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AWARDS AND SETTLEMENTS
See Modification of Final Orders
1999 Maximum and Minimum Compensation Rates. Effective July 1, 1999, the maximum rate is 567.00 weekly and the minimum rate is $141.75. The cost of living increase is 1.6%. Benefit calculation software is available (DOS Version) from Doug Singlemann, Data Processing Dept., VWC, 1000 DMV Drive, Richmond, VA 23220-2036. On September 1, 1999, a WIN 95/NT 4.0 version will be available--send a blank formatted diskette and a return self-addressed envelope with $1.01 postage and specify DOS or WIN 95/NT Version.
Because employer failed to timely solicit and file agreements for an accepted claim that would have resulted in an enforceable award from the Commission, courts will presume an award was entered to avoid giving the carrier an advantage by virtue of such neglect. Accordingly, the burden is on the employer to present grounds to show that the presumed award should be terminated. National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987). "Failure to promptly file memorandum of agreements is violative of the statute and frustrates a primary purpose behind the . . . Act -- to expedite the entry of awards in cases where the parties agree as to the compensability of the employee's injury." National Linen Serv. v. McGuinn, 5 Va. App. 265, 269, 362 S.E.2d 187, 189 (1987) (en banc).
The commission's approval of a memorandum of agreement is binding, and "an award of compensation entered upon such agreement is as enforceable as an award entered in a contested proceeding." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116,121, 348 S.E.2d 416, 419 (1986); see also Code Sec. 65.2-701(A).
The commission held in 1988 that "payment of wages to the employee based upon sick or annual leave may be credited to the employer under the provisions of Sec. 65.1-72 [now Code Sec. 65.2-520] when leave is reinstated." Dyson v. Commonwealth of Virginia Department of Transportation, 67 O.I.C. 237, 239 (1988). The construction afforded a statute by the public officials charged with its administration and enforcement is entitled to be given great weight by a court. The legislature is presumed to be cognizant of such construction. When it has long continued without change, the legislature is presumed to have acquiesced therein. Watford v. Colonial Williamsburg Found., 13 Va. App. 501, 505, 413 S.E.2d 69, 71-72 (1992).
Contrary to claimant’s assertions, the plain language of Code Sec. 65.2-520 does not require that an employer seek approval from the commission before taking a credit for voluntary payments made to a claimant. Moreover, as the commission correctly found, claimant would have been unjustly enriched with a double recovery if employer was denied its right to take the credit. Under the circumstances of this case, "'[i]mposition' . . . empower[ed] the commission . . . to render [a decision] based on justice shown by the total circumstances even though no fraud, mistake or concealment [was] shown." Avon Prods., Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992).
While it is clear that an overpayment was made, the mistake was unilateral on the part of the employer. The commission found that by commingling claimant's workers' compensation benefits and his total disability payments, the employer made the mistake in such a manner that claimant could not have recognized the error. The commission recognized that workers' compensation is designed to be compensatory and should not provide a windfall to the injured employee. Nonetheless, the commission found that allowing an offset to employer for its own mistake in this case would not be equitable. Claimant did not recognize the error while it was being made, and thus could not have planned for a decrease in his current payments to make up for the mistake. The commission found that allowing that offset would unnecessarily and improperly punish claimant. Code Sec. 65.2-520 permits recoupment by an employer of voluntary excess payments with the approval of the commission. Under the circumstances of this case, the court could not say that the commission abused its discretion in denying approval for recoupment or offset. Walter Everett Childress, Jr. v. Appalachian Power Company, Record No. 0881-98-3 (December 22, 1998).
The commission ruled that it has "the power and authority not only to make and enforce its awards, but to protect itself and its awards from fraud, imposition and mistake." Collins v. Dept. of Alcoholic Beverage Comm., 21 Va. App. 673, 679-80, 467 S.E.2d 279, 282 (1996).
Compromise settlement agreements are not binding until approved by the commission. See Code Sec. 65.2-701(A). The code provides that when a claimant and employer have reached a settlement agreement and filed a memorandum of the agreement with the commission for approval, the agreement is binding if the commission approves it. The agreement is not binding until the commission approves it, and either party may withdraw its offer to settle before approval. See Brickell v. Virginia State Police Dep't, No. 150-35-39 (Va. Workers' Comp. Comm'n, Dec. 19, 1994) (agreement is neither final nor enforceable until approved by the commission). The code contains no exception to the basic provision that an agreement becomes binding when the commission approves it. After claimant and the carrier agreed to a settlement, the claimant died of unrelated causes and the carrier withdrew its settlement offer before approval by the commission. Although the claimant died, the carrier had every right to withdraw its consent before approval made it a binding agreement. The plain wording of the statute permitted this action, and it contemplates no exception if the claimant should die in the interim between agreement and approval. Phil Damewood, Administrator of the Estate of Teddy D. Damewood v. Lanford Brothers Company, Record No. 0901-98-3 (January 26, 1999).
Sovran Financial Corp. v. Nanney, 12 Va. App. 1156, 408 S.E.2d 266 (1991), the commission had approved a settlement between the claimant and the carrier. Claimant's attorney petitioned for review of the approval within twenty days of the approval. The Court of Appeals held that the commission could review an approved agreement if a petition to review was filed within twenty days. The petition did not require a claim of fraud or mistake. See id. at1159, 408 S.E.2d at 268 (citing Harris v. Diamond Constr. Co.,184 Va. 711, 721, 36 S.E.2d 573, 578 (1946)).
The commission properly refused to hold employer liable to reimburse claimant for interest, i.e., finance charges, and other "out-of-pocket" costs associated with pursuing his claim. The Workers' Compensation Act does not provide any basis for an award of such costs. Charles Francis Carter v. Arlington Co. Fire Dpt., Record No. 2394-98-4 (April 20, 1999). WP Version.
The voluntary payment of compensation benefits to claimant for more than two years by the employer and its insurer did not constitute a de facto award. Employer voluntarily paid compensation benefits to claimant from November 29, 1995 through February 1998, but did not file a Memorandum of Agreement with the commission. On December 12, 1997, claimant filed a Claim for Benefits related to the November 29, 1995 incident. At the hearing, employer defended against the claim on the ground that claimant did not sustain a compensable injury by accident arising out of and in the course of her employment. Based upon this record, we find that the commission did not err in ruling that a de facto award did not exist and that "employer defended the compensability of this claim in good faith, and that the employer's voluntary payment of benefits [did] not prevent it from contesting the compensability of the underlying claim." Here, employer did nothing more than make voluntary payments to claimant. "An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), and City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App., Dec. 19, 1995) are distinguishable. In McGuinn, unlike this case, the employer stipulated to the compensability of the claim. McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190. Then, after accepting the claim as compensable, National Linen defended solely on the ground that claimant failed to market his residual work capacity. See id. at 268, 362 S.E.2d at 188. In this case, employer never accepted the claim as compensable, and in fact, challenged the compensability of the claim at the hearing. In Anderson, unlike this case, the employer accepted the claimant's condition as compensable before it stopped paying compensation benefits and challenged the causal relationship between the claimant's disability and his employment. Terri Lee Robinson v. Olan Mills, Record No. 0839-99-3 (September 7, 1999). WP Version.
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