Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice
MELVIN C. MOORE, JR.
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 961500
June 6, 1997
VIRGINIA INTERNATIONAL TERMINALS, INC.
FROM THE COURT OF APPEALS OF VIRGINIA
The sole issue in this appeal is whether the Court of
Appeals erred in ruling that Code § 65.2-520 (a part of the
Virginia Workers' Compensation Act, Code § 65.2-100 et seq. (the
Virginia Act)) grants an employer a "dollar-for-dollar," as
opposed to a "week-for-week," credit for benefits paid to an
injured employee under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. § 901 et seq. (the Longshore Act),
which exceeded the employer's obligations under the Virginia Act.
The facts are undisputed. On November 10, 1986, Melvin C.
Moore, Jr., sustained injuries to both wrists while working as a
longshoreman with Virginia International Terminals, Inc. (VIT).
It is conceded that Moore's injury was compensable under both the
Longshore Act and the Virginia Act.
Moore initially sought disability benefits under the
Longshore Act. As a result of his injuries, Moore received
temporary total disability benefits under the Longshore Act from
November 11, 1986, through April 7, 1987; from April 14, 1987,
through November 22, 1987; and from November 25, 1987, through
February 15, 1988. Moore also received temporary partial
disability benefits from February 16, 1988, through April 17,
1988; temporary total disability benefits from April 18, 1988,
through July 27, 1988; and permanent partial disability benefits
from July 28, 1988, through August 31, 1990. In addition, Moore
received temporary total disability benefits from June 7, 1993,
through October 11, 1993.
On May 5, 1988, while receiving temporary total disability
benefits under the Longshore Act, Moore filed an application for
benefits with the Virginia Workers' Compensation Commission (the
Commission). Moore sought temporary total disability benefits
beginning September 1, 1990.
The parties stipulated that VIT was entitled to a credit for
compensation it paid to Moore under the Longshore Act during the
periods of Moore's disability through November 19, 1989, and from
June 7, 1993, to August 18, 1993. The parties disagreed,
however, regarding the method of calculating the credit pursuant
to Code § 65.2-520.
VIT paid a total of $128,578.60 to Moore under the Longshore
Act, and it contended that it is entitled to a "dollar-for-
dollar" credit in the amount of $16,062.06; i.e., that portion of
the sum it paid which exceeds its obligation under the Virginia
Act. Moore contended, on the other hand, that VIT is entitled to
credit on a "week-for-week" basis, whereby credit is awarded
based upon the number of weeks during which benefits were paid by
VIT under the Longshore Act.
The Commission, affirming its Deputy Commissioner, adopted
Moore's "week-for-week" contention. Specifically, the Commission
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held that VIT "is entitled to set off the number of weeks that
benefits were paid under [the Longshore Act] rather than the
total amount . . . of compensation paid under [the Longshore
Act]." Thus, any weekly amounts VIT paid to Moore under the
Longshore Act which exceeded what was due under the Virginia Act
were not credited against VIT's liability under the Virginia Act.
The Court of Appeals reversed that part of the Commission's
order relating to the amount of the credit. The Court held that
"the [C]ommission erred in concluding that [VIT] was not entitled
to credit for the amount [VIT] paid under the [Longshore Act]
that exceeded its obligation under the Virginia Act." Virginia
Intern. Terminals v. Moore, 22 Va. App. 396, 405-06, 470 S.E.2d
574, 579 (1996). We awarded Moore an appeal, having determined
that the Court of Appeals' decision involves a matter of
significant precedential value. Code § 17-116.07(B).
Where, as here, a worker is covered by both the federal
Longshore Act and a state workers' compensation statute,
concurrent jurisdiction exists, and the injured worker may
proceed under either or both statutes. The claimant, however, is
entitled to only a single recovery for his injuries. Calbeck v.
Travelers Ins. Co., 370 U.S. 114, 131 (1962); accord American
Foods v. Ford, 221 Va. 557, 561, 272 S.E.2d 187, 190 (1980).
In Calbeck, an employer contended that its employee's
acceptance of benefits under a state compensation act constituted
an election of remedies which barred prosecution of his claim
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under the Longshore Act. The Supreme Court held that the injured
employee's acceptance of state disability benefits did not
constitute an election of remedies under state law that would
preclude recovery under the Longshore Act. In so holding, the
Supreme Court noted that, in the commissioner's order directing
payment of compensation under the Longshore Act, "the full amount
of all payments made by the employer [under the state act] was
credited against the [Longshore Act] award, and no impermissible
double recovery is possible." 370 U.S. at 131. Consistent with
Calbeck, the Supreme Court, in Sun Ship, Inc. v. Pennsylvania,
447 U.S. 715, 725 n.8 (1980), concluded that "there is no danger
of double recovery under concurrent jurisdiction since employers'
awards under one compensation scheme would be credited against
any recovery under the second scheme."
In American Foods, we considered the issue of concurrent
jurisdiction and stated that "both the federal and the state
governments are constitutionally competent to provide [workers']
compensation remedies to [workers] who are killed or injured on
navigable waters in Virginia." 221 Va. at 561, 272 S.E.2d at
190. We also stated that "[d]ouble recovery under concurrent
jurisdiction will not be allowed, because an employer receives
credit for prior state compensation awards in any subsequent
award under [the Longshore Act]." Id.
The Code section at issue in the present case, Code § 65.2-
520, entitled "Voluntary payment by employer," reads as follows:
Any payments made by the employer to the injured
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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.)
We think, in enacting Code § 65.2-520, the General Assembly
intended that an employer should be given a "dollar-for-dollar"
credit. Indeed, the statute states that "[a]ny payments . . .
may . . . be deducted from the amount to be paid as
compensation." Payments are made in dollars, and compensation is
paid in dollars. Any other reading of Code § 65.2-520 would
allow a double recovery by an injured employee, and, as we said
in American Foods, "[d]ouble recovery under concurrent
jurisdiction will not be allowed." 221 Va. at 561, 272 S.E.2d at
190. Moreover, had the General Assembly intended a "week-for-
week" credit, the directive against "reducing the amount of the
weekly payment" would have been unnecessary.
Moore correctly points out that the Commission in a number
of cases has uniformly interpreted and applied the credit
provision of Code § 65.2-520 "to provide for credit measured by
the period of disability and corresponding payments, as opposed
to offsetting the total dollar amount paid against the dollar
amount to which the claimant would otherwise be entitled under
the Virginia Act." Moore also correctly states that "[a] basic
tenet of interpretation and application of the Virginia Act is
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that the construction given to the Act by the . . . Commission is
to be accorded great weight." Nevertheless, when the
Commission's interpretation of a statute runs counter to what we
perceive to be the clear intent of the General Assembly as well
as our decisions, the former must yield. This is such a case.
Accordingly, we will affirm the judgment of the Court of
Appeals. In accordance with the Court of Appeals' opinion, the
case will be remanded to the Court of Appeals, with direction
that it remand the case to the Commission for a determination
consistent with this opinion.
Affirmed.
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