Where 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): "[d]ouble recovery under concurrent jurisdiction will not be allowed." 221 Va. at 561, 272 S.E.2d at 190. An employer is entitled to 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. Sec. 901 et seq. (the Longshore Act), which exceeded the employer's obligations under the Virginia Act. Melvin C. Moore, Jr. v. Virginia International Terminals, Inc., Record No. 961500 (Va. S.Ct. June 6, 1997).
In Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 470 S.E.2d 574 (1996), the Court of Appeals held: Subject to the approval of the commission, an employer is entitled to a credit for any "voluntary payment" it may have made to the employee. As defined by the statute, a payment is "voluntary" if it was not "due and payable" by "the terms of this title" when made. Thus, the disability payments employer paid claimant under the LHWCA were "voluntary" because when paid they were not "due and payable" under "the terms of" the Virginia Act. Therefore, the amounts paid under the LHWCA should have been deducted from employer's liability as determined by the commission. The statute makes no exception to its command, and its language directing that a credit be provided for "any" voluntary payments indicates an intent to provide a credit for all payments that fall within its classification of "voluntary. "Id. at 405, 470 S.E.2d at 578-79. The amounts paid by employer under the LHWCA should therefore be set off against "any future liability it may have to claimant for the injury received, "regardless of the classification of the disability. Id. at 406,470 S.E.2d at 579. Ceres Marine Terminals, Inc. and AETNA Casualty & Surety Co. v. Anita Artis, Record No. 1868-96-1 (February 18, 1997); Ceres Marine Terminals, Inc. v. Anthony E. Ward, Record No. 0074-97-1 (September 23, 1997).
Claimant received a permanent partial disability rating for his left leg, which entitled him to 144 weeks of compensation under the LHWCA and 87.5 weeks of compensation under the Virginia Workers' Compensation Act, a difference of 56.5 weeks. The employer paid the 144 weeks of permanent partial disability benefits under the LHWCA from May 3, 1995 through January 19, 1998. In the meantime, the commission affirmed the deputy commissioner's award of temporary total disability benefits under the Act beginning April 1, 1997. The award stated that the employer would receive credit for any payments it made pursuant to the LHWCA. The employer took its credit by reducing the weekly payment to zero for 56.5 weeks. Only at the conclusion of the 56.5 weeks, did the employer begin weekly payments to appellant. The Court of Appeals reversed the commission and found that the employer improperly applied its credit pursuant to Code Sec. 65.2-520, and required it to pay the twenty percent penalty provided for in Code Sec. 65.2-524 for payments not paid within two weeks of becoming due. The legislature, which establishes public policy for the Commonwealth, has clearly stated in Code Sec. 65.2-520 that in the case of disability, the recoupment of voluntary payment by the employer must be accomplished "by shortening the period during which compensation must be paid and not by reducing the amount of weekly payments." Code Sec. 65.2-520 does not distinguish between types of "voluntary payments." The statute states that any payment is voluntary which "by the terms of this title were not due and payable when made." "Voluntary payments" include any type of payment not required under the Act, whether the payment is an overpayment as a result of a mistake by the employer or a payment of benefits pursuant to another statute. Jerry Gilbert Dodson v. Newport News Shipbuilding, Record No. 0278-99-1 (August 10, 1999). WP Version.
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