Newport News Shipbuilding,et al v. Elaine L. Bailey ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION*
v. Record No. 1782-03-1 PER CURIAM
DECEMBER 23, 2003
ELAINE LEONA BAILEY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Jonathan H. Walker; Mason, Mason, Walker & Hedrick, P.C., on
brief), for appellant.
(Matthew H. Kraft; Rutter Mills, L.L.P., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (employer) contends the Workers’
Compensation Commission erred in refusing to (1) retroactively modify Elaine Leona Bailey’s
(claimant) open award of temporary total disability (TTD) benefits as of February 1, 2002, the
date claimant returned to light-duty work, and allow employer a credit against future
compensation; and (2) allow employer to take a credit pursuant to Code § 65.2-520 for
overpayments of compensation made to claimant from February 1, 2002 through October 17,
2002. 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.
The facts are undisputed. On December 20, 2001, a deputy commissioner awarded
claimant medical benefits and TTD benefits beginning November 22, 2000 and continuing based
upon a pre-injury average weekly wage of $553.79, with respect to her compensable
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
occupational disease of bilateral carpal tunnel syndrome. The full commission affirmed the
deputy commissioner’s award on September 16, 2002.
On November 12, 2002, employer filed an application alleging claimant had returned to
light-duty work on January 30, 2002 and seeking a “change of an outstanding award for
temporary total or temporary partial.” The evidence showed that employer had paid TTD
benefits to claimant through October 17, 2002, pursuant to claimant’s open award.
Claimant submitted wage information indicating that she earned a post-injury average
weekly wage of $78.09, beginning February 1, 2002.
The deputy commissioner ruled that employer was not entitled to retroactive modification
of claimant’s open award for TTD benefits because employer did not allege that claimant failed
to report her return to work or any increase in earnings to employer. The deputy commissioner
concluded that employer was entitled to a modification of the TTD award to an award of
temporary partial compensation as of October 18, 2002, the date that employer stopped paying
TTD benefits to claimant.1
The full commission affirmed the deputy commissioner’s decision. In so ruling, the
commission found as follows:
[T]o be entitled to a credit pursuant to § 65.2-520, an employer
must show it made payments to the claimant which “were not due
and payable when made.” Here, the claimant was under an open
award for [TTD] compensation when she was paid temporary total
benefits from February 1 through October 17, 2002. Therefore, the
payments, which were made to the claimant during this time
period, were “due and payable when made” and § 65.2-520 does
not apply.
Moreover, the Deputy Commissioner did not err when he
concluded that he lacked the authority to retroactively modify the
claimant’s open award pursuant to Code §§ 65.2-708 and 65.2-712
1
We note that employer does not challenge the commission’s factual finding that
employer stopped paying TTD benefits to claimant as of October 18, 2002. Accordingly, that
finding is binding and conclusive upon us on appeal.
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since there is no evidence that the claimant misrepresented or
failed to report her earnings.
(Footnote omitted.)
Retroactive Modification of Open TTD Award
Code § 65.2-712 provides in pertinent part as follows:
So long as an employee . . . receives payment of
compensation under this title, any such person shall have a duty
immediately to disclose to the employer, when the employer is
self-insured, or insurer in all other cases, any . . . return to
employment [or] increase in his earnings . . . . Any payment to a
claimant by an employer or insurer which is later determined by
the Commission to have been procured by the employee . . . by
fraud, misrepresentation, or failure to report any . . . return to
employment [or] increase in earnings . . . may be recovered from
the claimant . . . by the employer or insurer either by way of credit
against future compensation payments due the claimant . . . or by
action at law against the claimant . . . .
Here, employer made no allegation and presented no evidence that claimant failed to
report a return to work or increase in earnings. Thus, Code § 65.2-712 was not applicable to
allow a credit against future compensation for any benefits paid by employer from the date
claimant returned to light-duty work until employer stopped paying benefits. In addition, no
language contained in this code section, Code § 65.2-708, or Rule 1.4(C)(1) of the Rules of the
Virginia Workers’ Compensation Commission gives the commission the authority to
retroactively modify an open award of compensation benefits under the facts of this case.
Code § 65.2-520 Credit
Code § 65.2-520 provides as follows:
Any payments made by the employer to the injured
employee during the period of his disability, or to his dependents,
which by 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
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one-fourth of the amount of the weekly payment for as long as
necessary for the employer to recover his voluntary payment.
During the period from February 1, 2002 through October 17, 2002, an open award order
existed in favor of claimant, which required employer to make ongoing payments of TTD
benefits to claimant. Thus, during that time period, TTD benefits paid by employer were, by the
terms of the Workers’ Compensation Act, due and payable when made. Accordingly, Code
§ 65.2-520 was not applicable to allow a credit against future compensation in this case.
For these reasons, we affirm the commission’s decision.
Affirmed.
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