dissenting.
The employer paid McGuinn compensation for disability for thirteen months without filing a Memorandum of Agreement. Code § 65.1-93, which requires voluntary agreements regarding compensation to be filed with the Commission, provides in pertinent part as follows:
If after injury or death, the employer and the injured employee or his dependents reach an agreement in regard to compensation or in compromise of a claim for compensation under this Act, a memorandum of the agreement in the form prescribed by the Industrial Commission shall be filed with the Commission for approval (emphasis added).
I believe that the Commission correctly concluded that “it is reasonable to infer that the parties had reached an agreement as to the payment of compensation since the payments had been made for thirteen months and there was no issue raised as to the compensability of the . . . [injury].” Furthermore, the Commission stated and the majority opinion agrees that:
*79If an agreement had been executed in this case, the claimant would have been placed under an Award, and the burden of proof would have shifted to the carrier to establish a change in condition which would have required evidence that the employee is either able to return to his regular employment or had been offered or provided selective employment within his capacity.
See also J.A. Foust Coal Co. v. Messer, 195 Va. 762, 765, 80 S.E.2d 533, 535 (1954).
The record supports the Commission’s finding that McGuinn reasonably believed that he was still entitled to compensation in view of the fact that the employer had paid compensation for a period of thirteen months without executing a Memorandum of Agreement.
I believe that the Commission correctly determined that the employer’s failure to file a “memorandum of the agreement” as required by Code § 65.1-93, its payment of compensation to the claimant for thirteen months, its failure to offer selective employment to McGuinn, and its failure to contest the compensability of the injury cannot put the employer in a better position than it would have been in had it followed the requirements of Code § 65.1-93.
I further believe that Washington Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 324 S.E.2d 654 (1985) is not applicable to the circumstances of this case. There was no allegation in Harrison that there was a violation of Code § 65.1-93. Furthermore, the employer in Harrison offered the claimant selective employment commensurate with his remaining work capacity, and the claimant accepted the work until terminated for economic reasons, eliminating any possibility that the claimant could have reasonably believed that he was entitled to total disability compensation.
For these reasons I would affirm the Commission’s award.