COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION* BY
v. Record No. 0086-99-1 JUDGE RICHARD S. BRAY
AUGUST 3, 1999
STEVEN J. LAWRENCE
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jonathan H. Walker (Mason & Mason, P.C., on
brief), for appellant.
No brief or argument for appellee.
Newport News Shipbuilding and Dry Dock Company (employer)
appeals a decision of the Virginia Workers’ Compensation
Commission (commission), complaining that the commission
erroneously awarded Steven J. Lawrence (claimant) total disability
benefits, while denying employer a credit against any future
compensation owed claimant under the Workers’ Compensation Act
(Act). Finding no error, we affirm the commission.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On February 23, 1987, claimant sustained a compensable injury
and was awarded benefits pursuant to the Act. Benefits were
thereafter continued for periods specified by subsequent orders of
the commission. On January 24, 1995, employer filed an
“application for hearing,” alleging that claimant failed to
cooperate in vocational rehabilitation and requesting a credit for
excessive compensation paid to claimant in error. 1 Following
related hearings, a deputy commissioner, by opinion dated February
24, 1998, denied employer relief, concluding that claimant did not
unjustifiably refuse vocational rehabilitation and that employer
was not entitled to credit for miscalculated benefits.
Employer moved to “reopen the record,” complaining in
pertinent part that the deputy had not addressed overpayments
resulting from “claimant’s selective employment, school attendance
and total disability due to [an] auto accident” while receiving
disability benefits, circumstances apparently disclosed during the
hearings. Accordingly, the deputy vacated the prior order,
reconsidered the evidence, and again decided that claimant did not
unjustifiably refuse vocational rehabilitation. However, the
deputy also determined that employer was entitled to a credit for
payments previously made to claimant pursuant to the Longshore and
1
Employer paid claimant 101 weeks of compensation, although
only entitled to 101 days, an overpayment of $17,401.11.
- 2 -
Harbor Workers’ Compensation Act (LHWCA) of $87,615.87,2 an amount
determined to exceed any further payments due claimant from
employer. The deputy did not award employer any credits for
payments wrongfully received by claimant while employed, attending
school or disabled by the alleged auto accident.
Claimant requested review by the full commission, complaining
that employer was incorrectly awarded a credit of $87,615.87 for
benefits under the LHWCA. Employer, however, did not request
review of the deputy’s decision, although denied credit for
payments made but allegedly not due claimant as a result of the
several intervening circumstances which disqualified him from
benefits.
Following review at claimant’s request, the full commission,
by opinion dated December 9, 1998, concluded that “the deputy
commissioner correctly found employer entitled to a credit for the
$17,401.11 mistaken overpayment . . . [and] for all amounts paid
to the claimant under the Longshore Act,” $70,214.76, a total of
$87,615.87, “to be deducted in a lump sum from accrued
compensation.” However, for reasons not in issue, the commission
reversed the finding that such credit “exceeded the employer’s
liability” to claimant. Employer appeals, arguing that the
commission “erroneously awarded [claimant] total disability
benefits when [he] was either working, a full time student or
2
This sum appears to also include an overpayment credit for
the miscalculated benefits.
- 3 -
totally disabled as a result of an automobile accident,” thereby
denying employer a proper “credit against any future compensation
owed [claimant].”
Rule 3.1 of the Rules of the Commission provides, inter alia,
that “[a] request for review of a decision or award of the
Commission . . . shall be filed by a party in writing with the
Clerk of the Commission within 20 days of the date of such
3
decision or award.” See Code §§ 65.2-704, -705. “The award of
the Commission, as provided in § 65.2-704, if not reviewed in due
time, . . . shall be conclusive and binding as to all questions of
fact.” Code § 65.2-706. “Decisions of a deputy commissioner that
are not reviewed by the full commission cannot be brought before
this Court.” Duncan v. ABF Freight System, Inc., 20 Va. App. 418,
422, 457 S.E.2d 424, 426 (1995) (citation omitted).
Here, employer did not request full commission review of the
deputy’s decision which failed to award it credit for payments
made to claimant during the alleged periods of his employment,
educational pursuits and unrelated disability. Thus, the denial
by the deputy of relief to employer for such payments was not
before the full commission on review. Hence, we may not now
3
To facilitate proper consideration by the commission, “[a]
request for review should assign as error specific findings of
fact and conclusions of law. Failure of a party to assign any
specific error in its request for review may be deemed by the
Commission to be a waiver of the party’s right to consideration
of that error.” Rule 3.1.
- 4 -
entertain error in the attendant decision of the commission for a
failure to address this issue. 4
Accordingly, we affirm the commission’s decision.
Affirmed.
4
The commission noted in its opinion that “[t]he record
indicates that the claimant has been employed at least partially
during the period of his open Award. The employer has not,
however, filed an Application for Hearing to suspend benefits on
this basis.”
- 5 -
Newport News Shipbuilding etc v. Steven J. Lawrence
Combined Opinion