Herbert C. King, Jr. v. Pepsi Cola Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Norfolk, Virginia
HERBERT C. KING, JR.
MEMORANDUM OPINION * BY
v. Record No. 0356-98-2 JUDGE RICHARD S. BRAY
FEBRUARY 9, 1999
PEPSI COLA COMPANY and
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
T. Andrew Lingle for appellant.
J. Derek Turrietta (William W. Nexsen;
Stackhouse, Smith & Nexsen, on brief), for
appellees.
Herbert C. King, Jr. (claimant) complains on appeal that the
Workers' Compensation Commission (commission) erroneously
relieved Pepsi Cola Company and Lumbermens Mutual Casualty
Company (employer) from the simultaneous payment of permanent
partial and temporary partial disability benefits, together with
related penalties, previously ordered by the commission. We
disagree and affirm the decision.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below, employer in this
instance. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.
211, 212, 390 S.E.2d 788, 788 (1990). "'If there is evidence, or
reasonable inferences can be drawn from the evidence, to support
the commission's findings, they will not be disturbed on review,
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
even though there is evidence in the record to support a contrary
finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431
S.E.2d 342, 344 (1993) (citation omitted).
The record discloses that claimant suffered a compensable
injury by accident on December 14, 1995. Employer accepted the
resulting claim, and temporary disability and medical benefits
were awarded by the commission pursuant to several memoranda of
agreement submitted by the parties. Claimant subsequently
resumed employment at the pre-injury wage, and disability
compensation was terminated, again by agreement.
On October 4, 1996, claimant lodged a related claim with the
commission, seeking permanent partial disability benefits.
Following appropriate consideration, a deputy commissioner, on
May 6, 1997, awarded claimant "permanent partial disability
compensation beginning August 19, 1996, based upon a forty
percent loss of use of his left arm, . . . and continuing for a
period of 80 weeks." Employer filed a timely request for review,
and the full commission affirmed the deputy by opinion dated
September 3, 1997.
In the interim, claimant also pursued temporary partial
disability benefits, which were awarded by the commission by
order of October 10, 1997, in accordance with a Supplemental
Memorandum of Agreement. However, in addition to such agreed
temporary partial disability benefits, the October order noted,
parenthetically, that such "benefits are to be made
- 2 -
simultaneously with the Commission's previous award entered in
this case providing for permanent disability benefits."
Objecting to the simultaneous payment provision, employer's
counsel telephoned the commission on October 15, 1997 and spoke
with a person identifying herself as Carolyn Fleming, a
commission "claims examiner" previously involved with the file.
Counsel was then advised that the order incorrectly required
simultaneous payment and was assured that a corrected award would
be forthcoming. Counsel confirmed this communication by letter
to Fleming, dated November 11, 1997, and ignored the order of
October 10, 1997, in anticipation of an amended award. Shortly
thereafter, claimant notified the commission of employer's
noncompliance, and, on December 4, 1997, Deputy Commissioner
Phillips ordered employer to "immediately" pay "[a]ll
compensation currently owed" pursuant to the disputed order,
together with a twenty percent penalty.
Employer again contacted Fleming by letter dated December 5,
1997, reminded her of the earlier conversation and
correspondence, and protested the inconsistent action of Deputy
Commissioner Phillips. In response, Fleming denied previously
speaking with counsel and advised that the awards were final and
the penalty properly due. Employer then filed a request for
review of both the penalty and order requiring simultaneous
payment, urging the commission to invoke its continuing
jurisdiction to redress "fraud, imposition, or estoppel."
- 3 -
On review, the commission found "counsel's November 11, and
December 5, 1997, letters to [Fleming] persuasive and
compelling," and, therefore, concluded "that counsel made a good
faith effort to contact . . . the claims department to assert
. . . disagreement with the award order" requiring simultaneous
payment. The commission interpreted Code § 65.2-503(E)(2) to
permit, but not mandate, simultaneous payments, a construction
approved by claimant on brief, and found that such payments were
neither intended by employer nor properly ordered by the
commission in this instance. Thus, expressly asserting its
"implied power . . . to vacate an award procured through fraud or
mutual mistake," the commission amended the October order to
relieve employer from simultaneous temporary and permanent
partial disability payments and the related penalty.
On appeal, claimant contends that employer's failure to
timely appeal the orders of September 3 and October 10, 1997
barred review by the commission. See Code §§ 65.2-705, -706;
Rule 5A:11(b), Rules of the Supreme Court of Virginia; Rule 3,
Rules of the Virginia Workers' Compensation Commission. However,
it is well established that the commission may exercise
jurisdiction after the expiration of appeal periods to redress
fraud, imposition or mistake. See Harris v. Diamond
Construction, 184 Va. 711, 720-21, 36 S.E.2d 573, 577-78 (1946).
"Within the principles established by statutes and the
Supreme Court decisions, the commission has '"jurisdiction to do
- 4 -
full and complete justice in each case."' Justice is not
attained by failing to correct obvious mistakes or declining to
place the parties in positions which are in accord with the Act."
Collins v. Department of Alcoholic Beverage Control, 21 Va. App.
671, 681, 467 S.E.2d 279, 283-84 (citations omitted), aff'd en
banc, 22 Va. App. 625, 472 S.E.2d 287 (1996). In Collins, we
noted that "[i]t is immaterial whether the mistake of fact is
mutual or unilateral." Id. at 680, 467 S.E.2d at 283. The
burden is upon the party attacking an award to establish mistake
by clear and convincing evidence. See J & D Masonry v. Kornegay,
224 Va. 292, 295, 295 S.E.2d 887, 889 (1982) (citations omitted).
Here, the commission ordered employer to make simultaneous
payments in the October 10, 1997 award, a result intended by
neither the commission nor employer. Once aware of the error,
employer promptly contacted the commission and was advised that
the order was incorrect and assured that an amended award would
immediately issue. Under such circumstances, the commission
properly acted to correct an administrative error, a remediation
consistent with commission purposes and within well established
implied authority.
Accordingly, we affirm the disputed order.
Affirmed.
- 5 -
Benton, J., concurring.
In Collins v. Department of Alcoholic Beverage Control, 21
Va. App. 671, 467 S.E.2d 279, aff'd en banc, 22 Va. App. 625, 472
S.E.2d 287 (1996), I dissented from this Court's holding that the
commission's power to remedy a mistake by the parties is not
constrained by whether the mistake is mutual or unilateral. See
21 Va. App. at 681-87, 467 S.E.2d at 284-86 (Benton, J.,
dissenting). I believe that this appeal presents the case in
which this Court has the opportunity to correctly limit its
ruling, i.e., to mistakes that were caused, not by the parties,
but by the commission or its staff.
On September 3, 1997, the commission awarded Herbert C.
King, Jr., "permanent partial disability benefits based on a 40%
impairment of the left upper extremity." Pepsi Cola Company did
not appeal from that award. A month after entry of the award of
permanent partial disability, the commission approved a
memorandum of agreement and on October 10, 1997, awarded King
temporary partial disability benefits of $480 weekly. Without
direction from either the commission or the parties, the
commission's claims department added the following language to
the temporary partial disability award order:
(NOTE: TEMPORARY PARTIAL BENEFITS ARE TO BE
MADE SIMULTANEOUSLY WITH THE COMMISSIONS
PREVIOUS AWARD ENTERED IN THIS CASE PROVIDING
FOR PERMANENT DISABILITY BENEFITS.)
Pepsi Cola did not appeal from that award. Instead, it
- 6 -
informally sought to have the claims department delete the
notation from the award order. When Pepsi Cola's efforts were
unsuccessful and the deputy commissioner assessed a penalty
against Pepsi Cola for its delay in making payments, Pepsi Cola
requested a review by the commission. The commission found that
the claims department mistakenly added to the October 10, 1997
award order the language requiring simultaneous payment of
temporary partial benefits and permanent partial benefits.
Although Code § 65.2-503(E)(2) allows simultaneous payments,
nothing in the record established that either party had raised
that issue. The commission found from the evidence that "it
[was] obviously [Pepsi Cola's] intent to pay the awards
consecutively and not simultaneously." The claims department had
acted without any indication of the parties' intentions and
inserted the notation on the award without direction from either
the commission or the parties. Thus, the mistake was an
administrative mistake and not the mistake of either party.
In its prior decisions, the commission has held that when "a
mistake on the part of the [c]ommission [occurs, the commission
has] . . . the implied power . . . [to] take jurisdiction even
though the application for review was [not timely]." Perkins v.
Alexandria City School Board, 71 W.C. 16, 18 (1992). See also
Harris v. Diamond Construction Co., 184 Va. 711, 720, 36 S.E.2d
573, 577 (1946) (holding that the commission has the power to
protect its awards from mistake). Because the mistake was not
- 7 -
caused by either of the parties, the commission did not need to
determine whether the mistake was mutual or unilateral to grant
relief. Cf. Masonry v. Kornegay, 224 Va. 292, 295, 295 S.E.2d
887, 889 (1982) (holding that relief will not be granted when
"the evidence proves merely a unilateral mistake of fact by the
carrier unaccompanied by any fraud attributable to the
claimant"); Collins, 21 Va. App. at 681-87, 467 S.E.2d at 284-87(Benton, J., dissenting) (noting that the commission's power to
amend an award for a party's mistake requires a showing of a
mutual mistake of fact).
Credible evidence established that the mistake was made by
the commission's claims department. Therefore, I would also
affirm the commission's ruling.
- 8 -