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E.I. DUPONT DE NEMOURS AND COMPANY v. EGGLESTON (57241)


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subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


E.I. DUPONT DE NEMOURS
AND COMPANY

v.

EGGLESTON


JULY 3, 2001

Record No. 2648-00-2

Present: Judges Benton, Willis and Bumgardner

Argued at Richmond, Virginia

E.I. DuPONT De NEMOURS AND COMPANY

v.

BRENDA G. EGGLESTON

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Joy C. Fuhr (Stephen D. Busch; Kimberly R.
Hillman; McGuireWoods, LLP, on briefs), for appellant.

Wesley G. Marshall for appellee.


MEMORANDUM OPINION[1] BY JUDGE
JERE M. H. WILLIS, JR.

On appeal from a decision of the Virginia
Workers’ Compensation Commission, E.I. DuPont De Nemours and
Company (DuPont) contends that the commission erred in refusing
to charge against the 500 week maximum limits of her carpal
tunnel syndrome and right shoulder injury awards the number of
weeks that Brenda G. Eggleston received benefits under her August
25, 1994 award for disability resulting from gamekeeper’s thumb.
On cross-appeal, Eggleston contends that the commission erred in
terminating her gamekeeper’s thumb award, thereby reducing her
temporary total disability compensation rate. We affirm the
commission’s decision.

I. BACKGROUND

Eggleston sustained three separate injuries
while working for DuPont and received three awards. She was
awarded benefits for bilateral carpal tunnel syndrome with a
communication date of September 28, 1989. Temporary total
benefits were paid her at the rate of $306.18 for September 19,
1990 through October 30, 1990. Permanent partial benefits were
paid from January 30, 1992 through July 29, 1992.

Eggleston’s second injury, sustained on
November 28, 1990, was to her right shoulder. She received
temporary total benefits at the rate of $293.90 from January 12,
1991 through January 14, 1991, and from September 27, 1991
through November 2, 1992.

Eggleston’s third award was for bilateral
gamekeeper’s thumb with a communication date of March 9, 1993.
She received temporary partial benefits at the rate of $74.35
from June 13, 1993 to November 30, 1993, based upon an average
weekly wage of $557.53.

On December 8, 1993, shortly after benefits
ended for the third award, Eggleston filed a change-in-condition
application. She alleged that she was fired while doing light
duty work. The deputy commissioner found that she was disabled
from all three conditions and entered an award for ongoing
temporary total disability benefits beginning August 25, 1994,
using the average weekly wage from the gamekeeper’s thumb
disability of March 9, 1993.

On February 3, 1999, DuPont filed a
change-in-condition application, with an attached memorandum,
seeking "to reduce the amount of temporary total disability
benefits being paid to [Eggleston] and to award [DuPont] a credit
against future payments." DuPont stated that it filed the
application (1) to terminate Eggleston’s award for bilateral
gamekeeper’s thumb, (2) to reduce the amount of temporary total
disability benefits based upon the resolution of the gamekeeper’s
thumb, (3) to receive credit against future temporary total
disability benefits paid Eggleston based on overpayment of
benefits from October 22, 1997, the date the gamekeeper’s thumb
resolved, to February 17, 1999, the date DuPont reduced the
amount of benefits pursuant to its application, and (4) to
receive credit against future temporary total disability benefits
paid Eggleston based upon time worked by her at light duty at her
normal pre-injury wages. DuPont also contended that Eggleston’s
maximum entitlement to benefits for each individual injury should
be reduced by the number of weeks that she received benefits
under the August 25, 1994 award.

The deputy commissioner held that DuPont was
entitled to a reduction of the temporary total disability award
due to resolution of Eggleston’s gamekeeper’s thumb. He further
held that DuPont’s payments under the August 25, 1994 award did
not entitle it to a reduction in Eggleston’s potential terms of
compensation relating to her remaining disabilities. Finding that
the August 25, 1994 award, though reciting disability from all
three conditions, was tied to the gamekeeper’s thumb disability,
he noted that the Workers’ Compensation Act "does not
provide for counting simultaneous payments, resulting from
separate injuries, as more than one week of disability benefits
against the maximum allowable period of 500 weeks."

The full commission affirmed.

II. CREDIT AGAINST 500 WEEK MAXIMUM

DuPont contends that it is entitled to credit
the number of weeks that Eggleston received benefits under her
August 25, 1994 award against the 500 week maximum compensation
terms relating to the carpal tunnel syndrome award and the right
shoulder injury award. We disagree.

"[T]he right to compensation under the
workmen’s compensation law is granted by statute, and in giving
the right the legislature had full power to prescribe the time
and manner of its exercise. When the legislature has spoken
plainly it is not the function of courts to change or amend its
enactments under the guise of construing them. The province of
construction lies wholly within the domain of ambiguity, and that
which is plain needs no interpretation."

Dan River, Inc. v. Adkins, 3 Va. App.
320, 328, 349 S.E.2d 667, 671 (1986) (quoting Winston v. City
of Richmond
, 196 Va. 403, 407-08, 83 S.E.2d 728, 731 (1954)).

Code ? 65.2-518 provides:

The total compensation payable under this title
shall in no case exceed the result obtained by multiplying the
average weekly wage of the Commonwealth as defined in
? 65.2-500 for the applicable year by 500, except in cases
of total permanent incapacity as defined in ? 65.2-503 and
in cases of permanent disability under subdivision A 4 of
? 65.2-504 and death from coal worker’s pneumoconiosis
under ? 65.2-513.

Code ? 65.2-503(E)(2) states:

Where compensation pursuant to this section is
paid simultaneously with payments for partial incapacity pursuant
to ? 65.2-502, each combined payment shall count as two weeks
against the total maximum allowable period of 500 weeks.

The Act makes no other provision for counting
single payments, resulting from separate disabling injuries,
against more than one term of eligibility. Furthermore, the Act
"should be construed liberally in favor of the worker."
Bd. of Supervisors v. Martin, 3 Va. App. 139, 146, 348
S.E.2d 540, 543 (1986) (citation omitted). Therefore, we agree
with the commission and hold that DuPont is not entitled to
credit the number of weeks that Eggleston received benefits under
her August 25, 1994 award against the 500 week maximum term
limits relating to the carpal tunnel syndrome award and the right
shoulder injury award. Eggleston sustained three separate
accidents for which she received three separate awards. She is
entitled to receive up to 500 weeks of benefits for each award.
The August 25, 1994 award was based on her gamekeeper’s thumb.
Accordingly, the commission properly concluded that a credit
against the terms of her other two awards was not due.

III. CHANGE IN CONDITION/GAMEKEEPER’S THUMB
AWARD

"General principles of workman’s
compensation law provide that ‘[i]n an application for review of
any award on the ground of change in condition, the burden is on
the party alleging such change to prove his allegations by a
preponderance of the evidence.’" Great Atl. & Pac.
Tea Co. v. Bateman
, 4 Va. App. 459, 464, 359 S.E.2d 98, 101
(1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1
Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Factual
findings made by the commission will be upheld on appeal if
supported by credible evidence. See James v. Capitol
Steel Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).

In holding that DuPont proved that Eggleston’s
gamekeeper’s thumb had resolved by October 22, 1997, the
commission found as follows:

[Eggleston's] treating doctor, Dr. Enrique
Silberblatt reported [her] thumb condition had
"resolved" by the October 22, 1997, examination. Dr.
Murray Joiner, Jr., who examined [Eggleston] one and one half
months later, also did not find the condition disabling.
[Eggleston] did not receive treatment for her thumb condition for
almost two years. When Dr. Silberblatt examined her one month
before the hearing, his report from that examination did not
state [she] was disabled.

The [d]eputy [c]ommissioner properly did not
give decisional weight to Dr. Silberblatt’s October 14, 1998,
report in which he said [Eggleston] was disabled because Dr.
Silberblatt had not recently examined [her] before he wrote that
report. His last examination was the October 22, 1997,
examination during which he opined the condition had resolved.

As fact finder, the commission was entitled to
weigh the medical evidence and to accept the reports and opinion
of Dr. Silberblatt, Eggleston’s treating physician. These support
the commission’s finding that Eggleston’s gamekeeper’s thumb had
resolved. Accordingly, that finding is conclusive and binding
upon us on appeal. See id.

We affirm the commission’s decision.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413,
this opinion is not designated for publication.

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