Corp. of the President, etc. v. Bonnie C. Gaskins ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued by Teleconference
CORPORATION OF THE PRESIDENT
NANE FREDERICKSBURG, VA and
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2936-96-4 JUDGE JOHANNA L. FITZPATRICK
JUNE 10, 1997
BONNIE C. GASKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lynne Jones Blain (Michelle P. Wiltshire;
Morris & Morris, on brief), for appellants.
Diane C.H. McNamara for appellee.
On appeal from a decision of the Workers' Compensation
Commission, Corporation of the President Nane Fredericksburg, VA
and Lumbermens Mutual Casualty Company (collectively referred to
as "employer") contend that the commission erred in allowing the
amendment of the claimant's average weekly wage as previously
awarded. For the following reasons, we affirm the commission's
decision.
BACKGROUND
On August 30, 1993, Bonnie C. Gaskins (claimant) suffered a
compensable closed head injury, cervical injury, and brain
damage. At the time of her injury, she was working as a
custodian for the Church of Jesus Christ of L.D.S. (Church).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Also during this time period, claimant was employed as a
custodian by 1st Choice Commercial Cleaning, Inc. (1st Choice).
She returned to work at Church on September 11, 1993 but did not
resume working for 1st Choice.
On January 24, 1994, claimant signed a memorandum of
agreement that awarded her temporary partial benefits based only
upon her wages from her employment with Church. Shortly
thereafter, on January 25, 1994, claimant sent a letter to
employer "indicating that because of her head injury she was
incapable of signing the forms or understanding the financial
information." Claimant contacted employer "[a]nd explained the
two jobs and [employer] said that the paperwork was incorrect.
And [claimant] followed up with a phone call and [employer] said
that she would discuss with [the case manager] the paperwork
being incorrect." No one from the employer responded to
claimant's inquiries.
At the hearing before the deputy commissioner, claimant
explained that when she signed the agreement she "didn't
understand what I was signing. And I had contacted the people at
Workmans' Comp and explained to them that I did not understand it
and I followed up with a letter." Claimant further testified
that she "knew as [she] got these benefits, each and every week,
that they did not include monies paid by 1st Choice Commercial
Cleaning . . ." and that as of January 1994, she "knew that the
paperwork was incorrect."
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The commission approved the memorandum on January 31, 1995.
On January 4, 1996, claimant filed an application for a hearing
to amend the memorandum to include her earnings from 1st Choice
in the calculation of her average weekly wage. It is undisputed
that her work for 1st Choice was similar employment and should
have been factored into the original payments. A hearing
regarding claimant's application was held on May 3, 1996.
Following the hearing, the deputy commissioner determined
that, despite her injury, claimant's request to amend was not
timely under the circumstances of the case. The deputy
commissioner relied on the facts that claimant knew the figure
was wrong as early as January 1994, that she did not sign the
memorandum for a year after receiving it, that she was
represented by counsel, and that employer placed no undue
pressure on her to sign the memorandum. The deputy commissioner
found no mutual mistake, fraud, or imposition, and denied
claimant's application to amend.
The full commission reversed and allowed the amendment. The
commission determined that:
[I]n this case there was a mutual mistake.
Because of her closed head injury, the
claimant has suffered serious cognitive
deficits and depression. She credibly
testified that she advised the carrier that
she was working two jobs, and yet the carrier
neglected to follow up on this information.
We do not find that the fact that the
claimant had a lawyer when she filed the
Memorandum in and of itself renders her
application untimely.
AMENDMENT OF CLAIMANT'S WEEKLY WAGE
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Employer contends that the commission erred in deciding that
the evidence supported a finding of mutual mistake regarding
claimant's average weekly wage and in allowing amendment of the
award. Additionally, employer argues in the alternative that
this is not a case where the doctrine of imposition should apply,
because employer did not "run afoul" of any statutory
requirements and it continued to pay claimant benefits in
accordance with the memoranda of agreement. We agree that the
doctrine of mutual mistake does not apply in the instant case. 1
However, we find that credible evidence in the record supports
application of the doctrine of imposition.
Findings of fact by the commission are conclusive and
binding on appeal if supported by credible evidence, even though
contrary evidence may exist in the record. Russell Loungewear v.
Gray, 2 Va. App. 90, 341 S.E.2d 824 (1986). When reviewing the
1
What constitutes a mutual mistake to qualify for rescission
of a contract is a mistake that is "common to both parties to a
transaction," consisting "either in the expression of their
agreement, or in some matter inducing or influencing the
agreement, or in some matter to which the agreement is to be
applied." Seaboard Ice Company v. Lee, 199 Va. 243, 252, 99
S.E.2d 721, 727 (1957). "In determining whether a mutual mistake
of fact existed at the time of the agreement, the inquiry is . .
. whether each party held the same mistaken belief with respect
to a material fact at the time the agreement was executed."
Collins v. Dept. of Alcoholic Bev. Con., 21 Va. App. 671, 681,
467 S.E.2d 279, 283 (1996), aff'd, 22 Va. App. 625, 472 S.E.2d
287 (1996).
In the instant case, there was no mutual mistake. Claimant
testified that she knew the memorandum was "incorrect" when she
signed it, and that she knew that the average weekly wage
reflected only those earnings from her job at Church.
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factual findings of the commission on appeal, we "review the
evidence in the light most favorable to the prevailing party."
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990).
"[T]he concept known as 'imposition' . . . empowers the
commission in appropriate cases 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 Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225,
228 (1992)).
The doctrine focuses on an employer's or
the commission's use of superior knowledge of
or experience with the Workers' Compensation
Act or use of economic leverage, which
results in an unjust deprivation to the
employee of benefits warranted under the Act
. . . . Thus, this Court has found that the
doctrine applies where, inter alia, the
record shows a series of acts by the employer
or the commission upon which a claimant
naturally and reasonably relies to his or her
detriment.
Butler v. City of Virginia Beach, 22 Va. App. 601, 605, 471
S.E.2d 830, 832 (1996) (citations omitted) (holding that doctrine
does not apply if the imposition resulted from claimant's own
act).
The commission's finding that claimant's request to amend
the average weekly wage was timely is a finding of fact that is
conclusive and binding on appeal because it is supported by
credible evidence. See Loungewear, 2 Va. App. at 92, 341 S.E.2d
5at 825. The evidence shows that as early as January 1994,
claimant notified employer that she had been working a second job
of similar employment. It is undisputed that employer failed to
respond to claimant's notification. Additionally, claimant
testified that during this time, her ability to function was
significantly impaired by her closed head injury. Medical
records confirm that claimant suffered from serious cognitive
deficits and depression that hindered her decision-making
abilities.
Moreover, this evidence also supports the application of the
doctrine of imposition. Although claimant notified employer of
her second job consisting of the same or similar employment,
employer failed to follow up on this information and to correct
the agreements to reflect these additional earnings. Employer
admits that these earnings would have been included if requested
initially. Employer's superior knowledge in the handling of
claims and its knowing failure to correct the error constitutes
an imposition on claimant. This doctrine is particularly
applicable in the instant case, because claimant suffered from an
injury that impaired her cognitive and decision-making abilities.
Accordingly, we hold that the commission correctly amended
the determination of claimant's wage. Although the commission
erred in applying the doctrine of mutual mistake, we apply the
doctrine of imposition and arrive at the same result. See
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,
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313 (1992) ("an appellate court may affirm the judgment of [the
commission] when it has reached the right result for the wrong
reason"). The decision of the commission is therefore affirmed.
Affirmed.
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