Modification of pre-injury wages denied

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Where claimant did not challenge the stated average weekly wage in her award order within 30 days of the Virginia Workers’ Compensation Commission’s decision, the award order can only be modified “on grounds of fraud, misrepresentation, mistake, or imposition.”

The commission correctly determined that claimant did not prove one of these grounds.

Untimely appeal

“Mahamed asks this Court to reverse the Commission’s June 28, 2022 decision and increase her average weekly wage from $439.19 to $535.60. She argues for a number of reasons that such an increase is necessary to make her whole.

“However, both this Court and the Commission are creatures of limited power, and we can modify an award order only if it is timely appealed or is properly before us on other grounds.

“The original award order here, which awarded Mahamed temporary total disability benefits beginning December 10, 2019, was entered on January 26, 2021. The award order approved the award agreement, which was signed by Mahamed and her employer, and set Mahamed’s average weekly wage at $439.19.

“Furthermore, the original award order itself informed Mahamed, ‘If any party wishes to dispute this Award Order, a Request for Review (appeal) must be filed within 30 days of the date of this Order.’

“The date of the order was January 26, 2021. However, over three months passed from that date before Mahamed first raised the argument to the Commission that she now presents here. It was not until after Mahamed returned to work in May 2021 that she filed a motion to amend her average weekly wage.

“At that point, the time to file for a review of the original award order had well since passed. … Consequently, Mahamed did not timely seek review of this award.”

Modification possible

“However, even after the time to request review of an award by the full Commission has passed, a party can still invoke the limited power that the Commission retains to protect its award orders. …

“To modify an award order that is not timely filed for review, the moving party (here Mahamed) bears the burden to allege grounds of fraud, misrepresentation, mistake, or imposition – and then prove those grounds by clear and convincing evidence. …

“The Commission found that Mahamed failed to meet this burden. The deputy commissioner was ‘not persuaded on the record before [it] that any fraud, misrepresentation, mistake or imposition resulted in the previously agreed upon average weekly wage of $439.19.’

“This decision was then unanimously affirmed by the full Commission.

“Given that the Commission has no power to amend the original award order absent grounds of fraud, misrepresentation, mistake, or imposition, if the Commission did not err in finding that Mahamed failed to prove such grounds existed here, then this Court cannot reverse the Commission’s decision not to amend Mahamed’s average weekly wage.

“On appeal to this Court, none of Mahamed’s assignments of error claim that the Commission erred in finding that Mahamed failed to prove fraud, misrepresentation, mistake, or imposition by clear and convicting evidence.

“Neither can her assignments of error be read to subsume an argument that her award order should be revisited based on any of those grounds.

“Furthermore, Mahamed failed to present any such argument on brief to this Court. In both her assignments of error and her brief to this Court, Mahamed never mentions ‘fraud,’ ‘mistake,’ ‘misrepresentation,’ or ‘imposition.’ …

“Since Mahamed never assigned error to that threshold finding by the Commission, Rule 5A:20(c) of the Rules of the Supreme Court of Virginia precludes us from reaching the question of whether Mahamed proved by clear and convincing evidence that modification of her average weekly wage is appropriate.”

Affirmed.

Mahamed v. Alexandria City Public Schools, et al., Record No. 1098-22-4, Aug. 8, 2023. CAV (unpublished opinion) (Beales) From the Virginia Workers’ Compensation Comm’n. M. Thomas McWeeny for appellant. Justin R. Main for appellees. VLW 023-7-316, 9 pp.