COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Judges Benton, Bumgardner and Agee
\nArgued at Alexandria, Virginia<\/p>\n
DANNY LEONARD LAM
\n OPINION BY
\nv. Record No. 3158-01-4 JUDGE RUDOLPH BUMGARDNER, III
\n JULY 30, 2002
\nKAWNEER COMPANY, INC. AND
\n PACIFIC EMPLOYERS INSURANCE COMPANY<\/p>\n
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION<\/p>\n
Kathleen G. Walsh for appellant.<\/p>\n
Charles F. Midkiff (Midkiff, Muncie & Ross,
\nP.C., on brief), for appellees.<\/p>\n
Danny Leonard Lam appeals a decision of the Workers’
\nCompensation Commission permitting the employer to terminate
\nbenefits without filing an application and refusing to impose a
\npenalty for not paying the benefits. Finding no error, we
\naffirm.
\nThe worker sustained an injury on February 23, 1988 for
\nwhich he received compensation until April 11, 1994. The
\nemployer ceased paying benefits at that time because it received
\na letter from the worker stating that he had begun working at a
\nwage greater1 than his pre-injury wage. By letter dated June 13,<\/p>\n
1 The letter stated the worker had returned to work as a
\ntruck driver but indicated, incorrectly, a wage which was below
\nhis pre-injury wage. The letter also incorrectly gave the date
\nof employment as March 1993. The parties have stipulated
\nthroughout these proceedings that the worker was employed and<\/p>\n
1994, the insurer requested the worker to provide the name of
\nhis current employer, the date he started working, and copies of
\nhis pay stubs. The worker did not respond.
\n The commission sent form letters annually noting an
\noutstanding award and directing, “if payments have ceased, an
\nexecuted Agreed Statement of Fact or an Employer’s Application
\nfor Hearing must be filed to end the Award.” The insurer did
\nnot respond to the commission’s letters, but it wrote the
\nworker’s counsel on July 27, 1995 acknowledging the worker’s
\nreturn to work and requesting, “please contact me so that we may
\ndiscuss terminating the outstanding award.”
\n On September 20, 1999, the commission wrote the insurer to
\ninform that the worker “had now received the maximum 500 weeks
\nfor compensation benefits” and requested the total amount of
\ncompensation the employer paid to him. The insurer responded
\nthat it had paid $58,871.40. The commission then advised the
\nemployer had underpaid by $58,049.30. On June 7, 2000, the
\nworker asserted this claim for compensation from April 11, 1994
\nthrough December 31, 1997 and imposition of the 20% penalty for
\nnon-payment.2<\/p>\n
earned wages higher than his pre-injury wages at all times after
\nApril 11, 1994.<\/p>\n
2 Code ? 65.2-524 provides in part, “If any payment is not
\npaid within two weeks after it becomes due, there shall be added
\nto such unpaid compensation an amount equal to twenty percent
\nthereof . . . .”
\n – 2 –<\/p>\n
The deputy commissioner denied the claim, and the full
\ncommission affirmed under its general equitable power to do full
\nand complete justice. The worker contends he is entitled to the
\nunpaid benefits because the insurer failed to file an
\napplication to terminate the award and unilaterally ceased
\nmaking payments. We conclude that the commission properly
\nexercised its authority.<\/p>\n
When a worker does not suffer a loss of wages, receipt of
\ncompensation benefits would unjustly enrich the worker and
\nresult in manifest injustice. It is “‘[n]either logical,
\nreasonable, [n]or within the spirit of the Act'” to award
\nbenefits when a worker is not entitled to them. Collins v.
\nDep’t of Alcoholic Beverage Comm., 21 Va. App. 671, 680, 467
\nS.E.2d 279, 283 (quoting Harris v. Diamond Contr. Co., 184 Va.
\n711, 720, 36 S.E.2d 573, 577 (1946)), aff’d en banc, 22 Va. App.
\n625, 472 S.E.2d 287 (1996). The commission has applied this
\nprinciple in Goodman v. Tricorp, Inc., 01 WC UNP 1702161 (July
\n23, 2001) (worker barred from receiving windfall even though
\nemployer failed to properly terminate award), and in Kline v.
\nNewport News Shipbuilding, 00 WC UNP 1706454 (May 9, 2000)
\n(benefits denied when “the occurrence of some mistake or unfair
\nconduct . . . would render strict application of the Act
\nunjust”). Interpretations of the act by the commission are
\nentitled to great weight. Peyton v. Williams, 206 Va. 595, 600,
\n145 S.E.2d 147, 151 (1965).
\n – 3 –<\/p>\n
The worker returned to work April 11, 1994 and remained
\ncontinuously employed at a wage greater than his pre-injury
\nwage. He did not provide the insurer with the necessary details
\nof his change in employment, identify his new employer, or
\nprovide salary information or residential address changes when
\nthe insurer requested the information. The worker did not
\ndispute that he neglected to comply with the notice requirements
\nof Code ? 65.2-712. He testified he did not think he needed to
\nprovide that information because he was not asking the insurer
\n“to make up the difference.” The worker sought to enforce the
\naward six years after he last received a compensation payment
\nwhen he received the commission’s letter indicating that the
\nemployer had underpaid the award by more than $58,000.
\n While we do not condone the employer’s failure to file an
\napplication to terminate the award,3 we note the full commission
\nfound, “[t]here is no evidence . . . that the employer has
\nflaunted the Commission requirements that it file a memoranda
\nwhen accepting the claim.” The equitable power of the
\ncommission, as exemplified in the doctrine of imposition,<\/p>\n
3 The employer was unsuccessful in its attempts to get
\ndocumentation from the worker. An application for the
\ntermination of benefits must be based on documentation
\n“sufficient to support a finding of probable cause to believe
\n[his] . . . grounds for relief are meritorious.” Circuit City
\nStores, Inc. v. Scotece, 28 Va. App. 383, 386, 504 S.E.2d 881,
\n883 (1998) (footnote and citations omitted).<\/p>\n
– 4 –<\/p>\n
includes the power to “‘render decisions based on justice shown
\nby the total circumstances even though no fraud, mistake or
\nconcealment has been shown.'” Odom v. Red Lobster #235, 20
\nVa. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon
\nProds. Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228
\n(1992)). The purpose of the Act “‘is to compensate injured
\nworkers for lost wages, not to enrich them unjustly.'” Collins,
\n21 Va. App. at 678, 467 S.E.2d at 282 (quoting Harris, 184 Va.
\nat 717, 36 S.E.2d at 576).
\n Because the worker was not entitled to benefits, no penalty
\nwas applicable. Accordingly, we affirm the commission.
\n Affirmed.<\/p>\n
– 5 –<\/p>\n","protected":false},"excerpt":{"rendered":"
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