                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Baker, Elder and Bumgardner


JOSEPH LUTHER SLEMP
                                                 MEMORANDUM OPINION *
v.   Record No. 1808-97-3                            PER CURIAM
                                                  JANUARY 27, 1998
TRAY COAL PROCESSORS AND
 LIBERTY MUTUAL INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Gregory R. Herrell; Arrington, Schelin &
            Herrell, on brief), for appellant.
            (Monica L. Taylor; Gentry, Locke, Rakes &
            Moore, on brief), for appellees.



     Joseph Luther Slemp (claimant) contends that the Workers'

Compensation Commission erred in granting Tray Coal Processors'

(employer) application to amend claimant's average weekly wage

based upon a mutual mistake of fact.   Upon reviewing the record

and the briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

     On April 11, 1996, claimant, president and co-owner of

employer's business, sustained a compensable back injury.       On

April 26, 1996, Gary Mitchell, employer's vice president,

prepared an Employer's First Report of Accident, reflecting an

average weekly wage of $1,050.   On May 3, 1996, Leah Epling,

employer's insurance adjuster, received a copy of that report.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On May 6, 1996, Epling took claimant's recorded statement.    In

that statement, claimant told Epling that employer paid him

bi-weekly and that his salary fluctuated "depending on what the

checking will allow."   On July 19, 1996, the commission entered

an award in favor of claimant.   The commission awarded

compensation based upon a Memorandum of Agreement executed by

claimant on May 29, 1996, by Epling on July 5, 1996, and filed

with the commission on July 9, 1996.   The Memorandum of Agreement

indicated a pre-injury average weekly wage of $1,050.
     On August 1, 1996, Epling mailed a wage chart to Mitchell

for him to complete regarding the wages earned by claimant during

the fifty-two week period preceding his injury.   On September 24,

1996, Epling received information from Mitchell indicating that

claimant, a corporate officer, had not been paid wages during the

fifty-two week period prior to his injury and that employer would

not pay claimant a salary until economic conditions improved.      As

a result of receiving this information, employer's insurance

carrier filed an application with the commission on October 28,

1996, requesting that the commission amend claimant's average

weekly wage.

     In granting employer's application, the commission found as

follows:
           We find that the Deputy Commissioner did not
           err in determining that a mutual mistake of
           fact led to the erroneous calculation of the
           average weekly wage based on 1994 earnings.
           We further reject claimant's contention that
           the carrier took a lackadaisical approach to
           this claim. On the contrary, the evidence



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           reveals that Ms. Epling undertook a prompt
           investigation of the claim and reasonably
           relied on the information she received from
           the employer and the claimant regarding the
           claimant's salary.


     "'[T]he purpose of the Workers' Compensation Act is to

compensate injured workers for lost wages, not to enrich them

unjustly.'"   Collins v. Dept. of Alcoholic Beverage Control, 21

Va. App. 671, 678, 467 S.E.2d 279, 282 (1996).    The General

Assembly has granted "the Commission the power and authority not

only to make and enforce its awards, but protect itself and its

awards from fraud, imposition, and mistake."     Id. at 679-80, 467

S.E.2d at 283.

     In this case, the record established that the parties made a

significant mutual mistake of fact in paying compensation

benefits to claimant pursuant to their executed agreement.      To

determine whether a mutual mistake occurred, we inquire "whether

each party held the same mistaken belief with respect to a

material fact at the time . . . [the payments were made and

received]."   Id. at 681, 467 S.E.2d at 283.   In this case, Epling

acted under the mistaken belief that employer had paid claimant

an average weekly wage of $1,050 during the fifty-two week period

preceding his accident, and employer and claimant acted under the

mistaken belief that claimant was entitled to receive

compensation benefits based upon an average weekly wage of

$1,050.   The mistake was mutual.

     As we stated in Collins, "[w]ithin the principles




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established by statutes and the Supreme Court decisions, the

commission has '"jurisdiction to do full and complete justice in

each case."'   Justice is not attained by failing to correct

obvious mistakes or declining to place the parties in positions

which are in accord with the Act."   Id. at 681, 467 S.E.2d 283-84

(citations omitted).

     Accordingly, we affirm the commission's decision amending

its award to reflect claimant's status as an unpaid corporate

officer at the time of his injury.
                                                        Affirmed.




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