Barrett Learning Center/CW v. Joseph F. Rohrer ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
BARRETT LEARNING CENTER/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2587-00-2 JUDGE JEAN HARRISON CLEMENTS
AUGUST 28, 2001
JOSEPH F. ROHRER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Scott John Fitzgerald, Assistant Attorney
General (Mark L. Earley, Attorney General;
Judith Williams Jagdmann, Deputy Attorney
General; Gregory E. Lucyk, Senior Assistant
Attorney General, on brief), for appellant.
(Joseph F. Rohrer, on brief, pro se).
Barrett Learning Center (employer) appeals a decision of the
Workers' Compensation Commission denying it a credit for its
overpayments to Joseph F. Rohrer (claimant). Employer's sole
contention, on appeal, is that the commission erred in basing its
decision on Code § 65.2-712 because the overpayment arose from the
agreements of the parties rather than a change-in-condition
application. Finding appellate review barred, we affirm the
decision of the commission.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
BACKGROUND
The relevant procedural history of this case is not in
dispute. Claimant and employer executed agreements retroactively
reducing claimant's compensation benefits. The commission then
entered an award based on those agreements. Shortly thereafter,
employer, seeking a credit against future compensation for the
amount it claimed to have overpaid claimant as a result of the
retroactive reduction, filed an application for a hearing. The
application was granted, and employer filed with the deputy
commissioner a written statement of its position. In that
statement, employer alleged that claimant, upon obtaining new
employment in North Carolina, "did not initially report this
change in earnings to the employer or the carrier as required by
Code Section 65.2-712" and argued that, "[w]hen a claimant
receives an overpayment because of his failure to report a change
in earning, the employer is entitled to a credit for that
overpayment."
At the hearing before the deputy commissioner, claimant
offered evidence to refute employer's claim that he did not report
his earnings as required by Code § 65.2-712. He testified that,
every time he moved or had a change in his employment status, he
timely notified the claims adjustor or the servicing agent for the
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self-insured employer. The deputy commissioner concluded that,
because claimant did not disclose his increase in earnings to the
self-insured employer itself, as required by Code § 65.2-712,
employer was entitled to the credit it sought for its overpayment
of benefits.
Claimant appealed the decision to the full commission,
asserting that he had met the requirements of Code § 65.2-712.
Employer filed a written statement with the commission, claiming
that, even though claimant had contacted a claims adjustor, the
deputy commissioner correctly found that employer was entitled to
a credit because he had not contacted the self-insured employer.
"[W]hen a claimant receives an overpayment because of his failure
to report a change in earnings," employer reiterated, "the
employer is entitled to a credit for that overpayment."
Reviewing the case on the record, the commission noted
initially that "employer asserts that the claimant failed to
report a change in earnings as required by Code Section 65.2-712."
The commission then determined that claimant's notice to
self-insured employer's servicing agent satisfied the statutory
purpose of notification and awarded employer credit solely for the
overpayments made before claimant gave notice to the servicing
agent. This appeal followed.
ANALYSIS
Employer now contends for the first time that the commission
should have analyzed its request for a credit under Code
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§ 65.2-701, rather than under Code § 65.2-712. The issue of its
entitlement to a credit for overpaid benefits, employer argues,
did not come before the commission as a change-in-condition
application pursuant to Code §§ 65.2-712 and 65.2-708. Instead,
employer asserts, the commission entered the award based upon a
retroactive reduction agreed to by the parties pursuant to Code
§ 65.2-701, which places no limitations on an employer's recovery
of monies overpaid. Therefore, employer concludes, the commission
applied the wrong statute.
It was, however, employer, itself, that raised the issue of
claimant's noncompliance with Code § 65.2-712, averring in its
written statements to the deputy commissioner and to the full
commission that it was entitled to a credit because claimant
failed to disclose his increase in earnings to employer, as
required by Code § 65.2-712. Employer identified for the
commission no other authority or rationale upon which its claimed
entitlement to a credit should be based. Accordingly, the
dispositive question before the deputy commissioner and full
commission was whether claimant had, in accordance with Code
§ 65.2-712, notified the self-insured employer of his increased
earnings. Claimant presented evidence attempting to show that he
had complied with Code § 65.2-712. The deputy commissioner found
that claimant did not satisfy the notification requirement of Code
§ 65.2-712 and awarded employer a credit for the resultant
overpayment. Employer, in its written statement to the full
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commission, stated expressly that the deputy commissioner's
analysis and decision were correct. The full commission
determined that claimant did comply with Code § 65.2-712 by
notifying the servicing agent. Our review of the record reveals
no mention of Code § 65.2-701.
We will not consider for the first time on appeal an issue
that was not brought before the commission. See Rule 5A:18;
Henrico Pub. Utils. v. Taylor, 34 Va. App. 233, 243, 540 S.E.2d
501, 506 (2001). Furthermore, a party will not be permitted "to
invite error . . . and then to take advantage of the situation
created by his own wrong." Manns v. Commonwealth, 13 Va. App.
677, 680, 414 S.E.2d 613, 615 (1992) (internal quotations
omitted). Thus, we will not allow employer, who identified the
issue before the commission and agreed with the analysis applied
by the commission, to now take an inconsistent position before us.
See id. at 679, 414 S.E.2d at 615.
For these reasons, we hold that our consideration of the
claim before us is barred and, therefore, affirm the decision of
the commission.
Affirmed.
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