to end the Award." The insurer did not respond to the commission's letters, but it wrote the worker's counsel on July 27, 1995 acknowledging the worker's return to work and requesting, "please contact me so that we may discuss terminating the outstanding award."
When a worker does not suffer a loss of wages, receipt of compensation benefits would unjustly enrich the worker and result in manifest injustice. It is "'[n]either logical, reasonable, [n]or within the spirit of the Act'" to award benefits when a worker is not entitled to them. Collins v. Dep't of Alcoholic Beverage Comm., 21 Va. App. 671, 680, 467 S.E.2d 279, 283 (quoting Harris v. Diamond Contr. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 (1946)), aff'd en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996). The commission has applied this principle in Goodman v. Tricorp, Inc., 01 WC UNP 1702161 (July 23, 2001) (worker barred from receiving windfall even though employer failed to properly terminate award), and in Kline v. Newport News Shipbuilding, 00 WC UNP 1706454 (May 9, 2000) (benefits denied when "the occurrence of some mistake or unfair conduct . . . would render strict application of the Act unjust"). Interpretations of the act by the commission are entitled to great weight. Peyton v. Williams, 206 Va. 595, 600, 145 S.E.2d 147, 151 (1965).
The worker returned to work April 11, 1994 and remained continuously employed at a wage greater than his pre-injury wage. He did not provide the insurer with the necessary details of his change in employment, identify his new employer, or provide salary information or residential address changes when the insurer requested the information. The worker did not dispute that he neglected to comply with the notice requirements of Code Sec. 65.2-712. He testified he did not think he needed to provide that information because he was not asking the insurer "to make up the difference." The worker sought to enforce the award six years after he last received a compensation payment when he received the commission's letter indicating that the employer had underpaid the award by more than $58,000.
While the employer's failure to file an application to terminate the award cannot be condoned, the full commission found, "[t]here is no evidence . . . that the employer has flaunted the Commission requirements that it file a memoranda when accepting the claim." The equitable power of the commission, as exemplified in the doctrine of imposition, includes the power to "'render decisions based on justice shown by the total circumstances even though no fraud, mistake or concealment has been shown.'" Odom v. Red Lobster #235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon Prods. Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). The purpose of the Act "'is to compensate injured workers for lost wages, not to enrich them unjustly.'" Collins, 21 Va. App. at 678, 467 S.E.2d at 282 (quoting Harris, 184 Va. at 717, 36 S.E.2d at 576). Because the worker was not entitled to benefits, no penalty was applicable. Danny Leonard Lam v. Kawneer Company, Inc., Record No. 3158-01-4 (July 39, 2002). WP Version.
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