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CERES MARINE TERMINALS, INC., et al. v. WARD


CERES MARINE TERMINALS,
INC., et al. v. WARD

(unpublished)


SEPTEMBER 23, 1997
Record No. 0074-97-1

CERES MARINE TERMINALS, INC. and
AETNA CASUALTY & SURETY COMPANY

v.

ANTHONY E. WARD

MEMORANDUM OPINION[1]
BY JUDGE RICHARD S. BRAY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Robert A. Rapaport (Lynne M. Ferris; Knight, Dudley, Clarke
& Dolph, P.L.C., on briefs), for appellants.

Gregory E. Camden (Rutter & Montagna, L.L.P., on brief), for
appellee.


Ceres Marine Terminals, Inc., employer, and Aetna Casualty
& Surety Company, carrier, (collectively employer) appeal an
amended award of permanent partial disability compensation to
Anthony E. Ward (claimant). Employer complains that the
commission erroneously denied a credit against such award for
temporary total disability benefits previously paid by employer
to claimant pursuant to the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. ?? 901
to 950 (LHWCA). In response, claimant both defends the merits of
the decision and challenges the jurisdiction of this Court to
entertain the appeal, asserting that employer failed to timely
request commission review of the award, as amended.

We find that employer’s request for review, together with the
opinion of the commission, embraced the amended award. However,
because the decision violated the principle enunciated in Moore
v. Virginia International Terminals, Inc.
, 254 Va. 46, 486
S.E.2d 528 (1997), aff’g 22 Va. App. 396, 470 S.E.2d 574
(1996), we must reverse the commission and remand for further
proceedings consistent with this opinion.

The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.

JURISDICTION OF THE COMMISSION

Code ? 65.2-705
provides that the full commission shall review an award
"[i]f an application for review is made
. . . within twenty days from the date of the
award." Timely "application" is jurisdictional,
"unless the petitioning party alleges fraud or mistake in
the procurement of the award." McCarthy Elec. Co. v.
Foster
, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993).
Once the commission acquires jurisdiction, it may consider, sua
sponte, any error it considers "necessary for just
determination of the issues," although "[a] request for
review should assign as error specific findings of fact
and conclusions of law." See Va. Workers’
Compensation Commission Rule 3.1 (emphasis added); see also
Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367
S.E.2d 204, 206 (1988) (decided under earlier rule; holding that
failure to specify exception in request for review is not
jurisdictional and commission retains discretion to consider any
error).

Here, employer made a timely application for review of the
decision rendered on July 25, 1996. The subsequent order, dated
August 12, 1996, simply amended, without displacing, the earlier
award. Thus, employer’s request for review provided the
commission with jurisdiction over the disputed award, permitting
it to consider, sua sponte, any issues deemed
relevant on appeal.

EMPLOYER’S ENTITLEMENT TO CREDIT

Employer contends that the commission erroneously refused to
offset the permanent partial disability benefits awarded claimant
pursuant to the Virginia Workers’ Compensation Act (Virginia Act)
by the temporary total disability monies previously paid under
the LHWCA. We agree.

In Virginia International Terminals, Inc. v. Moore, 22
Va. App. 396, 470 S.E.2d 574 (1996), aff’d, 254 Va. 46,
486 S.E.2d 528 (1997), we relied upon Code ? 65.2-520 to conclude
that:

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."

22 Va. App. at 405, 470 S.E.2d at 578-79 (emphasis added).
Affirming the rationale and result in Moore on appeal, the
Virginia Supreme Court emphasized that "the General Assembly
intended that an employer should be given a ‘dollar-for-dollar’
credit . . . . Any other reading of Code ? 65.2-520 would allow
a double recovery by an injured employee, and . . .
‘[d]ouble recovery under concurrent jurisdiction will not be
allowed.’"[2]
254 Va. at 50, 486 S.E.2d at 530 (quoting American Foods v.
Ford
, 221 Va. 557, 561, 272 S.E.2d 187, 190 (1980)).

Accordingly, we reverse and remand the award, instructing the
commission to ascertain the total compensation paid to claimant
pursuant to the LHWCA and credit same to employer’s
responsibility pursuant to the Virginia Act.

Reversed and remanded.

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2]
Contrary to claimant’s argument, the particulars of claimant’s
coverage under the LHWCA do not affect employer’s entitlement to
a credit for voluntary payments in this instance.

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