VA Industrial Service v. Kenneth Scott Miller ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
VIRGINIA INDUSTRIAL SERVICE AND
CINCINNATI CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 0653-03-3 PER CURIAM
AUGUST 19, 2003
KENNETH SCOTT MILLER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph C. Veith, III; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellants.
(A. Thomas Lane, Jr., on brief), for
appellee.
Virginia Industrial Service and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Kenneth Scott Miller's
application seeking amendment of his pre-injury average weekly
wage was "seasonably presented." Upon reviewing the record and
the parties' briefs, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Employer did not appeal the commission's finding that a
mutual mistake occurred justifying amendment of claimant's
average weekly wage. Accordingly, that finding is binding and
conclusive upon us on appeal.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"[T]he . . . Commission has the implied power, incidental
to those expressly granted, to entertain and hear an
application, seasonably presented, to vacate and set aside an
award procured through fraud or mistake. Whether an application
is seasonably made must necessarily depend upon the facts and
circumstances of the particular case." Harris v. Diamond Const.
Co., 184 Va. 711, 721, 36 S.E.2d 573, 578 (1946).
In ruling that claimant seasonably filed his application
seeking to amend his average weekly wage, the commission found
as follows:
The claimant first received compensation
under an Award on June 5, 2000, and did not
seek to amend the average weekly wage until
January 23, 2002. Even then the claimant
did not know of his precise wages, asserting
only that the original average weekly wage
figure incorrectly did not include overtime.
The employer did not complete a Wage Chart
until April 2002.
The claimant explained that he
understood from the adjuster that overtime
was not included in calculating his average
weekly wage. Once he learned otherwise, in
December 2001, he promptly filed the Claim
to amend the figure. Under these
circumstances, we believe that the Claim was
seasonably made.
Based upon claimant's testimony, the commission, in its
role as fact finder, could reasonably infer that claimant
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sufficiently explained his delay in making a request for an
amendment of his average weekly wage. "Where reasonable
inferences may be drawn from the evidence in support of the
commission's factual findings, they will not be disturbed by
this Court on appeal." Hawks v. Henrico County Sch. Bd., 7
Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Having accepted
the claimant's explanation as credible, the commission did not
abuse its discretion in concluding that his application was
"seasonably presented" under the facts and circumstances of this
case. Harris, 184 Va. at 721, 36 S.E.2d at 578.
Accordingly, we affirm the commission's decision.
Affirmed.
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