COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
REGINA BOSSONG BUTLER
OPINION BY
v. Record No. 1919-95-1 JUDGE ROSEMARIE ANNUNZIATA
JUNE 18, 1996
CITY OF VIRGINIA BEACH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph E. Lawrence for appellant.
Charles B. Miller, Assistant City Attorney
(Office of the City Attorney, on brief), for
appellee.
Claimant, Regina Bossong Butler, appeals the Workers'
Compensation Commission's refusal to vacate its award for
permanent partial disability benefits and to enter an award for
temporary total disability benefits. The permanent partial award
was made pursuant to a memorandum of agreement prepared at
claimant's request and signed by her, which terminated an earlier
temporary total disability benefits award in her favor. Finding
no error, we affirm.
The relevant facts are as follows. On February 2, 1988,
claimant suffered a compensable injury by accident while working
for employer, City of Virginia Beach. As a result, claimant
received benefits for temporary total disability. A June 11,
1991 report from Dr. Paul J. Abbott, Jr. states that claimant had
reached maximum medical improvement from her accident.
Thereafter, on June 20, 1991, claimant, through counsel, asserted
her right to compensation for permanent partial disability and
requested employer to prepare an agreed statement of fact and
supplemental memorandum of agreement. Employer prepared and
claimant executed the agreed statement of fact and supplemental
memorandum of agreement reflecting claimant's request for
permanent partial compensation. The agreed statement of fact
also provided that claimant's outstanding award for temporary
total disability was terminated, based on claimant having reached
maximum medical improvement on June 20, 1991.
Employer submitted the documents to the commission and, on
September 9, 1991, the commission, acting in accordance with the
agreed statement of fact, terminated temporary total disability
payments and entered an award for permanent partial disability
payments from June 20, 1991 until November 1, 1993. On November
2, 1993, claimant resumed temporary total disability benefits on
a continuing basis.
On November 29, 1994, claimant filed an application for
hearing asking that the commission's September 9, 1991 award for
permanent partial disability be vacated and claiming entitlement
to temporary total disability benefits for the period June 20,
1991 through November 2, 1993. The deputy commissioner refused
to vacate the September 9, 1991 award. The full commission
affirmed, finding no evidence of fraud, misrepresentation, or
mutual mistake. The commission further stated that it "was not
required to second guess claimant's counsel to determine whether
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the claimant was in fact no longer eligible for temporary total
disability benefits."
On appeal, claimant argues that this Court should vacate the
September 1991 award because: (1) benefits for permanent partial
loss can be paid only when benefits for temporary total
disability have ceased; (2) entry of the award was not in
claimant's best interest; (3) no evidence proved that she
intentionally and knowingly waived her right to temporary total
disability benefits; and (4) the agreed statement of fact which
prompted the award was incomplete. 1
I.
The commission's approval of a memorandum of agreement is
binding, and "an award of compensation entered upon such
agreement is as enforceable as an award entered in a contested
proceeding." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116,
121, 348 S.E.2d 416, 419 (1986); see also Code § 65.1-93 (now
Code § 65.2-701(A)). Application for full commission review of
an award must be made within twenty days of its entry. Code
§ 65.1-97 (now Code § 65.2-705(A)). Absent clear and convincing
evidence of fraud, misrepresentation, mutual mistake, or
imposition the commission has no authority to vacate an award
from which no party sought timely review. See Brushy Ridge Coal
Co. v. Blevins, 6 Va. App. 73, 80, 367 S.E.2d 204, 207 (1988);
1
The agreed statement of fact submitted to the
commission failed to indicate that claimant had returned to work
or that she was able to return to pre-injury work.
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Tucker, 3 Va. App. at 121, 348 S.E.2d at 419; K & L Trucking Co.
v Thurber, 1 Va. App. 213, 218, 337 S.E.2d 299, 302 (1985); John
Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697
(1985).
Here, claimant failed to seek timely review of the September
1991 award. Claimant contends, however, that the commission's
decision should be reversed based on the doctrine of imposition.
We disagree.
"[T]he concept known as `imposition' . . . empowers the
commission in appropriate cases 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 Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225,
228 (1992)). The doctrine empowers the commission "to `do full
and complete justice.'" Id. (quoting Avon, 14 Va. App. at 8, 415
S.E.2d at 229).
The doctrine focuses on an employer's or the commission's
use of superior knowledge of or experience with the Workers'
Compensation Act or use of economic leverage, which results in an
unjust deprivation to the employee of benefits warranted under
the Act. See Somers, 228 Va. at 734-35, 324 S.E.2d at 697; Odom,
20 Va. App. at 235, 456 S.E.2d at 143; Cheski v. Arlington County
Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993).
Thus, this Court has found that the doctrine applies where,
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inter alia, the record shows a series of acts by the employer or
the commission upon which a claimant naturally and reasonably
relies to his or her detriment. Odom, 20 Va. App. at 235, 456
S.E.2d at 143.
Claimant's argument based on imposition is without merit.
If the commission's actions created an imposition, it resulted
from claimant's own act. The agreed statement of fact
terminating her temporary total benefits and substituting
permanent partial benefits was drawn at the direction of
claimant's attorney and signed by claimant. Even if we accepted
claimant's position that the commission's September 1991 award
should not have been entered, any error on the part of the
commission was invited by claimant.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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