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Home / Fulltext Opinions / Supreme Court of Virginia / MOORE v. VIRGINIA INTERNATIONAL TERMINALS, INC. (59892)



June 6, 1997
Record No. 961500





Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Poff, Senior Justice

The sole issue in this appeal is whether the Court of Appeals
erred in ruling that Code ? 65.2-520 (a part of the
Virginia Workers’ Compensation Act, Code ? 65.2-100 et
seq. (the Virginia Act)) grants an employer 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. ? 901 et seq. (the Longshore
Act), which exceeded the employer’s obligations under the
Virginia Act.

The facts are undisputed. On November 10, 1986, Melvin C.
Moore, Jr., sustained injuries to both wrists while working as a
longshoreman with Virginia International Terminals, Inc. (VIT).
It is conceded that Moore’s injury was compensable under both the
Longshore Act and the Virginia Act.

Moore initially sought disability benefits under the Longshore
Act. As a result of his injuries, Moore received temporary total
disability benefits under the Longshore Act from November 11,
1986, through April 7, 1987; from April 14, 1987, through
November 22, 1987; and from November 25, 1987, through February
15, 1988. Moore also received temporary partial disability
benefits from February 16, 1988, through April 17, 1988;
temporary total disability benefits from April 18, 1988, through
July 27, 1988; and permanent partial disability benefits from
July 28, 1988, through August 31, 1990. In addition, Moore
received temporary total disability benefits from June 7, 1993,
through October 11, 1993.

On May 5, 1988, while receiving temporary total disability
benefits under the Longshore Act, Moore filed an application for
benefits with the Virginia Workers’ Compensation Commission (the
Commission). Moore sought temporary total disability benefits
beginning September 1, 1990.

The parties stipulated that VIT was entitled to a credit for
compensation it paid to Moore under the Longshore Act during the
periods of Moore’s disability through November 19, 1989, and from
June 7, 1993, to August 18, 1993. The parties disagreed, however,
regarding the method of calculating the credit pursuant to Code
? 65.2-520.

VIT paid a total of $128,578.60 to Moore under the Longshore
Act, and it contended that it is entitled to a
"dollar-for-dollar" credit in the amount of $16,062.06;
i.e., that portion of the sum it paid which exceeds its
obligation under the Virginia Act. Moore contended, on the other
hand, that VIT is entitled to credit on a
"week-for-week" basis, whereby credit is awarded based
upon the number of weeks during which benefits were paid by VIT
under the Longshore Act.

The Commission, affirming its Deputy Commissioner, adopted
Moore’s "week-for-week" contention. Specifically, the
Commission held that VIT "is entitled to set off the number
of weeks that benefits were paid under [the Longshore Act] rather
than the total amount . . . of compensation paid under
[the Longshore Act]." Thus, any weekly amounts VIT paid to
Moore under the Longshore Act which exceeded what was due under
the Virginia Act were not credited against VIT’s liability under
the Virginia Act.

The Court of Appeals reversed that part of the Commission’s
order relating to the amount of the credit. The Court held that
"the [C]ommission erred in concluding that [VIT] was not
entitled to credit for the amount [VIT] paid under the [Longshore
Act] that exceeded its obligation under the Virginia Act." Virginia
Intern. Terminals
v. Moore, 22 Va. App. 396, 405-06,
470 S.E.2d 574, 579 (1996). We awarded Moore an appeal, having
determined that the Court of Appeals’ decision involves a matter
of significant precedential value. Code ? 17-116.07(B).

Where, as here, 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).

In Calbeck, an employer contended that its employee’s
acceptance of benefits under a state compensation act constituted
an election of remedies which barred prosecution of his claim
under the Longshore Act. The Supreme Court held that the injured
employee’s acceptance of state disability benefits did not
constitute an election of remedies under state law that would
preclude recovery under the Longshore Act. In so holding, the
Supreme Court noted that, in the commissioner’s order directing
payment of compensation under the Longshore Act, "the full
amount of all payments made by the employer [under the state act] was credited against the [Longshore Act] award, and no
impermissible double recovery is possible." 370 U.S. at 131.
Consistent with Calbeck, the Supreme Court, in Sun
Ship, Inc.
v. Pennsylvania, 447 U.S. 715, 725 n.8
(1980), concluded that "there is no danger of double
recovery under concurrent jurisdiction since employers’ awards
under one compensation scheme would be credited against any
recovery under the second scheme."

In American Foods, we considered the issue of
concurrent jurisdiction and stated that "both the federal
and the state governments are constitutionally competent to
provide [workers'] compensation remedies to [workers] who are
killed or injured on navigable waters in Virginia." 221 Va.
at 561, 272 S.E.2d at 190. We also stated that "[d]ouble
recovery under concurrent jurisdiction will not be allowed,
because an employer receives credit for prior state compensation
awards in any subsequent award under [the Longshore Act]." Id.

The Code section at issue in the present case, Code
? 65.2-520, entitled "Voluntary payment by
employer," reads as follows:

Any payments made by the employer to the injured
employee during the period of his disability, or to his
dependents, which by the terms of this title were not due and
payable when made, may, subject to the approval of the
Commission, be deducted from the amount to be paid as
provided that, in the case of disability,
such deductions shall be made by shortening the period during
which compensation must be paid and not by reducing the
amount of the weekly payment. (Emphasis added.)

We think, in enacting Code ? 65.2-520, the General
Assembly intended that an employer should be given a
"dollar-for-dollar" credit. Indeed, the statute states
that "[a]ny payments . . . may . . . be
deducted from the amount to be paid as compensation." Payments
are made in dollars, and compensation is paid in dollars.
Any other reading of Code ? 65.2-520 would allow a double
recovery by an injured employee, and, as we said in American
, "[d]ouble recovery under concurrent jurisdiction
will not be allowed." 221 Va. at 561, 272 S.E.2d at 190.
Moreover, had the General Assembly intended a
"week-for-week" credit, the directive against
"reducing the amount of the weekly payment" would have
been unnecessary.

Moore correctly points out that the Commission in a number of
cases has uniformly interpreted and applied the credit provision
of Code ? 65.2-520 "to provide for credit measured by
the period of disability and corresponding payments, as opposed
to offsetting the total dollar amount paid against the dollar
amount to which the claimant would otherwise be entitled under
the Virginia Act." Moore also correctly states that
"[a] basic tenet of interpretation and application of the
Virginia Act is that the construction given to the Act by the
. . . Commission is to be accorded great weight."
Nevertheless, when the Commission’s interpretation of a statute
runs counter to what we perceive to be the clear intent of the
General Assembly as well as our decisions, the former must yield.
This is such a case.

Accordingly, we will affirm the judgment of the Court of
Appeals. In accordance with the Court of Appeals’ opinion, the
case will be remanded to the Court of Appeals, with direction
that it remand the case to the Commission for a determination
consistent with this opinion.


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