COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
MONDELL H. WASHINGTON
OPINION BY
v. Record No. 1168-02-3 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 25, 2003
UNITED PARCEL SERVICE OF AMERICA AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
George L. Townsend (Bradford M. Young;
Chandler, Franklin & O'Bryan, on briefs), for
appellant.
Patricia C. Arrighi (Jesse F. Narron;
Taylor & Walker, P.C., on brief), for
appellees.
Mondell Washington appeals from a decision of the Virginia
Workers' Compensation Commission refusing to enforce the terms of
an open award, and denying Washington's request to assess a 20%
penalty against United Parcel Service of America and Liberty
Mutual Fire Insurance Company (UPS), pursuant to Code § 65.2-524,
for failing to pay Washington certain benefits under the open
award. For the following reasons, we affirm the decision of the
commission.
I. Background
On appeal, we review the evidence, together with all
reasonable inferences that may be drawn, in the light most
favorable to UPS, the party prevailing before the commission.
Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525
S.E.2d 55, 56 (2000). So viewed, the evidence below established
that, at the time of his initial injury, Washington had been
employed with UPS for approximately six years as a "preloader."
His duties in that capacity required him to load delivery trucks.
During his subsequent employment with UPS, Washington incurred
three separate injuries to his right knee.
A. June 18, 1997 Injury
On June 18, 1997, Washington injured his right knee when "he
stepped between the loading dock and a delivery truck," causing
his knee to "twist." Washington reported the injury to his
supervisor that day, and UPS filed its Employer's Accident Report
on June 25, 1997.
Washington did not apply for benefits as a result of the
injury until July 24, 2000. UPS accepted Washington's claim as
compensable on August 23, 2000, and the parties filed a Memorandum
of Agreement pertaining to the related benefits on May 7, 2001.
However, the commission rejected the memorandum because it was not
properly signed by UPS's insurance carrier.
B. August 4, 1998 Injury
On August 4, 1998, Washington injured his right knee again
when he "twisted" it after stepping down from a truck, onto an
"uneven surface." Washington promptly reported the injury to his
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supervisor, and UPS then filed an Employer's Accident Report with
the commission.
Washington also applied to the commission for benefits for
this injury on July 24, 2000. UPS accepted the injury as
compensable on August 25, 2000, and the parties filed a Memorandum
of Agreement on May 7, 2001. This memorandum was properly filed
and on May 15, 2001, the commission awarded Washington temporary
total disability benefits for the closed period of August 5, 1998
through November 8, 1998 (the time during which Washington was off
of work due to treatment for his injury, which included
arthroscopic surgery), as well as medical benefits pursuant to
Code § 65.2-603.
C. September 15, 1999 Injury
Washington injured his right knee once again on September 15,
1999, as he was "walking down a steep driveway in [rain] and
slipped," feeling his knee "pop." Washington and UPS again
promptly reported the accident and, in March of 2000, entered into
an agreement for payment of related benefits. Accordingly, the
commission entered an award on May 16, 2000, granting Washington
temporary total disability benefits beginning September 16, 1999,
and continuing "during [his] incapacity," and medical benefits,
pursuant to Code § 65.2-603, "for as long as necessary."
D. Treatment History
Washington returned to work after his second knee injury, and
related arthroscopic surgery, on November 9, 1998.
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After his third injury, on September 15, 1999, Washington
returned to his treating physician, Dr. Andre Eglevsky,
complaining of pain in his knee. Dr. Eglevsky treated Washington
for several months thereafter and performed an additional
arthroscopic surgery. He released Washington from work on several
occasions during that time. However, on June 6, 2000, after
treating Washington for several months and finding no objective
cause of the knee pain Washington complained of, Dr. Eglevsky
stated that he had "absolutely no idea" why Washington was
continuing to suffer pain as he reported and released Washington
to work, with no restrictions, as of June 8, 2000.
Washington returned to work on June 9, 2000. However, he
subsequently sought treatment from Dr. Kurt Larson, expressing his
desire to undergo an additional arthroscopic surgery, and
cartilage harvesting. Dr. Larson removed Washington from work on
March 28, 2001, until approximately four weeks following the
diagnostic surgery. Washington underwent the procedure on June
15, 2001.
E. Commission Proceedings
UPS stopped payment of benefits to Washington under the May
16, 2000 award for the September 1999 injury as of June 9, 2000,
when Washington returned to work with a full release from
Dr. Eglevsky. However, UPS never filed a request for termination
of the award with the commission.
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In April and May of 2001, Washington filed change of
condition applications requesting additional benefits for each of
the three separate injuries, seeking benefits, including temporary
total disability benefits, beginning March 28, 2001 and
continuing.
On May 14, 2001, Washington filed an additional application
with the commission requesting that the commission assess a 20%
penalty against UPS, pursuant to Code § 65.2-524, for its failure
to pay him benefits under the May 16, 2000 award after June 9,
2000, when he returned to work.
The commission entered an award granting Washington's request
for the penalty assessment on June 7, 2001. However, UPS did not
respond, and the commission issued a show cause order. At
Washington's request, the commission scheduled a hearing on
September 4, 2001, to hear evidence concerning each of his change
of condition applications, including the show cause.
As a result of that hearing, the deputy commissioner found
that 1) Washington was barred from requesting any benefits for the
June 18, 1997 injury, because he failed to file his initial
application for benefits within the statutory limitation period
provided in Code § 65.2-601; 2) Washington was barred from
receiving benefits on a change of condition application for the
August 4, 1998 injury, because he was last paid compensation for
the injury on November 8, 1998 and thus failed to file an
application for review within the twenty-four month period after
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compensation was last paid, as required by Code § 65.2-708; 3)
Washington was further barred from receiving additional benefits
for the August 4, 1998 injury because it was causally unrelated to
the March 28, 2001 disability period, for which Washington sought
to receive additional benefits; 4) Washington was not entitled to
the requested 20% penalty because, "while [UPS was] woefully
remiss in not terminating the May 16, 2000 award," any disability
Washington suffered after he was released to return to work on
June 9, 2000, without restriction was causally unrelated to any of
his prior injuries; and 5) the May 16, 2000 award should be
terminated because Washington was given a full release to return
to work as of June 8, 2000. Accordingly, the deputy commissioner
entered the appropriate orders and quashed the show cause order
issued by the commission.
Washington appealed the deputy commissioner's determinations
that he was not entitled to benefits for the period after March
28, 2001 and that he was not entitled to the 20% penalty. After
reviewing the record, the full commission affirmed the deputy
commissioner's award finding that because Washington was given a
full release to return to work as of June 8, 2000, and because he
returned to his pre-injury work until March 28, 2001, he was not
entitled to benefits after June 8, 2000 and, thus, no penalty
should be assessed. The commission further held that Washington
was not entitled to benefits for the period after March 28, 2001
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because the condition for which he sought benefits was causally
unrelated to his work-related injuries.
II. Analysis
On appeal, Washington contends only that the commission erred
in refusing to grant him benefits under the open May 16, 2000
award and that the commission erred in refusing to assess the 20%
penalty against UPS for failing to pay him benefits consistent
with the award.
We first note that "[t]he commission's finding on [a] legal
question is not conclusive and binding upon us, but is properly
subject to judicial review." Goodyear Tire & Rubber Co. v.
Harris, 35 Va. App. 162, 168, 543 S.E.2d 619, 621 (2001).
Nevertheless, we give great weight to the commission's
interpretations of the Act. Peyton v. Williams, 206 Va. 595, 600,
145 S.E.2d 147, 151 (1965).
Washington correctly notes that "[a] decision of the
[commission] granting or denying, or changing or refusing to
change some benefit payable or allowable under the Workers'
Compensation Act" is final, "leaving nothing to be done except to
superintend ministerially the execution of the award." Jewell
Ridge Coal Corp. v. Henderson, 229 Va. 266, 269, 329 S.E.2d 48, 50
(1985).
Indeed, Code § 65.2-524 provides, in relevant part, that if
any payment so awarded,
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is not paid within two weeks after it
becomes due, there shall be added to such
unpaid compensation an amount equal to
twenty percent thereof, unless the
Commission finds that any required payment
has been made as promptly as practicable and
(i) there is good cause outside the control
of the employer for the delay or (ii) in the
case of a self-insured employer, the
employer has issued the required payment to
the employee as a part of the next regular
payroll after the payment becomes due. . . .
Further, commission Rule 1.4(C) requires an employer to pay
compensation through the date of filing a change of condition
application with the commission, unless "[t]he application
alleges the employee returned to work, in which case payment
shall be made to the date of return." Nevertheless, UPS never
filed a change of condition application with the commission
alleging that Washington had returned to work and requesting
termination of the May 16, 2000 award. Instead, UPS
unilaterally terminated its payment of benefits under the award
after Washington returned to work without restrictions.
As Washington correctly argues, we have held that neither
Code § 65.2-500, concerning the amount available to an employee
for total incapacity, nor Code § 65.2-708, concerning both an
employee's and employer's ability to file an application for
review of an award based upon an employee's change of condition,
"gives an employer the unilateral right to cease paying
compensation benefits to a . . . disabled employee under an
outstanding . . . award, when that employee returns to
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work . . . and the employer does not file an application or an
agreed statement of fact along with a supplemental memorandum of
agreement." Odin, Inc. v. Price, 23 Va. App. 66, 72, 474 S.E.2d
162, 165 (1996). 1 In fact, we have specifically recognized the
laudable purpose of commission Rule 1.4(C) as a method of policing
the "'tendency of employers and insurers to terminate first and
litigate later.'" Specialty Auto Body v. Cook, 14 Va. App. 327,
330, 416 S.E.2d 233, 235 (1992) (quoting Dillard v. Industrial
Comm'n, 416 U.S. 783, 789 (1974)).
However, we must consider this jurisprudence in context with
the principle that "[w]hen a worker does not suffer a loss of
wages, receipt of compensation benefits would unjustly enrich the
worker and result in manifest injustice. It is '"[n]either
logical, reasonable, [n]or within the spirit of the Act"' to award
benefits when a worker is not entitled to them." Lam v. Kawneer
Co., Inc., 38 Va. App. 515, 518, 566 S.E.2d 874, 875-76 (2002)
(citations omitted). Accordingly, we have held that:
[w]hile we do not condone the employer's
failure to file an application to terminate
the award . . . [, t]he equitable power of
the commission, as exemplified in the
doctrine of imposition, includes the power
to "'render decisions based on justice shown
by the total circumstances even though no
fraud, mistake or concealment has been
1
We note that, unlike Washington's case, in Odin, the
employer terminated benefits despite the fact that he had not
been given a full release to return to work and was, therefore,
still entitled to temporary partial disability benefits, as
found by the commission.
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shown.'" Odom v. Red Lobster #235, 20
Va. App. 228, 234, 456 S.E.2d 140, 143
(1995) (quoting Avon Prods. Inc. v. Ross, 14
Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)).
The purpose of the Act "'is to compensate
injured workers for lost wages, not to
enrich them unjustly.'" Collins [v. Dep't
of Alcoholic Beverage Comm.], 21 Va. App.
[671,] 678, 467 S.E.2d [279,] 282 (quoting
Harris [v. Diamond Const. Co.], 184 Va.
[711,] 717, 36 S.E.2d [573,] 576 [(1946),]
[aff'd en banc, 22 Va. App. 625, 472 S.E.2d
287 (1996)].
Lam, 38 Va. App. at 519-20, 566 S.E.2d at 876.
Here, as in Lam, Washington returned to work on June 9, 2000,
with no physical restrictions. He was not released from full-duty
work again, by a physician, until March 28, 2001, when Dr. Larson
released him from work for the third arthroscopic surgery, which
the commission found was causally unrelated to the injury upon
which the May 16, 2000 award was based. No evidence in the record
demonstrates that Washington made less than his pre-injury wage
during that time, nor that any of his physicians retracted his
full release to return to his pre-injury work for any reason
related to the injury upon which the award was based.
Furthermore, no evidence shows that UPS intentionally failed to
file the appropriate paperwork requesting termination of the
award, or that UPS possessed any ill intent in failing to do so.
Indeed, UPS presented testimony during the hearing before the
deputy commissioner stating that it had mailed Washington the
"termination of wage loss, the Agreed Statement of Fact" forms,
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after Washington returned to work in June of 2000, but they "never
got them back."
Therefore, as the commission found that Washington was no
longer entitled to benefits under the award after June 9, 2000, we
find no error in the commission's determination that no benefits
or penalty should be awarded.
Affirmed.
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