                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

ELBERT LEE SPENCER

v.        Record No. 2360-94-1            MEMORANDUM OPINION*
                                       BY JUDGE JOSEPH E. BAKER
TARMAC MID-ATLANTIC, INC.                  OCTOBER 10, 1995


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          David L. Horne (Pender & Coward, on brief),
          for appellant.
          F. Nash Bilisoly (R. John Barrett; Susan B. Potter;
     Vandeventer, Black, Meredith & Martin, on brief),
          for appellee.



     Elbert L. Spencer (claimant) appeals from a decision of the

Workers' Compensation Commission (commission) that denied his

request that the commission require Tarmac Mid-Atlantic, Inc.

(employer) to pay a twenty percent penalty on compensation due

after being suspended during unsuccessful appeal processes.      The

facts are not in dispute.

     In March 1992, claimant sustained an injury while employed

by employer, which employer accepted as compensable.      By

agreement, an award was entered in July 1992.       In September 1993,

based on a report of Dr. Richard B. McAdam, employer applied for

a hearing alleging a change in medical condition and requesting

termination or temporary suspension of disability benefits.      In

opposition to that request, claimant filed a written statement
____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and supporting documentation of his claim that benefits should

not be suspended.

     The commission's claims division reviewed employer's

application for a hearing, found probable cause to place the case

on the hearing docket, and authorized the suspension of benefits

pending the hearing.   Later in October 1993, before a hearing

could be held, claimant requested the full commission to review

the probable cause finding and suspension of benefits.      The

deputy then removed the case from the hearing docket.
     On December 1, 1993, the full commission denied claimant's

request and issued an opinion that preliminary evidence justified

suspension of benefits.   On December 2, 1993, claimant filed a

request that the commission reconsider that opinion.    On December

8, 1993, the commission issued a second opinion reversing its

December 1 decision.   In the December 8 opinion, the commission

determined it had mistakenly believed that Dr. McAdam had been

claimant's treating physician.    In fact, Dr. McAdam had

independently examined claimant for employer but had not seen

claimant in more than one and one-half years.

     On January 4, 1994, employer filed a notice of appeal to the

Court of Appeals.   Claimant moved to dismiss the appeal and on

April 8, 1994, pursuant to Code § 17-116.05, the Court of Appeals

held that the December 8, 1993 opinion of the commission was not

a final decision from which an appeal could be made.    Within two

weeks of April 8, 1994, employer paid all compensation that had




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accrued from September 28, 1993, the date of its last payment.

     Claimant then requested the commission to award him

attorney's fees and penalties of twenty percent on the

accumulated sums pursuant to Code § 65.2-524 which provides that

"[i]f any payment is not paid within two weeks after it becomes

due, there shall be added to such unpaid compensation an amount

equal to twenty percent thereof" (emphasis added).   Employer

declined to pay these sums, asserting that payments had lawfully

been suspended pursuant to Rule 13(A) and Code § 65.2-706(C).

The full commission denied claimant's request for any assessment,

holding that the record failed to show that employer did not

institute the action without reasonable grounds or in bad faith.

Code § 65.2-706(C) provides that:
         an appeal from the decision of the Commission
         to the Court of Appeals, . . . shall operate
         as a suspension of the award and no employer
         shall be required to make payment of the
         award involved in the appeal until the
         questions at issue therein shall have been
         fully determined in accordance with the
         provisions of this title.


     Appellant argues that suspension is not warranted because

the appeal was dismissed as prematurely filed.   On the facts

contained in this record, we disagree and hold that compensation

that accrued after the employer filed its September 28, 1993

application did not become due until April 8, 1994, when this

Court issued its order dismissing the employer's appeal.   Because

the employer paid all past due compensation within two weeks




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after April 8, 1994, the commission did not err in finding that a

twenty percent penalty was not due under Code § 65.2-524.

     For these reasons, we affirm the commission's decision.

                                                  Affirmed.




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