                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Huff
UNPUBLISHED


              Argued at Chesapeake, Virginia


              VICO CONSTRUCTION CORPORATION AND
               TWIN CITY FIRE INSURANCE COMPANY
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 2348-12-1                                    JUDGE ROSSIE D. ALSTON, JR.
                                                                                  AUGUST 13, 2013
              MICHAEL E. TAYLOR


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Linda M. Gillen (Daniel E. Lynch & Associates, P.C., on brief),
                               for appellants.

                               Ira M. Steingold (Steingold & Mendelson, on brief), for appellee.


                     Vico Construction Corporation and Twin City Fire Insurance Company (employer) appeal

              the decision of the Virginia Workers’ Compensation Commission (the commission) terminating

              Michael E. Taylor’s (claimant) benefits as of November 21, 2011. On appeal, employer argues that

              the commission erred in failing to give employer a credit for payments made between March 2010

              and November 21, 2011. For the reasons that follow, we affirm the decision of the commission.

                                                      I. BACKGROUND1

                     “By well established principles, we view the evidence in the record in the light most

              favorable to the party prevailing before the commission,” in this case, claimant. Boys & Girls

              Club of Va. v. Marshall, 37 Va. App. 83, 85, 554 S.E.2d 104, 105 (2001).


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       As the parties are fully conversant with the record in this case and because this
              memorandum opinion carries no precedential value, this opinion recites only those facts and
              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
              appeal.
       So viewed, the evidence indicated that claimant suffered a compensable injury on May

23, 2007, in the course of his employment with employer. In the fall of 2008, claimant’s

physician released him to light-duty work, and claimant eventually returned to light-duty work

with a different employer. On September 29, 2009, the commission awarded claimant temporary

partial disability benefits beginning June 12, 2009, and continuing.

       At some point not clearly indicated in the record, claimant was incarcerated after being

indicted on several criminal charges.2

       On October 6, 2010, after learning claimant was incarcerated, employer filed an

application for a hearing before the commission to suspend claimant’s award under Code

§ 65.2-711 for failing to notify the commission and the insurance carrier of his change in

address. On October 11, 2010, claimant’s attorney acknowledged in a letter to the commission

that claimant was incarcerated and awaiting trial.

       On June 6, 2011, claimant was found guilty of aggravated sexual battery. On June 7,

2011, employer filed a second application for hearing, requesting that the commission suspend

claimant’s award under Code § 65.2-510.1 because claimant was imprisoned. Employer also

sought a credit for any period claimant was ineligible for benefits as a result of his incarceration.

On June 27, 2011, the commission rejected employer’s applications for hearings because

employer had not provided any evidence that claimant was incarcerated or that he had failed to

provide notice of his change of address. Employer did not appeal this decision, and it is not

before us in the instant appeal.




       2
         Employer alleges claimant was incarcerated in March 2010. Claimant disputes this
claim, arguing that there is no evidence in the record as to the actual date of claimant’s
incarceration prior to his sentencing on November 21, 2011.
                                                 -2-
       On November 21, 2011, claimant was sentenced to twenty years’ imprisonment for his

criminal conviction. The sentencing order awarded claimant credit against his imprisonment for

time served.

       On November 28, 2011, employer applied again for a hearing to suspend claimant’s

award under Code § 65.2-510.1. Employer again sought a credit for the benefits paid to claimant

since the date claimant was first incarcerated. On January 25, 2012, the deputy commissioner

issued an opinion suspending claimant’s benefits under Code § 65.2-510.1 and awarding

employer a credit for benefits paid after March 1, 2010.

       Claimant appealed the decision to the commission, arguing that the credit should begin at

the date of his sentencing, November 21, 2011, rather than the date he was first incarcerated.

Employer responded that the credit was proper under the commission’s inherent equitable

powers because claimant’s time served had been included in his sentence. The commission

affirmed the suspension of claimant’s award under Code § 65.2-510.1. However, the

commission reversed the deputy commissioner’s award of a credit to employer for benefits paid

beginning March 1, 2010. The commission held that the plain language of Code § 65.2-510.1

allowed for suspension of a claimant’s benefits only after a claimant was convicted and

sentenced. Therefore, the commission awarded employer a credit for benefits paid beginning on

November 21, 2011. This appeal followed.

                                          II. ANALYSIS

       On appeal, employer alleges the commission erred in failing to give employer a credit for

benefit payments it made to claimant between March 2010 and November 21, 2011.

       Code § 65.2-510.1(A) provides for the suspension of an imprisoned claimant’s benefits

pursuant to Code § 65.2-708 under certain circumstances. It states,

               Whenever an employee is imprisoned in a jail, state correctional
               facility, or any other place of incarceration and (i) the
                                               -3-
               imprisonment resulted from the employee’s conviction of a
               criminal offense and followed his sentencing therefor by a court of
               competent jurisdiction, (ii) the employee is receiving compensation
               for temporary total incapacity pursuant to [Code] § 65.2-500 or
               temporary partial incapacity under [Code] § 65.2-502, and (iii) the
               employee is medically released to perform selective employment,
               compensation benefits for wage loss shall be suspended under
               [Code] § 65.2-708 upon filing of a proper application to the
               Commission.

Code § 65.2-708(A), the provision under which an imprisoned claimant’s benefits are suspended,

provides:

               Upon its own motion or upon the application of any party in
               interest, on the ground of a change in condition, the Commission
               may review any award of compensation and on such review may
               make an award ending, diminishing or increasing the
               compensation previously awarded, subject to the maximum or
               minimum provided in this title, and shall immediately send to the
               parties a copy of the award. . . . No such review shall affect such
               award as regards any moneys paid except pursuant to [Code]
               §§ 65.2-712, 65.2-1105, and 65.2-1205.

       To determine employer’s assignment of error, this Court must construe the language of

Code §§ 65.2-510.1(A) and -708(A). “An issue of statutory interpretation is a pure question of

law which we review de novo.” Ford Motor Co. v. Gordon, 281 Va. 543, 549, 708 S.E.2d 846,

850 (2011). While “‘[t]his Court is not bound by the legal determinations made by the

commission,’” Uninsured Employer’s Fund v. Harper, 26 Va. App. 522, 529, 495 S.E.2d 540,

543 (1998) (quoting Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708,

711 (1992), aff’d, 245 Va. 337, 428 S.E.2d 905 (1993)), we are also mindful that “‘[t]he

construction afforded a statute by the public officials charged with its administration and

enforcement is entitled to be given weight by a court.’” Lynch v. Lee, 19 Va. App. 230, 232,

450 S.E.2d 391, 392 (1994) (quoting Watford v. Colonial Williamsburg Found., 13 Va. App.

501, 505, 413 S.E.2d 69, 71 (1992)).




                                               -4-
       In this case, the commission held that Code §§ 65.2-510.1(A) and -708(A) did not permit

the suspension of claimant’s award as of the date of his imprisonment in March 2010, prior to

claimant’s conviction and sentencing. Instead, the commission held that claimant’s benefits

could be suspended only as of November 21, 2011, the date claimant was sentenced.

       We agree that employer was not entitled to a credit for benefits paid to claimant

beginning in March 2010. When an application for hearing is premised on Code § 65.2-708, an

employer may recover only those benefits paid after the date of the filing of the application. See

Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 479, 161 S.E. 902, 904 (1932) (interpreting

Code § 1887(47), the predecessor statute to Code § 65.2-708, to hold that modification of an

award based on a change in condition can date back only to the date of the application for

hearing); McFadden v. Carpet House, 42 Va. App. 302, 309, 591 S.E.2d 708, 712 (2004)

(holding that Code § 65.2-708 provides that “except in certain limited circumstances . . . an

employer seeking to terminate an outstanding award may affect that award only prospectively”);

Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 80, 367 S.E.2d 204, 207 (1988) (“The

commission cannot review a prior award in order to revise or modify it in regard to monies

paid.”); see also Linda D. Slough, Virginia Practice: Workers’ Compensation § 22:2 (2012-13)

(“If the employer could have suspended compensation earlier, but paid through the date of the

filing of the application, there is no provision for a credit for compensation paid during the

period in which it was not required.”). Further, Code § 65.2-708(A) specifically provides, “No

such review shall affect such award as regards any moneys paid except pursuant to [Code]

§§ 65.2-712, 65.2-1105, and 65.2-1205. . . .”3


       3
         Code §§ 65.2-712, -1105, and -1205 are not applicable in the case at bar. Code
§ 65.2-1105 covers payments made to an employer or carrier. Code § 65.2-1205 involves
employees compensated through the uninsured employers fund. Finally, Code § 65.2-712
provides that an employer may recover benefits paid if an employee fails to report his
incarceration or other changes in circumstances. However, the commission in this case found
                                              -5-
       “The general principle is well established that an employee becomes vested with the right

to receive workers’ compensation benefits under an award in his favor so long as the award

remains outstanding.” Uninsured Employer’s Fund v. Peters, 43 Va. App. 731, 736, 601 S.E.2d

687, 690 (2004). In the case at bar, an outstanding award entitled claimant to benefits.

Employer did not file an application for hearing until November 28, 2011.4 Thus, employer was

entitled to recover only those benefits paid after the date of the filing of the application.5

       Employer argues that claimant was unjustly enriched by payments made between March

2010 and November 21, 2011. If employer had brought a claim under Code § 65.2-712 alleging

that claimant failed to immediately report his incarceration, employer perhaps could have

received a credit for these payments. However, the commission in this case found that employer

was not entitled to a credit pursuant to Code § 65.2-712 because it did not allege that claimant

failed to report his incarceration. Employer did not appeal this determination, and it is therefore

final and binding upon us in the instant appeal.

       Finally, employer requests that this Court exercise its “equitable powers” to award

employer a credit for benefits paid beginning in March 2010. Employer also requested that the



that employer was not entitled to a credit pursuant to Code § 65.2-712 because it did not allege
that claimant failed to report his incarceration. Employer did not appeal this determination, and
it is therefore final and binding upon us in the instant appeal.
       4
          Employer’s other applications for hearing filed on October 6, 2010, and June 7, 2011,
were rejected by the commission because employer failed to provide any evidence that claimant
was imprisoned and had not provided notice of his change of address. Employer did not appeal
this determination. Because the commission fully resolved these earlier applications for hearing
and they are not before us on appeal, the only application for hearing relevant to the instant
appeal is employer’s November 28, 2011 application.
       5
          We recognize that the commission awarded employer a credit for benefits paid
beginning November 21, 2011, and not November 28, 2011, the date employer’s application for
hearing was filed. Because claimant did not appeal the commission’s award of a credit for
benefits from November 21, 2011, and in fact argued before the commission that the credit
should begin on November 21, 2011, any error in the commission’s use of this earlier date rather
than the date employer filed its application for hearing is not before us on appeal.
                                                 -6-
commission exercise its equitable powers to award employer the credit, and the commission

declined to do so. We too decline to exercise our equitable powers to award employer the credit.

See McFadden, 42 Va. App. at 309, 309 n.6, 591 S.E.2d at 711-12, 712 n.6.

       Because Code § 65.2-708 generally operates prospectively only and allows for a credit

only in a very limited set of circumstances not applicable in the instant case, the commission did

not err in refusing to grant employer a credit beginning in March 2010 for benefits paid to

claimant.

                                                                                         Affirmed.




                                               -7-
