Ceres Marine Terminals, Inc. and Aetna Ins. v. Ward ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CERES MARINE TERMINALS, INC. and
AETNA CASUALTY & SURETY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0074-97-1 JUDGE RICHARD S. BRAY
SEPTEMBER 23, 1997
ANTHONY E. WARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert A. Rapaport (Lynne M. Ferris; Knight,
Dudley, Clarke & Dolph, P.L.C., on briefs),
for appellants.
Gregory E. Camden (Rutter & Montagna, L.L.P.,
on brief), for appellee.
Ceres Marine Terminals, Inc., employer, and Aetna Casualty &
Surety Company, carrier, (collectively employer) appeal an
amended award of permanent partial disability compensation to
Anthony E. Ward (claimant). Employer complains that the
commission erroneously denied a credit against such award for
temporary total disability benefits previously paid by employer
to claimant pursuant to the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. §§ 901 to 950 (LHWCA). In response,
claimant both defends the merits of the decision and challenges
the jurisdiction of this Court to entertain the appeal, asserting
that employer failed to timely request commission review of the
award, as amended.
We find that employer's request for review, together with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the opinion of the commission, embraced the amended award.
However, because the decision violated the principle enunciated
in Moore v. Virginia International Terminals, Inc., 254 Va. 46,
486 S.E.2d 528 (1997), aff'g 22 Va. App. 396, 470 S.E.2d 574(1996), we must reverse the commission and remand for further
proceedings consistent with this opinion.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
JURISDICTION OF THE COMMISSION
Code § 65.2-705 provides that the full commission shall
review an award "[i]f an application for review is made
. . . within twenty days from the date of the award." Timely
"application" is jurisdictional, "unless the petitioning party
alleges fraud or mistake in the procurement of the award."
McCarthy Elec. Co. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d
246, 247 (1993). Once the commission acquires jurisdiction, it
may consider, sua sponte, any error it considers "necessary for
just determination of the issues," although "[a] request for
review should assign as error specific findings of fact and
conclusions of law." See Va. Workers' Compensation Commission
Rule 3.1 (emphasis added); see also Brushy Ridge Coal Co. v.
Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988) (decided
under earlier rule; holding that failure to specify exception in
request for review is not jurisdictional and commission retains
2
discretion to consider any error).
Here, employer made a timely application for review of the
decision rendered on July 25, 1996. The subsequent order, dated
August 12, 1996, simply amended, without displacing, the earlier
award. Thus, employer's request for review provided the
commission with jurisdiction over the disputed award, permitting
it to consider, sua sponte, any issues deemed relevant on appeal.
EMPLOYER'S ENTITLEMENT TO CREDIT
Employer contends that the commission erroneously refused to
offset the permanent partial disability benefits awarded claimant
pursuant to the Virginia Workers' Compensation Act (Virginia Act)
by the temporary total disability monies previously paid under
the LHWCA. We agree.
In Virginia International Terminals, Inc. v. Moore, 22 Va.
App. 396, 470 S.E.2d 574 (1996), aff'd, 254 Va. 46, 486 S.E.2d
528 (1997), we relied upon Code § 65.2-520 to conclude that:
an employer is entitled to a credit for any
"voluntary payment" it may have made to the
employee. As defined by the statute, a
payment is "voluntary" if it was not "due and
payable" by "the terms of this title" when
made. Thus, the disability payments employer
paid claimant under the LHWCA were
"voluntary" because when paid they were not
"due and payable" under "the terms of" the
Virginia Act. Therefore, the amounts paid
under the LHWCA should have been deducted
from employer's liability as determined by
the commission. The statute makes no
exception to its command, and its language
directing that a credit be provided for "any"
voluntary payments indicates an intent to
provide a credit for all payments that fall
within its classification of "voluntary."
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22 Va. App. at 405, 470 S.E.2d at 578-79 (emphasis added).
Affirming the rationale and result in Moore on appeal, the
Virginia Supreme Court emphasized that "the General Assembly
intended that an employer should be given a 'dollar-for-dollar'
credit . . . . Any other reading of Code § 65.2-520 would allow
a double recovery by an injured employee, and . . . '[d]ouble
recovery under concurrent jurisdiction will not be allowed.'" 1
254 Va. at 50, 486 S.E.2d at 530 (quoting American Foods v. Ford,
221 Va. 557, 561, 272 S.E.2d 187, 190 (1980)).
Accordingly, we reverse and remand the award, instructing
the commission to ascertain the total compensation paid to
claimant pursuant to the LHWCA and credit same to employer's
responsibility pursuant to the Virginia Act.
Reversed and remanded.
1
Contrary to claimant's argument, the particulars of
claimant's coverage under the LHWCA do not affect employer's
entitlement to a credit for voluntary payments in this instance.
4