COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
TRACEY ANN LARKIN
MEMORANDUM OPINION* BY
v. Record No. 1992-01-1 JUDGE RICHARD S. BRAY
FEBRUARY 26, 2002
HOLIDAY INN EXECUTIVE CENTER AND
HARTFORD ACCIDENT & INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Jean M. McKeen;
Rutter, Walsh, Mills & Rutter, L.L.P., on
brief), for appellant.
Adam S. Rafal (R. John Barrett; Vandeventer
Black, LLP, on brief), for appellees.
Tracey Ann Larkin (claimant) appeals the decision of the
Workers' Compensation Commission (commission) awarding Holiday
Inn Executive Center (employer) and Hartford Accident &
Indemnity Company (carrier) an overpayment credit for benefits
mistakenly paid to claimant. Claimant contends the commission
erroneously (1) relied upon carrier's ledger system to calculate
the amount of overpayment, and (2) allowed recoupment of an
overpayment that resulted from carrier's unilateral mistake.
Finding no error, we affirm the commission.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. We consider the evidence in the
light most favorable to the prevailing party below, employer in
this instance. See R.G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
I.
On August 2, 1991, claimant sustained a work-related injury
by accident. Employer accepted the resulting claim, and
benefits for numerous periods of disabilities were subsequently
awarded by the commission. On June 30, 1999, carrier filed an
"Application for Hearing" with the commission alleging an
increase in claimant's earnings and seeking attendant
modification of the outstanding award and related "credits."
Claimant did not contest a reduction of the award but disputed
carrier's entitlement to credits. By opinion dated September 7,
1999, a deputy commissioner reduced the award but ordered
carrier to pay claimant $810.18 in "past due" benefits, plus a
twenty percent penalty.
By letter dated September 9, 1999, carrier requested the
deputy to reconsider. Alleging that "additional drafts in the
amounts of $24,655.40 and $3,326.83 were issued to the claimant"
by mistake, carrier moved the commission to direct claimant to
"return those sums immediately" and sought a "protective order"
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preventing expenditure of the funds in the interim. 1 The deputy
denied relief, and carrier appealed to the full commission.
Upon review, the commission remanded the dispute to the deputy
for "determination of the amounts due and owing . . . claimant
under the outstanding Award, including any interest and
penalties that may have accrued," specifically directing the
deputy "to calculate the total amount of compensation paid . . .
claimant through September 2, 1999, . . . and to make any
appropriate findings based on the evidence."
On March 8, 2000, the deputy conducted a further hearing on
remand. Carrier introduced into evidence a "stack" of checks
purporting to establish benefits paid to and received by
claimant. Alice Pleasant, carrier's "Claims Service
Representative" responsible for the disbursement of benefits to
claimant, testified that "a record of every check . . . issued
on [claimant's] file" was documented in the "payment activity
log," also in evidence. Pleasant confirmed that, on June 30,
1999, she had erroneously issued two checks to claimant totaling
$27,982.23. Upon discovery of the mistake, Pleasant had
immediately contacted claimant and her counsel, but the funds
were not returned to carrier.
1
Claimant did not dispute the deputy's original ruling and
objected to carrier's motion, although she expressly
acknowledged "the Commission can . . . issue a credit for the
amount of any established overpayment upon application by the
employer and carrier for such credit."
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By opinion dated October 11, 2000, the deputy found
from the evidence presented that the carrier
paid benefits totaling $57,197.46 for the
period in question. . . . This is evident
from payment logs kept by Ms. Pleasant. The
parties have agreed that the claimant was
owed $27,467.91 for this period. . . .
Thus, we find that there has been an
overpayment in the amount of $29,729.55.
Claimant requested review by the full commission, challenging
"the computations made by the [d]eputy [c]ommissioner in
determining the amount of overpayment" and contending carrier
"is not entitled to a credit for a unilateral overpayment,
whatever the amount, which is entirely its error."
Upon review, the commission, by opinion dated June 25,
2001, determined "the record does not support the [d]eputy
[c]ommissioner's conclusion that the parties stipulated that the
claimant was due $27,467.91." Finding "the [d]eputy
[c]ommissioner failed to calculate the amount due" in accordance
with the remand order, the commission computed "claimant was due
$27,467.91 plus an additional $1024.68 . . . , [but] was paid
$57,197.46." Accordingly, the commission awarded employer "a
credit in the amount of the overpayment, $28,704.87." To
provide recoupment to carrier, the commission ordered reduction
of "the amount of claimant's weekly payment by one-fourth, . . .
$27.00 each week," pursuant to Code § 65.2-520. Claimant
appeals to this Court.
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II.
Claimant first contends the commission's "fact finding"
erroneously "accept[ed] the ledger of the [carrier] . . . where
the cross-examination . . . clearly established that multiple
and repeated uncorrected and unexplained errors were made in the
log."
Factual findings by the commission supported by credible
evidence are conclusive and binding upon this Court. Rose v.
Red's Hitch & Trailer Serv., Inc., 11 Va. App. 55, 60, 396
S.E.2d 392, 395 (1990). "In determining whether credible
evidence exists, [this Court will] not retry the facts, reweigh
the preponderance of the evidence, or make its own determination
of the credibility of the witnesses." Wagner Enterprises, Inc.
v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
In adjudicating claimant's appeal, the commission concluded
that
claimant had the opportunity at the hearing
to challenge the accuracy of the carrier's
records and cross-examined Alice Pleasant.
The claimant presented no factual evidence
that refuted Pleasant's testimony or
impeached the accuracy of the carrier's
ledger system. The Deputy Commissioner
correctly found that any reference to
payment or permanent partial disability was
irrelevant to the period in question.
Pleasant also adequately explained the
errors and showed how the errors were
corrected by subsequent checks.
Thus, the commission relied upon the ledgers, together with the
testimony of Pleasant and related evidence, to establish an
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overpayment credit due carrier, a factual finding supported by
the record.
III.
Claimant next complains the commission erroneously
permitted carrier to recover an overpayment that resulted from
carrier's "unilateral mistake."
Code § 65.2-520 provides, in pertinent part, that
[a]ny 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 reducing
the amount of the weekly payment in the
amount not to exceed one-fourth of the
amount of the weekly payment for as long as
is necessary for the employer to recover his
voluntary payment.
In Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 470
S.E.2d 574 (1996), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997), we
determined "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."
Id. at 405, 470 S.E.2d at 578-79.
Here, the overpayments were properly deemed "voluntary" by
the commission because, when paid and received, the monies were
not "due and payable" to claimant under "the terms of" the
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Workers' Compensation Act. See Code § 65.2-520. Thus, carrier
is entitled to recoupment, and the commission properly
"reduc[ed] the amount of claimant's weekly payment by
one-fourth" 2 pursuant to Code § 65.2-520.
Accordingly, the commission correctly calculated the
overpayments in issue and ordered a recovery in accordance with
statute, and we affirm the decision.
Affirmed.
2
In distinguishing the instant record from an unpublished
opinion of this Court cited by claimant, the commission found
the overpayment error in issue here was "obvious" to claimant,
known by her when the "checks were sent" and, therefore, not a
"unilateral" mistake.
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