COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
VIRGINIA INTERNATIONAL TERMINALS, INC.
v. Record No. 2573-94-1 OPINION
BY JUDGE JOSEPH E. BAKER
MELVIN C. MOORE, JR. MAY 14, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Susan B. Potter;
Vandeventer, Black, Meredith & Martin, on
brief), for appellant.
John H. Klein (Rutter & Montagna, on brief),
for appellee.
Virginia International Terminals, Inc. (employer) appeals
from the decision of the Workers' Compensation Commission
(commission) that affirmed the deputy commissioner's award of
benefits to Melvin C. Moore, Jr. (claimant). Employer presents
three questions: (1) whether there was sufficient evidence for
the commission to find that claimant was disabled as of September
1, 1990, and that he made reasonable efforts to market his
remaining work capacity; (2) whether claimant's claim is barred
by the statutes of limitations embodied in Code §§ 65.1-56 and
65.1-99; and (3) whether employer is entitled to a credit for the
total dollar amount paid under the Federal Longshore and Harbor
Workers' Compensation Act (LHWCA).
Claimant sustained a compensable injury on November 10, 1986
while working as a hustler driver for employer. A "hustler" is a
vehicle which moves cargo containers. Claimant fractured both
wrists as the result of a fall from a hustler vehicle. Claimant
made several unsuccessful attempts to return to his pre-injury
job and became a patient of Dr. Lawrence Morales, an orthopedic
surgeon, on May 4, 1987. Dr. Morales concluded that claimant
could not return to his job as a hustler driver but could do work
of a lighter nature. On May 5, 1988, claimant filed a claim with
the commission for the injury suffered in 1986. 1
On June 1, 1988, surgery was performed on claimant's right
wrist. On July 28, 1988, claimant was discharged from the care
of his surgeon, Dr. Theodore DuPuy, having received from him a
thirty-five percent permanent disability rating to his upper
extremity. From that date through August 31, 1990, claimant
received permanent partial disability benefits under the LHWCA,
as well as periods of temporary total disability (during surgery
in 1988 and 1993) under the LHWCA. Employer asserts it paid a
total of $128,578.60 under that act.
Sometime during 1991, claimant began looking for work.
Claimant could remember only that his search commenced during
warm weather. Vocational counselor Michael Hulen attempted to
assist claimant in job placement beginning July 31, 1991, and did
so unsuccessfully for three months, though claimant was
cooperative. Claimant offered into evidence a list of sixty-nine
employers with their respective phone numbers from which he
1
No hearing was held on this claim until February 10, 1994.
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sought employment. Claimant's application was dismissed without
prejudice by order entered May 8, 1992.
On June 7, 1993, surgery was performed on claimant's left
hand. Prior to this surgery, claimant was capable of performing
light-duty work with his right hand but not his left. Dr.
Morales, claimant's surgeon and treating physician, released
claimant, on September 21, 1993, to perform light and medium duty
work. He limited claimant from work "requiring repetitive
motions of both hands or both wrists such as assembly-type work,
heavy lifting, pushing, pulling, repetitive grasping, turning of
wrenches with different tools or instruments . . . ."
I. Claimant's Disability and Efforts to Market Work Capacity
Employer contends that there was insufficient evidence for
the commission to find that claimant was disabled as of September
1, 1990, when his benefits under the LHWCA were exhausted, and
that claimant failed to make reasonable efforts to market his
remaining capacity for work.
In reviewing the commission's decision, we are guided by
well-settled principles. A finding of fact made by the
commission which is supported by credible evidence is conclusive
and binding upon this Court. Fairfax Hosp. v. DeLaFleur, 221 Va.
406, 410, 270 S.E.2d 720, 722 (1980). "A question raised by
conflicting medical opinion is a question of fact." Commonwealth
v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "The
fact that there is contrary evidence in the record is of no
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consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
While Dr. DuPuy opined on several occasions that claimant
was capable of returning to his pre-injury employment, the
commission discounted his opinion, noting that it was not
apparent that Dr. DuPuy knew of the actual duties of a hustler
driver. The commission, instead, placed greater weight on the
opinion of claimant's treating physician, Dr. Morales, who, in
reaching his conclusion that claimant could not return to his
pre-injury employment, had visited claimant's work site and
handled a hustler vehicle. Dr. Curtis Spear, also an orthopedic
surgeon, who examined claimant at the request of claimant's
union, concurred in Dr. Morales's opinion. In addition, claimant
made several attempts to return to his former job but was unable
to continue because of pain in his hands and arm. See Sky Chefs,
Inc. v. Rogers, 222 Va. 800, 284 S.E.2d 605 (1981) (unsuccessful
attempts to return to pre-injury employment may be considered in
determining the extent of a claimant's disability). The opinions
of Drs. Morales and Spear and claimant's unsuccessful efforts at
returning to work provide credible evidence to support the
commission's finding that claimant's occupational injury kept him
from resuming his pre-injury work.
In order to receive continued benefits, a disabled employee
must prove that he made reasonable efforts to market his residual
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wage earning capacity. National Linen Serv. v. McGuinn, 8 Va.
App. 267, 269, 380 S.E.2d 31, 34 (1989). "In determining whether
a claimant has made a reasonable effort to market his remaining
work capacity, we view the evidence in the light most favorable
to . . . the prevailing party before the commission." Id. at
270, 380 S.E.2d at 33.
In reviewing the commission's determination concerning
claimant's efforts to market his work capacity, we note, as did
the commission, that claimant was cooperative with Mr. Hulen, the
rehabilitative counselor supplied by employer. However, Mr.
Hulen could not secure employment for claimant. Also, Dr.
Morales found claimant motivated to return to work. Though
claimant's list of employers from whom he sought employment is
not an extensive record for marketing efforts generally, the
commission observed that claimant can read and write at only a
second or third grade level. Given this record, credible
evidence supports the commission's finding that claimant's
marketing efforts were reasonable.
II. Statutes of Limitations
Employer argues that the statute of limitations under former
Code § 65.1-56, now Code § 65.2-501, bars claimant's claim. Code
§ 65.2-501, in pertinent part, reads as follows:
After compensation has been paid as
provided in § 65.2-503 [compensation for
permanent loss], the employee may, within one
year from the date compensation was last due
under this section, file an application for
incapacity to work . . . .
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(Emphasis added). Employer, noting that the commission affirmed
the deputy commissioner's April 1, 1994 award of seventy weeks of
permanent partial disability benefits, running from July 28, 1988
to November 29, 1989, reasons that November 29, 1990, one year
from the last date compensation was allowed, was the last day on
which claimant could seek compensation due to an incapacity to
work. The statute of limitations in Code § 65.2-501, however,
does not begin to run until compensation for permanent loss was
"last due" under Code § 65.2-503. Because compensation for
claimant's permanent loss did not become due under that code
section until his award was entered by the deputy commissioner on
April 1, 1994, claimant's claim was not time barred. The fact
that under the LHWCA compensation was last due on November 29,
1989 is of no import; only an award made under Code § 65.2-503
can trigger Code § 65.2-501.
Employer also raises the statute of limitations of former
Code § 65.1-99, now Code § 65.2-708. Code § 65.2-708(A) reads,
in pertinent part, as follows:
A. Upon its own motion or upon the
application of any party in interest, on the
ground of a change in condition, the
Commission may review any award and on such
review may make an award ending, diminishing
or increasing the compensation previously
awarded . . . . No such review shall be made
after twenty-four months from the last day
for which compensation was paid, pursuant to
an award under this title . . . .
(Emphasis added). This code section is inapplicable. Claimant's
March 25, 1993 application by letter of counsel did not allege a
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change in condition but was an initial request for temporary
total disability benefits. Under Code § 65.2-708, the commission
is empowered to "end[], diminish[] or increas[e] the compensation
previously awarded." (Emphasis added). Prior to April 1, 1994,
no award had been entered by the commission on claimant's behalf.
The award provided under the LHWCA is of no benefit to employer;
the two-year limitation on review provided for in Code § 65.2-708
applies only to awards made "under this title," with "this title"
referring to Title 65.2 -- the Virginia Workers' Compensation Act
(Virginia Act).
III. Credits for Benefits Paid Under the Longshore and
Harbor Workers' Compensation Act
A review of the Virginia Act clearly discloses the General
Assembly's intent that an injured employee not be awarded a
double recovery for a compensable injury; equally evident in the
Virginia Act is the General Assembly's intent that an employer
not be required to pay twice for an employee's injury. The
question presented here is whether under the facts of this case
the award made by the commission requires employer to pay twice
for claimant's compensable injury. We believe that it does.
Depending upon the circumstances, employees who are injured
while working as longshoremen may elect whether to first seek
workers' compensation benefits under the LHWCA or the Virginia
Act. Both the LHWCA and the Virginia Act provide compensation
for permanent injuries by ordering weekly payments for a stated
number of weeks, depending upon the extent of the permanent
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injury. We were advised at oral argument that this claimant
elected to pursue his claim for benefits under the LHWCA because
that act provides larger weekly payments for wages lost due to
injury, albeit for a lesser number of weeks. Thus, a
longshoreman has a choice between higher payments for a lesser
number of weeks under the LHWCA or lower payments for a greater
number of weeks under the Virginia Act.
Employer asserts that pursuant to the provisions of the
LHWCA, claimant was paid a total of $128,578 which includes
weekly wage-loss payments and payments for a 35% permanent
partial disability.
When claimant could no longer recover compensation payments
under the LHWCA, he requested a hearing pursuant to the
provisions of the Virginia Act. At the hearing before the deputy
commissioner, employer contended that it was entitled to a
dollar-for-dollar set off for amounts paid under the LHWCA
against any award made by the commission pursuant to the
provisions of the Virginia Act. The commission held that "the
employer is entitled to set off the number of weeks that benefits
were paid under LHWCA rather than the total amount . . . of
compensation paid under LHWCA." 2 Any weekly amounts employer
2
The deputy commissioner found that the total compensation
claimant was entitled to under the Virginia Act was $112,516.54.
Employer asserted before the commission that since it had paid
claimant more than that sum, any award to be made by the
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paid under the LHWCA which exceeded what was due under the
Virginia Act were not credited against employer's liability under
the Virginia Act.
When enacting the Virginia Act, the General Assembly
anticipated that compensation benefits might be paid to injured
employees other than those ordered by an award. Among the
provisions of the act addressing payments made other than by the
terms of the Virginia Act is Code § 65.2-520, entitled "Voluntary
payments by employer," which provides:
Any payments made by the employer to the
injured employee during the period of his
disability, or to his dependents, which by
the terms of this title were not due and
payable when made, may, subject to the
approval of the Commission, be deducted from
the amount to be paid as compensation
provided that, in the case of disability,
such deductions shall be made by shortening
the period during which compensation must be
paid and not by reducing the amount of the
weekly payment.
(Emphasis added). Subject to the approval of the commission, an
employer is entitled to a credit for any "voluntary payment" it
may have made to the employee. As defined by the statute, a
payment is "voluntary" if it was not "due and payable" by "the
terms of this title" when made. Thus, the disability payments
employer paid claimant under the LHWCA were "voluntary" because
when paid they were not "due and payable" under "the terms of"
commission had been satisfied, and it was due a credit of the
overage paid.
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the Virginia Act. Therefore, the amounts paid under the LHWCA
should have been deducted from employer's liability as determined
by the commission. The statute makes no exception to its
command, and its language directing that a credit be provided for
"any" voluntary payments indicates an intent to provide a credit
for all payments that fall within its classification of
"voluntary."
Both employer and the deputy commissioner cite Tiller v.
Long Homes, Inc., 228 Va. 343, 323 S.E.2d 71 (1984), as authority
for their respective positions. In Tiller, the Supreme Court
affirmed the commission's decision allowing the employer a credit
against the award. The facts in Tiller are not the same as in
the matter before us. The employer's overpayment in Tiller arose
from its own mistake; employer's overpayment in this case
resulted from payments made under the mandate of federal law. In
both cases, however, the overpayments were "voluntary" as defined
in the Virginia Act. A case more closely analogous to the one
before us is Evans v. AT&T Technologies, Inc., 332 N.C. 78, 418
S.E.2d 503 (1992). In Evans, the North Carolina Supreme Court
held that an employer is entitled to a full dollar-for-dollar
credit toward its workers' compensation liability for amounts
paid prior to an award pursuant to the employer's disability
plan.
We hold that the commission erred in concluding that
employer was not entitled to credit for the amount employer paid
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under the LHWCA that exceeded its obligation under the Virginia
Act.
Except as to the issue of credit, the decision of the
commission is affirmed. On the issue of credit for payments made
by employer under the LHWCA, the commission is reversed and the
case remanded. Upon remand, the commission shall determine the
amount paid by employer as compensation under the LHWCA, which
amount shall be set off against employer's liability under the
Virginia Act and credit shall be given to employer for the excess
amount paid against any future liability it may have to claimant
for the injury received.
Affirmed in part,
reversed in part,
and remanded.
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