COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued by teleconference
STEVEN L. WHITE
OPINION BY
v. Record No. 2954-02-2 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 5, 2003
REDMAN CORPORATION AND
TWIN CITY FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stephen T. Harper (Kerns, Kastenbaum &
Reinhardt, P.L.C., on brief), for
appellant.
S. Vernon Priddy III (Sands Anderson
Marks & Miller, on brief), for appellees.
Steven L. White (claimant) appeals a decision of the
Virginia Workers' Compensation Commission denying his claim for
compensation benefits after December 13, 2000. Claimant
contends that the commission incorrectly held that (1) claimant
was not entitled to a finding of a de facto award, and (2)
claimant had a duty to market his residual capacity to work
after December 13, 2000. For the reasons that follow, we affirm
the decision of the commission.
I. Background
Claimant, a resident of New York, began working in Virginia
as an ironworker with Redman Corporation, a bridge building
company, in the fall of 1999. On February 23, 2000, claimant
suffered multiple fractures to his pelvis, right elbow, right
arm, right hand and legs due to an accidental fall from a
bridge. Claimant was initially treated for his injuries by
orthopedic surgeon Dr. Robert Adelaar. After discharge from the
hospital, on March 3, 2000, claimant required home health care
for approximately two months.
Employer began making voluntary payments on February 24,
2000 in the amount of $407.82, based on an average weekly wage
of $611.73. On April 13, 2000, claimant filed a Claim for
Benefits for accidental injury, seeking permanent disability
benefits beginning February 24, 2000 and continuing. On July
14, 2000, employer sent claimant a proposed "Memorandum of
Agreement" to pay benefits. The agreement form reflected that
employer would pay temporary total benefits of $407.82 per week
based on an average weekly wage of $611.73, consistent with the
voluntary payments employer had been making since the day after
the injury. A letter enclosed with the agreement form requested
that claimant sign the agreement and return it to employer as
soon as possible so it could be submitted to the commission.
On September 18, 2000, claimant sent letters to the
commission and employer acknowledging receipt of the agreement
form and disputing the employer's average weekly wage
calculation. There was no evidence that the agreement form was
ever signed by the claimant or that it was ever submitted to the
commission.
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On December 13, 2000, a doctor with whom claimant was
consulting in New York, reported on a New York State Workers'
Compensation form that claimant was able to perform light duty.
Also on December 13th, claimant sent a letter to the commission
requesting a continuance and acknowledging that employer was
raising a defense of failure to market. The commission granted
the request for continuance until September 24, 2001, when the
matter went to hearing.
At hearing, the parties stipulated that, (1) claimant
suffered a compensable injury by accident on February 23, 2000;
(2) claimant made no effort to market any residual capacity
since his accident; and (3) wage figures of a similarly situated
employee of employer that were presented to the commission for
the purpose of calculating claimant's average weekly wage were
accurate. The deputy commissioner calculated claimant's average
weekly wage at $809.91, determined that claimant was released to
light duty on December 13, 2000, and found that claimant was
required to market his residual capacity because there was no
agreement as to compensation between the parties that would
trigger a finding of a de facto award.
Both parties sought review of the deputy commissioner's
decision. On October 18, 2002, the commission affirmed the
award, ruling that a de facto award was not appropriate in this
case and that claimant had a reasonable basis to conclude that
he could perform some light duty as of December 13, 2000.
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II. Analysis
In accordance with well established principles, we consider
the evidence in the light most favorable to the party prevailing
below. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.
613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings of the
commission that are supported by credible evidence are
conclusive and binding upon this Court on appeal." So. Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993). The commission's findings, if supported by credible
evidence or reasonable inferences drawn from the evidence, will
not be disturbed upon review, even though the record may contain
evidence to support a contrary finding. Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d
876, 877 (1986).
Claimant contends that the evidence supports a finding of a
de facto award because the parties stipulated that there was a
compensable injury by accident and that employer made voluntary
payments to claimant for a substantial period of time without
filing a memorandum of agreement with the commission as required
by statute. Claimant asserts that the facts of this case
parallel the facts of Nat'l Linen Serv. v. McGuinn, 5 Va. App.
265, 362 S.E.2d 187 (1987) (en banc). We disagree.
In McGuinn, the parties had no dispute as to any issue of
compensation. The employer, in contravention of the policy
behind Code § 65.1-93 (now Code § 65.2-701), which encourages
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the voluntary settlement of claims, failed to prepare, execute
or file a memorandum of agreement. In this case, employer
forwarded an agreement form to claimant with a request that he
sign and return it as soon as possible so it could be filed with
the commission. Claimant elected not to sign the agreement form
because he did not agree with the average weekly wage
calculation. In a letter to employer, dated December 13, 2000,
claimant demonstrated that the parties were not in agreement by
stating that the case could not go forward until the average
weekly wage issue was resolved.
In Watts v. P & J Hauling, ___ Va. App. ___, ___ S.E.2d
___ (2003), a case factually similar, also decided this day, we
held that the finding of a de facto award requires that the
parties are in agreement as to the amount of compensation.
Despite claimant's contention, he was not in the untenable
position of being forced to sign the employer's proposed
agreement to his detriment. He had several options open to him,
including preparing his own agreement form and forwarding it to
employer to execute and file with the commission. Code
§ 65.2-701(A).
The statute recognizes that the amount of compensation is a
necessary part of the agreement. In pertinent part, it states,
"If after injury or death, the employer and the injured employee
or his dependents reach an agreement in regard to compensation
. . . ." Id. (emphasis added). It also states, "Nothing herein
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contained shall be construed so as to prevent settlements made
by and between the employee and employer, but rather to
encourage them, so long as the amount of compensation and the
time and manner of payment are approved by the Commission."
Code § 65.2-701(C) (emphasis added).
The commission's finding that the parties never reached an
agreement as to the amount of compensation is supported by
credible evidence in the record. Thus, the commission did not
err in finding that claimant was not entitled to a de facto
award.
A partially incapacitated employee, absent an award from
the commission, is not entitled to temporary total disability
benefits unless he has made a reasonable effort to market his
remaining capacity for work. Washington Metro. Area Transit
Auth. v. Harrison, 228 Va. 598, 600-01, 324 S.E.2d 654, 655-56
(1985). See also Pocahontas Fuel Co. v. Agee, 201 Va. 678, 112
S.E.2d 835 (1960); Pocahontas Fuel Co. v. Barbour, 201 Va. 682,
112 S.E.2d 904 (1960). Because claimant was required to market
his residual work capacity after December 13, 2000, and
stipulated that he did not, he is not entitled to benefits after
that date.
Affirmed.
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