COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
JOSEPH LUTHER SLEMP
MEMORANDUM OPINION *
v. Record No. 1808-97-3 PER CURIAM
JANUARY 27, 1998
TRAY COAL PROCESSORS AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gregory R. Herrell; Arrington, Schelin &
Herrell, on brief), for appellant.
(Monica L. Taylor; Gentry, Locke, Rakes &
Moore, on brief), for appellees.
Joseph Luther Slemp (claimant) contends that the Workers'
Compensation Commission erred in granting Tray Coal Processors'
(employer) application to amend claimant's average weekly wage
based upon a mutual mistake of fact. Upon reviewing the record
and the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
On April 11, 1996, claimant, president and co-owner of
employer's business, sustained a compensable back injury. On
April 26, 1996, Gary Mitchell, employer's vice president,
prepared an Employer's First Report of Accident, reflecting an
average weekly wage of $1,050. On May 3, 1996, Leah Epling,
employer's insurance adjuster, received a copy of that report.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On May 6, 1996, Epling took claimant's recorded statement. In
that statement, claimant told Epling that employer paid him
bi-weekly and that his salary fluctuated "depending on what the
checking will allow." On July 19, 1996, the commission entered
an award in favor of claimant. The commission awarded
compensation based upon a Memorandum of Agreement executed by
claimant on May 29, 1996, by Epling on July 5, 1996, and filed
with the commission on July 9, 1996. The Memorandum of Agreement
indicated a pre-injury average weekly wage of $1,050.
On August 1, 1996, Epling mailed a wage chart to Mitchell
for him to complete regarding the wages earned by claimant during
the fifty-two week period preceding his injury. On September 24,
1996, Epling received information from Mitchell indicating that
claimant, a corporate officer, had not been paid wages during the
fifty-two week period prior to his injury and that employer would
not pay claimant a salary until economic conditions improved. As
a result of receiving this information, employer's insurance
carrier filed an application with the commission on October 28,
1996, requesting that the commission amend claimant's average
weekly wage.
In granting employer's application, the commission found as
follows:
We find that the Deputy Commissioner did not
err in determining that a mutual mistake of
fact led to the erroneous calculation of the
average weekly wage based on 1994 earnings.
We further reject claimant's contention that
the carrier took a lackadaisical approach to
this claim. On the contrary, the evidence
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reveals that Ms. Epling undertook a prompt
investigation of the claim and reasonably
relied on the information she received from
the employer and the claimant regarding the
claimant's salary.
"'[T]he purpose of the Workers' Compensation Act is to
compensate injured workers for lost wages, not to enrich them
unjustly.'" Collins v. Dept. of Alcoholic Beverage Control, 21
Va. App. 671, 678, 467 S.E.2d 279, 282 (1996). The General
Assembly has granted "the Commission the power and authority not
only to make and enforce its awards, but protect itself and its
awards from fraud, imposition, and mistake." Id. at 679-80, 467
S.E.2d at 283.
In this case, the record established that the parties made a
significant mutual mistake of fact in paying compensation
benefits to claimant pursuant to their executed agreement. To
determine whether a mutual mistake occurred, we inquire "whether
each party held the same mistaken belief with respect to a
material fact at the time . . . [the payments were made and
received]." Id. at 681, 467 S.E.2d at 283. In this case, Epling
acted under the mistaken belief that employer had paid claimant
an average weekly wage of $1,050 during the fifty-two week period
preceding his accident, and employer and claimant acted under the
mistaken belief that claimant was entitled to receive
compensation benefits based upon an average weekly wage of
$1,050. The mistake was mutual.
As we stated in Collins, "[w]ithin the principles
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established by statutes and the Supreme Court decisions, the
commission has '"jurisdiction to do full and complete justice in
each case."' Justice is not attained by failing to correct
obvious mistakes or declining to place the parties in positions
which are in accord with the Act." Id. at 681, 467 S.E.2d 283-84
(citations omitted).
Accordingly, we affirm the commission's decision amending
its award to reflect claimant's status as an unpaid corporate
officer at the time of his injury.
Affirmed.
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