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MODIFICATION OF FINAL ORDERS

See  Awards

If an application for review of a final order of the commission is not made within twenty days of the date of the order, the commission has no jurisdiction to review the matter unless the petitioning party alleges fraud or mistake in the procurement of the award. McCarthy Electric Company, Inc. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing Code Sec. 65.2-705(A)).

Claimant suffered a compensable injury in 1989. The commission awarded him temporary total disability benefits in1989 but suspended that award in 1991 because of his third-party recovery. In 1996, Robinson applied for a new offset calculation based on Code Sec. 65.2-313, requiring offset calculations and proportionate payments of litigation expenses incurred in obtaining a third-party award which suspends, in whole or in part, an employer's workers' compensation obligations. Claimant is not entitled to this recalculation. If an application for review of a final order of the commission is not made within twenty days of the date of the order, the commission has no jurisdiction to review the matter unless the petitioning party alleges fraud or mistake in the procurement of the award. McCarthy Electric Company, Inc. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing Code Sec. 65.2-705(A)). Because claimant failed to meet this time requirement and has not alleged fraud or mistake, the commission correctly found that it lacked authority to modify the 1991 order. Claimant contends that the legislature intended that Code Sec. 65.2-313 be applied retroactively. This issue need not be addressed because even if the statute could be applied retroactively, it could not be used to modify the 1991 order because claimant failed to allege fraud or mistake. See Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734,736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986)(citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736n.2). James A. Robinson  v. Trego Stone Corporation, Record No. 0861-97-2 (November 25, 1997).

Claimant was awarded permanent partial disability benefits. Subsequently the claimant was awarded temporary partial benefits. In its order awarding temporary partial benefits, the VWC directed the temporary partial benefits to be paid simultaneously with the permanent partial benefits. Such simultaneous payments are authorized but not mandated by Sec. 65.2-503(E)(2). Five days after the entry of the order directing simultaneous payment, the employer's attorney telephoned the VWC and was told by a claims examiner that the order for simultaneous payments would be corrected. The employer did not write a confirming letter memorializing this conversation with the claims examiner until over a month after the date of entry of the order. Claimant then moved for payment of a 20% penalty because the employer did not make timely payments per the order, and this motion was granted by a deputy commissioner. Employer then contacted the claims examiner by letter. The claims examiner disavowed any knowledge of the earlier contact regarding a corrected order. Despite the fact that the employer did not file a timely request for review of the order requiring simultaneous payments, the VWC found that that employer's counsel made a good faith effort to contact the claims department to assert disagreement with the award order requiring simultaneous payment. The VWC found that simultaneous payments were neither intended by employer nor properly ordered by the commission in this instance. Thus, expressly asserting its "implied power . . . to vacate an award procured through fraud or mutual mistake," the commission properly amended the simultaneous payment order to relieve employer from simultaneous temporary and permanent partial disability payments and the related penalty. the commission may exercise jurisdiction after the expiration of appeal periods to redress fraud, imposition or mistake. See Harris v. Diamond Construction, 184 Va. 711, 720-21, 36 S.E.2d 573, 577-78 (1946). "Within the principles 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." Collins v. Department of Alcoholic Beverage Control, 21 Va. App. 671, 681, 467 S.E.2d 279, 283-84 (citations omitted), aff'd en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996). Herbert C. King, Jr. v. Pepsi Cola Company, Record No. 0356-98-2 (February 9, 1999).

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