COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
DANNY LEONARD LAM
OPINION BY
v. Record No. 3158-01-4 JUDGE RUDOLPH BUMGARDNER, III
JULY 30, 2002
KAWNEER COMPANY, INC. AND
PACIFIC EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathleen G. Walsh for appellant.
Charles F. Midkiff (Midkiff, Muncie & Ross,
P.C., on brief), for appellees.
Danny Leonard Lam appeals a decision of the Workers'
Compensation Commission permitting the employer to terminate
benefits without filing an application and refusing to impose a
penalty for not paying the benefits. Finding no error, we
affirm.
The worker sustained an injury on February 23, 1988 for
which he received compensation until April 11, 1994. The
employer ceased paying benefits at that time because it received
a letter from the worker stating that he had begun working at a
wage greater 1 than his pre-injury wage. By letter dated June 13,
1
The letter stated the worker had returned to work as a
truck driver but indicated, incorrectly, a wage which was below
his pre-injury wage. The letter also incorrectly gave the date
of employment as March 1993. The parties have stipulated
throughout these proceedings that the worker was employed and
1994, the insurer requested the worker to provide the name of
his current employer, the date he started working, and copies of
his pay stubs. The worker did not respond.
The commission sent form letters annually noting an
outstanding award and directing, "if payments have ceased, an
executed Agreed Statement of Fact or an Employer's Application
for Hearing must be filed to end the Award." The insurer did
not respond to the commission's letters, but it wrote the
worker's counsel on July 27, 1995 acknowledging the worker's
return to work and requesting, "please contact me so that we may
discuss terminating the outstanding award."
On September 20, 1999, the commission wrote the insurer to
inform that the worker "had now received the maximum 500 weeks
for compensation benefits" and requested the total amount of
compensation the employer paid to him. The insurer responded
that it had paid $58,871.40. The commission then advised the
employer had underpaid by $58,049.30. On June 7, 2000, the
worker asserted this claim for compensation from April 11, 1994
through December 31, 1997 and imposition of the 20% penalty for
non-payment. 2
earned wages higher than his pre-injury wages at all times after
April 11, 1994.
2
Code § 65.2-524 provides in part, "If any payment 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 . . . ."
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The deputy commissioner denied the claim, and the full
commission affirmed under its general equitable power to do full
and complete justice. The worker contends he is entitled to the
unpaid benefits because the insurer failed to file an
application to terminate the award and unilaterally ceased
making payments. We conclude that the commission properly
exercised its authority.
When 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. Collins v.
Dep't of Alcoholic Beverage Comm., 21 Va. App. 671, 680, 467
S.E.2d 279, 283 (quoting Harris v. Diamond Contr. Co., 184 Va.
711, 720, 36 S.E.2d 573, 577 (1946)), aff'd en banc, 22 Va. App.
625, 472 S.E.2d 287 (1996). The commission has applied this
principle in Goodman v. Tricorp, Inc., 01 WC UNP 1702161 (July
23, 2001) (worker barred from receiving windfall even though
employer failed to properly terminate award), and in Kline v.
Newport News Shipbuilding, 00 WC UNP 1706454 (May 9, 2000)
(benefits denied when "the occurrence of some mistake or unfair
conduct . . . would render strict application of the Act
unjust"). Interpretations of the act by the commission are
entitled to great weight. Peyton v. Williams, 206 Va. 595, 600,
145 S.E.2d 147, 151 (1965).
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The worker returned to work April 11, 1994 and remained
continuously employed at a wage greater than his pre-injury
wage. He did not provide the insurer with the necessary details
of his change in employment, identify his new employer, or
provide salary information or residential address changes when
the insurer requested the information. The worker did not
dispute that he neglected to comply with the notice requirements
of Code § 65.2-712. He testified he did not think he needed to
provide that information because he was not asking the insurer
"to make up the difference." The worker sought to enforce the
award six years after he last received a compensation payment
when he received the commission's letter indicating that the
employer had underpaid the award by more than $58,000.
While we do not condone the employer's failure to file an
application to terminate the award, 3 we note the full commission
found, "[t]here is no evidence . . . that the employer has
flaunted the Commission requirements that it file a memoranda
when accepting the claim." The equitable power of the
commission, as exemplified in the doctrine of imposition,
3
The employer was unsuccessful in its attempts to get
documentation from the worker. An application for the
termination of benefits must be based on documentation
"sufficient to support a finding of probable cause to believe
[his] . . . grounds for relief are meritorious." Circuit City
Stores, Inc. v. Scotece, 28 Va. App. 383, 386, 504 S.E.2d 881,
883 (1998) (footnote and citations omitted).
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includes the power to "'render decisions based on justice shown
by the total circumstances even though no fraud, mistake or
concealment has been 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,
21 Va. App. at 678, 467 S.E.2d at 282 (quoting Harris, 184 Va.
at 717, 36 S.E.2d at 576).
Because the worker was not entitled to benefits, no penalty
was applicable. Accordingly, we affirm the commission.
Affirmed.
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