COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued by teleconference
ROBERT L. WATTS, SR.
OPINION BY
v. Record No. 2983-02-2 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 5, 2003
P & J HAULING, INC. AND
CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stephen T. Harper (Kerns, Kastenbaum &
Reinhardt, P.L.C., on brief), for
appellant.
Warren H. Britt (Warren H. Britt, P.C.,
on brief), for appellees.
Robert L. Watts, Sr. (claimant) appeals a decision of the
Virginia Workers' Compensation Commission denying his claim for
temporary total disability benefits from June 25, 2001 through
September 12, 2001, and from October 18, 2001 through February
25, 2002. Claimant complains that the commission erred in
holding (1) that the evidence was insufficient to establish a de
facto award, and (2) that the claimant was required to prove he
adequately marketed his residual work capacity during the June
through September and October through February time periods.
For the reasons that follow, we affirm the decision of the
commission.
I. Background
Claimant began working as a truck driver for P & J Hauling,
Inc. (employer) in April 2001. On April 23, 2001, while
adjusting a tarp arm on a tractor-trailer truck, he suffered an
accidental injury to his shoulders and right elbow. However, he
continued to work for employer until June 25, 2001, when he was
treated for his injury by Dr. Thorp J. Davis. Dr. Davis found
injury to both shoulders and contusion of the right elbow, but
released claimant to light-duty work. On October 17, 2001,
claimant made a return visit to Dr. Davis, who indicated on a
work status form that claimant was capable of light/medium duty
work. During the week of November 24, 2001, claimant worked for
employer. After several more visits to doctors in December
2001, January, and February 2002, on February 26, 2002, claimant
underwent surgery for a distal clavicle excision.
Starting on June 25, 2001, employer began making voluntary
payments based on an average weekly wage of $482.23 and
continued those payments through February 21, 2002. On
September 4, 2001, claimant filed a Claim for Benefits for
accidental injury, seeking total temporary disability benefits
beginning June 25, 2001 and continuing, as well as medical
benefits. In a letter attached to his Claim for Benefits,
claimant disagreed with employer's calculation of his average
weekly wage.
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The employer's insurer sent claimant an Agreement to Pay
Benefits (formerly called a "Memorandum of Agreement") executed
by insurer on September 11, 2001. The agreement form reflected
that employer would pay temporary total disability benefits
based on the employer's average weekly wage calculation of
$482.23. An enclosed letter requested claimant to sign the form
and return it so it could be filed with the commission.
Claimant refused to endorse the agreement because of his dispute
with employer's average weekly wage calculation. On February 5,
2002, claimant's attorney filed a new claim for benefits form,
alleging an average weekly wage of $600, and requesting a
hearing. About seven months after the insurer sent the
agreement, claimant signed the agreement form and forwarded it
to insurer on April 15, 2002; however, the agreement was never
filed with the commission.
The matter went to hearing before Deputy Commissioner
Stevick on May 17, 2002. The parties stipulated before the
commission that: (1) claimant suffered a compensable injury by
accident; (2) claimant was released to light duty on June 25,
2001, and again on October 18, 2001; (3) voluntary payments were
made between June 25, 2001 and February 21, 2002, totaling
$11,114.02 based on an average weekly wage of $482.23;
(4) claimant was totally disabled between September 13, 2001 and
October 17, 2001, and February 26, 2002 and continuing; (5) an
agreement to pay benefits was sent to claimant on September 11,
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2001 and returned to insurer on April 15, 2002, but not
submitted to the commission; (6) claimant worked for employer
the week of November 24, 2001, earning $209.34; and,
(7) claimant did not market his residual capacity.
By opinion dated May 29, 2002, the deputy commissioner
found that claimant's benefits should have been based on an
average weekly wage of $513.46. She also found that claimant
was totally disabled for the periods stipulated to, September
13, 2001 through October 17, 2001, and February 26, 2002 and
continuing. However, during the remaining periods, because
claimant was released to light-duty work, and because the
evidence failed to support a finding of a de facto award,
claimant was obligated to market his residual capacity.
Therefore, the deputy commissioner denied benefits for those
remaining periods, except for the week claimant worked for
employer. The deputy commissioner also found that employer was
entitled to a credit for benefits paid.
On appeal by claimant, the commission affirmed the decision
of the deputy commissioner, finding that no de facto award could
be recognized in the case and that where no award had been made,
claimant is under a continuing duty to market his residual work
capacity.
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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).
The Virginia Workers' Compensation Act encourages the
voluntary settlement of claims arising from compensable
injuries. Code § 65.2-701(A) reads, in pertinent part:
If after injury . . . the employer and the
injured employee . . . reach an agreement
for compensation or in compromise of a claim
for compensation under this title, a
memorandum of agreement in the form
prescribed by the Commission shall be filed
with the Commission. The agreement may be
prepared by the employee, the employer or
the compensation carrier.
The statute also provides that an employer or insurer who fails
to file such agreement with the commission within fourteen days
of the date of its complete written execution may be subject to
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a fine and sanctions. Code § 65.2-701(B). It also reiterates
the policy to encourage such agreements, "so long as the amount
of compensation and time and manner of payment are approved by
the Commission." Code § 65.2-701(C).
In this case, after claimant sought medical treatment for
his injury, employer began making voluntary payments to
claimant, agreeing the claim was compensable. Two months later,
employer's insurer prepared and executed an agreement form and
sent the form to claimant along with a letter requesting
claimant to sign and return the form so it could be filed with
the commission. Claimant did not immediately return the
agreement, and he filed a request for hearing because he
disagreed with the employer's average weekly wage calculation.
While Code § 65.2-701 requires an employer to file an agreement
form within fourteen days of its complete written execution,
nothing in the statute suggests that the parties are deemed to
have entered into an agreement if the employer agrees to
compensability and makes voluntary payments to a claimant, even
though the parties disagree as to the amount of compensation.
In fact, the Act recognizes that, along with time and manner of
payment, the amount of compensation is important to approval of
a settlement. See Code § 65.2-701(A) ("agreement for
compensation"), and Code § 65.2-701(C) ("amount of
compensation").
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Contrary to claimant's contention, he was not forced to
sign the agreement form executed by employer to his detriment if
he disputed such proposed agreement. First, the statute allows
an "employee, the employer or the compensation carrier" to
prepare an agreement. Second, if a claimant signs an agreement
with which he later disagrees, he may withdraw from the
agreement prior to its approval. Furthermore, any award that
would have been premised on the agreement will not be entered,
and the case will be scheduled for hearing. Code § 65.2-702.
At hearing, a claimant is entitled to present evidence on the
average weekly wage calculation. In this case, claimant was
provided an opportunity to present evidence to dispute
employer's average weekly wage calculation, and the average
weekly wage calculation was modified. Third, an award is
subject to modification upon the grounds of fraud,
misrepresentation, mistake or imposition. John Driggs Co. v.
Somers, 228 Va. 729, 324 S.E.2d 694 (1985); Harris v. Diamond
Constr. Co., 184 Va. 711, 36 S.E.2d 573 (1946). The commission
has liberally corrected awards that were based upon an incorrect
average weekly wage calculation on the grounds of imposition or
mistake of fact, whether mutual or unilateral. Collins v. Dep't
of Alcoholic Bev. Control, 21 Va. App. 671, 680, 467 S.E.2d 279,
283, aff'd en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996).
Claimant contends that the evidence supports a finding of a
de facto award because the parties stipulated that there was a
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compensable injury by accident and that employer made voluntary
payments to claimant for a substantial period of time without
filing the agreement with the commission as required by statute.
De facto awards of compensation were first affirmed in Nat'l
Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987)
(en banc). McGuinn was premised on a finding that the employer
was clearly attempting to frustrate the purpose behind Code
§ 65.1-93, recodified in 1991 as Code § 65.2-701, which
encourages voluntary execution and filing of settlements between
an employer and an injured employee. McGuinn, 5 Va. App. at
270, 362 S.E.2d at 189-90. McGuinn was also premised on the
fact that the statute did not explicitly provide penalties for
an employer's failure to comply with its provisions. Id. at
270, 362 S.E.2d at 189. Two years after the McGuinn decision,
in 1989, a penalty was added to the statute by the General
Assembly. In 1991, the legislature again amended the language
of the statute to allow an employee, an employer, or a
compensation carrier to prepare the memorandum of their
agreement.
In this case, there was no evidence that the employer was
attempting to manipulate itself into a more favorable position
while at the same time accepting the claim in practical terms.
The record indicates that claimant and employer had a dispute
about the amount of the average weekly wage. Thus, the facts of
this case are not analogous to those of McGuinn.
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The parties here stipulated to the compensability of the
injury, but the amount of compensation clearly remained in
dispute. Even after claimant signed and returned the agreement
form, he continued to dispute employer's average weekly wage
calculation up to and at the hearing. Credible evidence in the
record supports the commission's finding that the parties never
reached agreement as to the amount of compensation. Therefore,
the commission did not err in holding that claimant was not
entitled to a de facto award in this case.
Employer asserted a defense that claimant was required to
market his residual work capacity before he is entitled to
temporary total disability benefits. 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); 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). The parties
stipulated that claimant was released to light duty on June 25,
2001, and again on October 18, 2002, and that claimant was
totally disabled between September 13, 2001 and October 17,
2001, and February 26, 2002 and continuing. Claimant also
stipulated that he did not market his remaining capacity for
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work and that he had worked the week of November 24, 2001 for
employer.
Claimant argues that even if a de facto award is not found,
he should not be required to market his residual capacity
because the employer accepted that his claim was compensable.
Even though employer began making voluntary payments, claimant
was not under an award, and he could not reasonably rely upon
employer's voluntary payments to avoid his requirement to
market. Washington Metro. Area Transit Auth., 228 Va. at 601,
324 S.E.2d at 656. An employer's voluntary payment of
compensation or disability benefits does not waive its right to
assert defenses, absent fraud or concealment. Stuart Circle
Hosp. v. Alderson, 223 Va. 205, 288 S.E.2d 445 (1982).
The claimant stipulated that he had been put on light-duty
work. No evidence indicates he was prevented from marketing his
residual capacity. Thus, because there was no award, and
because the facts do not support a finding of a de facto award,
the claimant was under a duty to market his residual work
capacity. Accordingly, the decision of the commission is
affirmed.
Affirmed.
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