Fenco, Inc. v. David W. Bottenfield ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
FENCO, INC.
AND
PMA INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1604-96-3 DECEMBER 17, 1996
DAVID W. BOTTENFIELD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ruth Nathanson; Midkiff & Hiner, on brief),
for appellants.
(George L. Townsend; Chandler, Franklin &
O'Bryan, on brief), for appellee.
Fenco, Inc. ("employer") and PMA Insurance Company ("the
insurer") contend that the Workers' Compensation Commission
("commission") erred in denying their application requesting that
the commission vacate its September 19, 1995 award and amend
David W. Bottenfield's ("claimant") average weekly wage. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
Claimant sustained a compensable lower back injury on
August 4, 1995. On August 21, 1995, employer sent wage
statements to the commission for it to calculate claimant's
average weekly wage. On that same date, employer executed a
Memorandum of Agreement, agreeing to pay claimant compensation
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
based upon an average weekly wage of $862.30. Claimant executed
the Memorandum of Agreement on September 6, 1995. The insurer's
representative, Greg Robinson, informed the commission that he
received the commission's calculation of claimant's average
weekly wage in the amount of $511.69 on September 8, 1995. On
September 13, 1995, Robinson executed the Memorandum of Agreement
on behalf of the insurer and forwarded it to the commission. The
Memorandum of Agreement contained the words, "Corrected Average
Weekly Wage and Comp. Rate." On September 19, 1995, the
commission entered an award based upon an average weekly wage of
$862.30, as stated in the Memorandum of Agreement. Neither
employer nor insurer sought to withdraw the Memorandum of
Agreement prior to the commission's award, nor did they seek
review of the award. On November 3, 1995 and November 28, 1995,
employer filed applications seeking (a) to terminate claimant's
compensation on the ground that he had returned to work and (b) a
credit for overpayment due to an incorrect average weekly wage.
Employer bore the burden of proving a basis upon which the
commission would have been required to vacate its September 19,
1995 award. Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). In
denying employer's request to change claimant's average weekly
wage, the commission found as follows:
Despite receiving Commission calculations,
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the employer agreed to a higher average
weekly wage. To amend this, the employer
would have to prove fraud, mutual mistake, or
imposition. Sovran Financial Corp. v.
Nanney, 12 Va. App. 1156, 408 S.E.2d 266
(1991). The claimant contends that the
calculation contained in the Memorandum of
Agreement is accurate. Therefore, there is
clearly not a mutual mistake. The fact that
the employer agreed to the claimant's
calculation rather than the Commission's
calculation is not in itself the basis for
finding imposition. Nor is there any
evidence of fraud.
The commission's findings are supported by the Memorandum of
Agreement signed by employer and insurer's representative despite
their knowledge that the commission's calculation of the average
weekly wage differed from that stated in the Memorandum of
Agreement. Contrary to the assertions of employer and insurer,
no evidence established that the insurer did not have knowledge
of the commission's wage calculations before its representative
executed the Memorandum of Agreement and forwarded it to the
commission. Robinson received the commission's calculations on
September 8, 1995 and he did not execute the Memorandum of
Agreement until September 13, 1995. Because no evidence showed
that the Memorandum of Agreement was procured by fraud, mutual
mistake, or imposition, we cannot say as a matter of law that the
commission erred in refusing to vacate its award and to amend
claimant's average weekly wage.
For these reasons, we affirm the commission's decision.
Affirmed.
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