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NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. v. LAWRENCE


NEWPORT NEWS SHIPBUILDING AND
DRY DOCK CO.

v.

LAWRENCE

(unpublished)


AUGUST 3, 1999

Record No. 0086-99-1

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY

v.

STEVEN J. LAWRENCE

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Bray, Frank and Senior Judge
Baker

Argued at Norfolk, Virginia

MEMORANDUM OPINION* BY JUDGE RICHARD S. BRAY

Jonathan H. Walker (Mason & Mason, P.C., on
brief), for appellant.

No brief or argument for appellee.


Newport News Shipbuilding and Dry Dock Company
(employer) appeals a decision of the Virginia Workers’
Compensation Commission (commission), complaining that the
commission erroneously awarded Steven J. Lawrence (claimant)
total disability benefits, while denying employer a credit
against any future compensation owed claimant under the
Workers’ Compensation Act (Act). Finding no error, we affirm
the commission.

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

On February 23, 1987, claimant sustained a
compensable injury and was awarded benefits pursuant to the Act.
Benefits were thereafter continued for periods specified by
subsequent orders of the commission. On January 24, 1995,
employer filed an "application for hearing," alleging
that claimant failed to cooperate in vocational rehabilitation
and requesting a credit for excessive compensation paid to
claimant in error.
[1] Following
related hearings, a deputy commissioner, by opinion dated
February 24, 1998, denied employer relief, concluding that
claimant did not unjustifiably refuse vocational rehabilitation
and that employer was not entitled to credit for miscalculated
benefits.

Employer moved to "reopen the
record," complaining in pertinent part that the deputy had
not addressed overpayments resulting from "claimant’s
selective employment, school attendance and total disability due
to [an] auto accident" while receiving disability benefits,
circumstances apparently disclosed during the hearings.
Accordingly, the deputy vacated the prior order, reconsidered the
evidence, and again decided that claimant did not unjustifiably
refuse vocational rehabilitation. However, the deputy also
determined that employer was entitled to a credit for payments
previously made to claimant pursuant to the Longshore and Harbor
Workers’ Compensation Act (LHWCA) of $87,615.87,
[2] an amount determined to exceed any further payments due
claimant from employer. The deputy did not award employer any
credits for payments wrongfully received by claimant while
employed, attending school or disabled by the alleged auto
accident.

Claimant requested review by the full
commission, complaining that employer was incorrectly awarded a
credit of $87,615.87 for benefits under the LHWCA. Employer,
however, did not request review of the deputy’s decision,
although denied credit for payments made but allegedly not due
claimant as a result of the several intervening circumstances
which disqualified him from benefits.

Following review at claimant’s request,
the full commission, by opinion dated December 9, 1998, concluded
that "the deputy commissioner correctly found employer
entitled to a credit for the $17,401.11 mistaken overpayment
. . . [and] for all amounts paid to the claimant under
the Longshore Act," $70,214.76, a total of $87,615.87,
"to be deducted in a lump sum from accrued
compensation." However, for reasons not in issue, the
commission reversed the finding that such credit "exceeded
the employer’s liability" to claimant. Employer
appeals, arguing that the commission "erroneously awarded
[claimant] total disability benefits when [he] was either
working, a full time student or totally disabled as a result of
an automobile accident," thereby denying employer a proper
"credit against any future compensation owed
[claimant]."

Rule 3.1 of the Rules of the Commission
provides, inter alia, that "[a] request for
review of a decision or award of the Commission . . .
shall be filed by a party in writing with the Clerk of the
Commission within 20 days of the date of such decision or
award."
[3] See Code
?? 65.2-704, -705. "The award of the Commission, as
provided in ? 65.2-704, if not reviewed in due time, . . .
shall be conclusive and binding as to all questions of
fact." Code ? 65.2-706. "Decisions of a deputy
commissioner that are not reviewed by the full commission cannot
be brought before this Court." Duncan v. ABF Freight
System, Inc.
, 20 Va. App. 418, 422, 457 S.E.2d 424, 426
(1995) (citation omitted).

Here, employer did not request full commission
review of the deputy’s decision which failed to award it
credit for payments made to claimant during the alleged periods
of his employment, educational pursuits and unrelated disability.
Thus, the denial by the deputy of relief to employer for such
payments was not before the full commission on review. Hence, we
may not now entertain error in the attendant decision of the
commission for a failure to address this issue.
[4]

Accordingly, we affirm the commission’s
decision.

Affirmed.

 

* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.

FOOTNOTES:

[1] Employer paid claimant 101 weeks of compensation,
although only entitled to 101 days, an overpayment of $17,401.11.

[2] This sum appears
to also include an overpayment credit for the miscalculated
benefits.

[3] To facilitate
proper consideration by the commission, "[a] request for
review should assign as error specific findings of fact and
conclusions of law. Failure of a party to assign any specific
error in its request for review may be deemed by the Commission
to be a waiver of the party’s right to consideration of that
error." Rule 3.1.

[4] The commission
noted in its opinion that "[t]he record indicates that the
claimant has been employed at least partially during the period
of his open Award. The employer has not, however, filed an
Application for Hearing to suspend benefits on this basis."

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