E.I.DuPont De Nemoursv Brenda G. Eggleston ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
E.I. DuPONT De NEMOURS AND COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2648-00-2 JUDGE JERE M. H. WILLIS, JR.
JULY 3, 2001
BRENDA G. EGGLESTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joy C. Fuhr (Stephen D. Busch; Kimberly R.
Hillman; McGuireWoods, LLP, on briefs), for
appellant.
Wesley G. Marshall for appellee.
On appeal from a decision of the Virginia Workers'
Compensation Commission, E.I. DuPont De Nemours and Company
(DuPont) contends that the commission erred in refusing to
charge against the 500 week maximum limits of her carpal tunnel
syndrome and right shoulder injury awards the number of weeks
that Brenda G. Eggleston received benefits under her August 25,
1994 award for disability resulting from gamekeeper's thumb. On
cross-appeal, Eggleston contends that the commission erred in
terminating her gamekeeper's thumb award, thereby reducing her
temporary total disability compensation rate. We affirm the
commission's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
Eggleston sustained three separate injuries while working
for DuPont and received three awards. She was awarded benefits
for bilateral carpal tunnel syndrome with a communication date
of September 28, 1989. Temporary total benefits were paid her
at the rate of $306.18 for September 19, 1990 through October
30, 1990. Permanent partial benefits were paid from January 30,
1992 through July 29, 1992.
Eggleston's second injury, sustained on November 28, 1990,
was to her right shoulder. She received temporary total
benefits at the rate of $293.90 from January 12, 1991 through
January 14, 1991, and from September 27, 1991 through November
2, 1992.
Eggleston's third award was for bilateral gamekeeper's
thumb with a communication date of March 9, 1993. She received
temporary partial benefits at the rate of $74.35 from June 13,
1993 to November 30, 1993, based upon an average weekly wage of
$557.53.
On December 8, 1993, shortly after benefits ended for the
third award, Eggleston filed a change-in-condition application.
She alleged that she was fired while doing light duty work. The
deputy commissioner found that she was disabled from all three
conditions and entered an award for ongoing temporary total
disability benefits beginning August 25, 1994, using the average
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weekly wage from the gamekeeper's thumb disability of March 9,
1993.
On February 3, 1999, DuPont filed a change-in-condition
application, with an attached memorandum, seeking "to reduce the
amount of temporary total disability benefits being paid to
[Eggleston] and to award [DuPont] a credit against future
payments." DuPont stated that it filed the application (1) to
terminate Eggleston's award for bilateral gamekeeper's thumb,
(2) to reduce the amount of temporary total disability benefits
based upon the resolution of the gamekeeper's thumb, (3) to
receive credit against future temporary total disability
benefits paid Eggleston based on overpayment of benefits from
October 22, 1997, the date the gamekeeper's thumb resolved, to
February 17, 1999, the date DuPont reduced the amount of
benefits pursuant to its application, and (4) to receive credit
against future temporary total disability benefits paid
Eggleston based upon time worked by her at light duty at her
normal pre-injury wages. DuPont also contended that Eggleston's
maximum entitlement to benefits for each individual injury
should be reduced by the number of weeks that she received
benefits under the August 25, 1994 award.
The deputy commissioner held that DuPont was entitled to a
reduction of the temporary total disability award due to
resolution of Eggleston's gamekeeper's thumb. He further held
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that DuPont's payments under the August 25, 1994 award did not
entitle it to a reduction in Eggleston's potential terms of
compensation relating to her remaining disabilities. Finding
that the August 25, 1994 award, though reciting disability from
all three conditions, was tied to the gamekeeper's thumb
disability, he noted that the Workers' Compensation Act "does
not provide for counting simultaneous payments, resulting from
separate injuries, as more than one week of disability benefits
against the maximum allowable period of 500 weeks."
The full commission affirmed.
II. CREDIT AGAINST 500 WEEK MAXIMUM
DuPont contends that it is entitled to credit the number of
weeks that Eggleston received benefits under her August 25, 1994
award against the 500 week maximum compensation terms relating
to the carpal tunnel syndrome award and the right shoulder
injury award. We disagree.
"[T]he right to compensation under the
workmen's compensation law is granted by
statute, and in giving the right the
legislature had full power to prescribe the
time and manner of its exercise. When the
legislature has spoken plainly it is not the
function of courts to change or amend its
enactments under the guise of construing
them. The province of construction lies
wholly within the domain of ambiguity, and
that which is plain needs no
interpretation."
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Dan River, Inc. v. Adkins, 3 Va. App. 320, 328, 349 S.E.2d 667,
671 (1986) (quoting Winston v. City of Richmond, 196 Va. 403,
407-08, 83 S.E.2d 728, 731 (1954)).
Code § 65.2-518 provides:
The total compensation payable under this
title shall in no case exceed the result
obtained by multiplying the average weekly
wage of the Commonwealth as defined in
§ 65.2-500 for the applicable year by 500,
except in cases of total permanent
incapacity as defined in § 65.2-503 and in
cases of permanent disability under
subdivision A 4 of § 65.2-504 and death from
coal worker's pneumoconiosis under
§ 65.2-513.
Code § 65.2-503(E)(2) states:
Where compensation pursuant to this section
is paid simultaneously with payments for
partial incapacity pursuant to § 65.2-502,
each combined payment shall count as two
weeks against the total maximum allowable
period of 500 weeks.
The Act makes no other provision for counting single payments,
resulting from separate disabling injuries, against more than
one term of eligibility. Furthermore, the Act "should be
construed liberally in favor of the worker." Bd. of Supervisors
v. Martin, 3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986)
(citation omitted). Therefore, we agree with the commission and
hold that DuPont is not entitled to credit the number of weeks
that Eggleston received benefits under her August 25, 1994 award
against the 500 week maximum term limits relating to the carpal
tunnel syndrome award and the right shoulder injury award.
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Eggleston sustained three separate accidents for which she
received three separate awards. She is entitled to receive up
to 500 weeks of benefits for each award. The August 25, 1994
award was based on her gamekeeper's thumb. Accordingly, the
commission properly concluded that a credit against the terms of
her other two awards was not due.
III. CHANGE IN CONDITION/GAMEKEEPER'S THUMB AWARD
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Factual findings made by the commission will
be upheld on appeal if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
In holding that DuPont proved that Eggleston's gamekeeper's
thumb had resolved by October 22, 1997, the commission found as
follows:
[Eggleston's] treating doctor, Dr. Enrique
Silberblatt reported [her] thumb condition
had "resolved" by the October 22, 1997,
examination. Dr. Murray Joiner, Jr., who
examined [Eggleston] one and one half months
later, also did not find the condition
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disabling. [Eggleston] did not receive
treatment for her thumb condition for almost
two years. When Dr. Silberblatt examined
her one month before the hearing, his report
from that examination did not state [she]
was disabled.
The [d]eputy [c]ommissioner properly
did not give decisional weight to Dr.
Silberblatt's October 14, 1998, report in
which he said [Eggleston] was disabled
because Dr. Silberblatt had not recently
examined [her] before he wrote that report.
His last examination was the October 22,
1997, examination during which he opined the
condition had resolved.
As fact finder, the commission was entitled to weigh the
medical evidence and to accept the reports and opinion of Dr.
Silberblatt, Eggleston's treating physician. These support the
commission's finding that Eggleston's gamekeeper's thumb had
resolved. Accordingly, that finding is conclusive and binding
upon us on appeal. See id.
We affirm the commission's decision.
Affirmed.
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