Terri Lee Robinson v. Olan Mills and Zurich Ins.Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
TERRI LEE ROBINSON
MEMORANDUM OPINION*
v. Record No. 0839-99-3 PER CURIAM
SEPTEMBER 7, 1999
OLAN MILLS, INC. AND
ZURICH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(P. Scott DeBruin; DeBruin & Layne, P.C., on
brief), for appellant.
(Charles F. Midkiff; Midkiff & Hiner, P.C.,
on brief), for appellees.
Terri Lee Robinson (claimant) contends that the Workers’
Compensation Commission (commission) erred in finding that the
voluntary payment of compensation benefits to her for more than
two years by Olan Mills, Inc. and its insurer (hereinafter
referred to as "employer") did not constitute a de facto award.
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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
So viewed, the evidence proved that on November 29, 1995,
while working for employer as a photographer, claimant injured
her neck and back. Employer voluntarily paid compensation
benefits to claimant from November 29, 1995 through February
1998, but did not file a Memorandum of Agreement with the
commission.
On December 12, 1997, claimant filed a Claim for Benefits
related to the November 29, 1995 incident. At the hearing,
employer defended against the claim on the ground that claimant
did not sustain a compensable injury by accident arising out of
and in the course of her employment.
Based upon this record, we find that the commission did not
err in ruling that a de facto award did not exist and that
"employer defended the compensability of this claim in good
faith, and that the employer's voluntary payment of benefits
[did] not prevent it from contesting the compensability of the
underlying claim." Here, employer did nothing more than make
voluntary payments to claimant. "An employer and carrier are
not estopped from denying future payments merely because they
had paid them in the past." Rucker v. Thrift Transfer, Inc., 1
Va. App. 417, 420, 339 S.E.2d 561, 562 (1986).
Claimant relies upon our holdings in National Linen Serv.
v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), and
City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App.
Dec. 19, 1995), in support of her argument that a de facto award
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existed in this case. However, those cases are factually
distinguishable from this case.
In McGuinn, unlike this case, the employer stipulated to
the compensability of the claim. McGuinn, 5 Va. App. at 271,
362 S.E.2d at 190. Then, after accepting the claim as
compensable, National Linen defended solely on the ground that
McGuinn failed to market his residual work capacity. See id. at
268, 362 S.E.2d at 188. In this case, employer never accepted
the claim as compensable, and in fact, challenged the
compensability of the claim at the hearing.
In Anderson, unlike this case, the employer accepted the
claimant's condition as compensable before it stopped paying
compensation benefits and challenged the causal relationship
between the claimant's disability and his employment.
Because the commission did not err in finding that there
was no de facto award, claimant bore the burden of proving that
she sustained a compensable injury by accident arising out of
and in the course of her employment. The commission ruled that
claimant's evidence failed to sustain her burden of proof. She
did not appeal that finding. Accordingly, it is binding and
conclusive upon us on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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