Jerry Gilbert Dodson v. Newport News Shipbuiling,et ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
JERRY GILBERT DODSON
MEMORANDUM OPINION* BY
v. Record No. 0278-99-1 JUDGE ROBERT P. FRANK
AUGUST 10, 1999
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard B. Donaldson, Jr. (Kevin W. Grierson;
Jones, Blechman, Woltz & Kelly, P.C., on
brief), for appellant.
Benjamin M. Mason (Mason & Mason, P.C., on
brief), for appellee.
Jerry Gilbert Dodson (appellant) appeals the December 17,
1998 decision of the Virginia Workers’ Compensation Commission
(commission). On appeal, he asserts that the commission erred
in finding that Newport News Shipbuilding and Dry Dock Company
(employer) properly took credit for payments it made under the
Longshore and Harborworkers’ Compensation Act (LHWCA) against
its liability under the Virginia Workers’ Compensation Act
(Act). We agree with appellant and reverse the decision of the
commission and remand for determination of the penalty under
Code § 65.2-524.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Appellant was employed by Newport News Shipbuilding and Dry
Dock Company on August 11, 1993 when he injured his left knee.
The employer accepted appellant’s claim for benefits under the
federal LHWCA, and appellant received payments under the LWHCA
for permanent partial disability until October 29, 1996. On May
3, 1995, appellant received a permanent partial disability
rating for his left leg, which entitled him to 144 weeks of
compensation under the LHWCA and 87.5 weeks of compensation
under the Act, a difference of 56.5 weeks. The employer paid
the 144 weeks of permanent partial disability benefits under the
LHWCA from May 3, 1995 through January 19, 1998.
On January 15, 1998, the commission affirmed the deputy
commissioner’s award of temporary total disability benefits
under the Act beginning April 1, 1997. The award stated that
the employer would receive credit for any payments it made
pursuant to the LHWCA. The employer did not begin making
payments pursuant to the award under the Act until May 2, 1998,
the date the employer asserts that its credit for 56.5 weeks
under the LHWCA was exhausted.
By opinion dated December 17, 1998, the commission ruled
that Code § 65.2-520 does not dictate the manner in which the
employer can take its credit for payment under the LHWCA against
its liability under the Act and, therefore, the employer
properly took its credit for 56.5 weeks by suspending benefits
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from the date payment was to begin under the Act until the
expiration of 56.5 weeks.
II. ANALYSIS
Appellant challenges the commission’s holding that
Code § 65.2-520 does not dictate the manner by which the
employer may take its credit for payments under the LHWCA
against its liability under the Act. We agree with appellant
and reverse and remand the case to the commission for
determination of the penalty against the employer.
Appellant concedes that the employer is entitled to a
dollar-for-dollar credit for the amount the employer paid under
the LHWCA that exceeded the employer’s responsibility under the
Act. Therefore, we only consider whether the pre-1998 version
of Code § 65.2-520 permits the employer to apply its credit for
payments under the LHWCA at the beginning of the period during
which appellant should have received payment under the Act.
“This Court is not bound by the legal determinations made
by the commission. ‘[W]e must inquire to determine if the
correct legal conclusion has been reached.’” Uninsured
Employer’s Fund v. Harper, 26 Va. App. 522, 529, 495 S.E.2d 540,
543 (1998) (quoting Cibula v. Allied Fibers & Plastics, 14 Va.
App. 319, 324, 416 S.E.2d 708, 711 (1992) (citation omitted),
aff’d, 245 Va. 337, 428 S.E.2d 905 (1993)). “‘The construction
afforded a statute by the public officials charged with its
administration and enforcement is entitled to be given great
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weight by a court.’” Lynch v. Lee, 19 Va. App. 230, 232, 450
S.E.2d 391, 392 (1994) (quoting Watford v. Colonial Williamsburg
Found., 13 Va. App. 501, 505, 413 S.E.2d 69, 71 (1992) (citation
omitted)). “This Court should withhold deference only ‘[w]hen
[the commission’s] statutory interpretation conflicts with the
language of the statute or when the interpretation has not been
consistently and regularly applied.’” Id. at 232-33, 450 S.E.2d
at 393 (quoting Commonwealth v. May Bros., Inc., 11 Va. App.
115, 119, 396 S.E.2d 695, 697 (1990) (citation omitted)).
The pre-1998 version of Code § 65.2-520 stated in pertinent
part:
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 compensation
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.
In its opinion, the commission held that the employer was
entitled to take its credit at the beginning of the payment
period under the Act because the employer “would never realize a
credit for the excess payments made under the LWHCA” if the
employer was required to wait until the end of the payment
period to recoup the credit. The commission distinguished its
holding in Cline v. Dana Corporation, VWC 181-38-99 (November
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24, 1997), where it held that an employer only could recoup
overpayment by shortening the payment period pursuant to
Code § 65.2-520. The commission distinguished Cline on the
basis that 1) the overpayment in Cline was the result of a
unilateral mistake by the employer and 2) that the claim in
Cline did not involve recovery under the laws of more than one
jurisdiction.
We disagree with the commission’s analysis of Cline.
Code § 65.2-520 does not distinguish between types of “voluntary
payments.” The statute states that any payment is voluntary
which “by the terms of this title were not due and payable when
made.” In its opinion, the commission attempts to create
categories of “voluntary payments” by stating that the
voluntariness of an overpayment by an employer is of a different
character than payments required under the law of a different
jurisdiction. We find no basis for the commission’s holding in
the language of Code § 65.2-520. We, therefore, hold that the
definition of “voluntary payments” includes any type of payment
not required under the Act, whether the payment is an
overpayment as a result of a mistake by the employer or a
payment of benefits pursuant to another statute.
The commission’s concern with the “strong underlying policy
to prevent double recovery when claims are made under the laws
of more than one jurisdiction” is misplaced. The legislature,
which establishes public policy for the Commonwealth, has
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clearly stated in Code § 65.2-520 that in the case of
disability, the recoupment of voluntary payment by the employer
must be accomplished “by shortening the period during which
compensation must be paid and not by reducing the amount of
weekly payments.” The commission relies on Virginia
International Terminals v. Moore, 22 Va. App. 396, 470 S.E.2d
574 (1996), aff’d, 254 Va. 46, 486 S.E.2d 528 (1997), in support
of a strong public policy against double recovery by an injured
employee. While Moore states that there is an intent for an
employee not to be awarded a double recovery, Moore does so in
the context of allowing the employer a dollar-for-dollar credit
under Code § 65.2-520. See id. at 403-04, 470 S.E.2d at 577-78.
Nowhere does Moore suggest that the policy against double
recovery overrides the clear statutory directive in Code
§ 65.2-520 as to how an employer’s credit is to be taken. We
hold, therefore, that despite public policy against double
recovery, Code § 65.2-520 explicitly directs the employer to
take any credit due as a result of “voluntary payments” by
shortening the period during which the payments are to be made,
not by reducing the weekly amount of the payment. In this case,
the employer took its credit by reducing the weekly payment to
zero for 56.5 weeks. Only at the conclusion of the 56.5 weeks,
did the employer begin weekly payments to appellant. We find
that the employer improperly applied its credit pursuant to Code
§ 65.2-520, and require it to pay the twenty percent penalty
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provided for in Code § 65.2-524 for payments not paid within two
weeks of becoming due.
III. CONCLUSION
For these reasons, we hold that the commission erred in
holding that the employer properly applied its credit pursuant
to Code § 65.2-520. We reverse the decision of the commission
and remand for determination of the penalty under Code
§ 65.2-524.
Reversed and remanded.
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