                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Humphreys and Senior Judge Hodges


NEWPORT NEWS SHIPBUILDING AND
 DRY DOCK COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 2768-01-1                         PER CURIAM
                                                MARCH 5, 2002
DENNIS E. EMERSON


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Jonathan H. Walker; Mason, Cowardin & Mason,
             P.C., on briefs), for appellant.

             (Richard B. Donaldson, Jr.; Jones, Blechman,
             Woltz & Kelly, P.C., on brief), for appellee.


     Newport News Shipbuilding and Dry Dock Company (employer)

contends the Workers' Compensation Commission erred in (1)

finding that the pre-1998 version of Code § 65.2-520 limits

employer's recovery of any dollar for dollar credit for

voluntary payments to Dennis E. Emerson (claimant) made under

the federal Longshore and Harbor Workers' Compensation Act

(LHWCA); and (2) assessing a penalty pursuant to Code § 65.2-524

against employer for failure to make timely payment to claimant

pursuant to an outstanding award after it unilaterally ceased

such payments effective July 5, 2000.     Pursuant to Rule 5A:21,




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
claimant raises the additional question of whether employer must

repay immediately, and in a lump sum, all the payments withheld

from claimant in violation of Code § 65.2-520 as ordered by the

commission.    Upon reviewing the record and the parties' briefs,

we conclude that this appeal is without merit.    Accordingly, we

summarily affirm the commission's decision.    Rule 5A:27.

         The issues in this case are controlled by our recent

decision in Newport News Shipbuilding and Dry Dock Co. v.

Holmes, 37 Va. App. 188, 555 S.E.2d 419 (2001), wherein we

addressed a similar factual situation and issues similar to

those raised by employer in this appeal. 1

     In Holmes, we held as follows:

             Code § 65.2-520 facilitates an employer's
             right to collect LHWCA credits by
             "deductions" from compensation due an
             employee under the Act but expressly
             restricts such offsets to one-fourth of the
             "weekly payment." Code § 65.2-520 creates
             no alternative or exception to the
             collection mechanism to redress
             circumstances that may result in a
             diminished recovery by an employer.




     1
       We note employer's failure to cite the Holmes decision in
its opening brief, although this Court rendered that decision on
December 4, 2001, well before employer filed its opening brief
in this case on December 20, 2001. In addition, the law firm
representing employer in this case is the same law firm that
represented employer in Holmes.


                                 - 2 -
Id. at 192-93, 555 S.E.2d at 421-22. 2   We concluded that "the

commission properly limited employer's right of recoupment to

the method prescribed by Code § 65.2-520 and correctly assessed

a penalty on those benefit payments withheld contrary to

statute."   Id. at 194, 555 S.E.2d at 422.   Therefore, for these

reasons and those more fully set forth in Holmes, we affirm the

commission's decision.

     In his brief, claimant requested that we "uphold the

Commission's order and require Employer to pay immediately all

payments wrongfully withheld from Emerson, interest, and costs,

in addition to the assessed penalty."    Because the commission

ordered such relief in its September 24, 2001 opinion, which we

have affirmed, we need not address this issue.

                                                           Affirmed.




     2
       While we recognize that the pre-1998 version of Code
§ 65.2-520 applies to this case, the outcome, under our holding
in Holmes, is the same. As the commission found, the provisions
of the pre-1998 version of Code § 65.2-520 provided the only
method of recoupment for employer, requiring it to deduct
payments not due and payable when made, by shortening the period
during which compensation must be paid and not by reducing the
amount of the weekly payment. Employer did not follow the
method prescribed by the pre-1998 version of Code § 65.2-520 nor
did it follow the method prescribed after the 1998 amendment to
Code § 65.2-520. Rather, employer unilaterally ceased payment
under the commission's award of temporary total disability
benefits effective July 5, 2000, contrary to Code § 65.2-520.

                               - 3 -
