                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia


TRACEY ANN LARKIN
                                         MEMORANDUM OPINION* BY
v.   Record No. 1992-01-1                 JUDGE RICHARD S. BRAY
                                            FEBRUARY 26, 2002
HOLIDAY INN EXECUTIVE CENTER AND
 HARTFORD ACCIDENT & INDEMNITY COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Robert J. Macbeth, Jr. (Jean M. McKeen;
          Rutter, Walsh, Mills & Rutter, L.L.P., on
          brief), for appellant.

          Adam S. Rafal (R. John Barrett; Vandeventer
          Black, LLP, on brief), for appellees.


     Tracey Ann Larkin (claimant) appeals the decision of the

Workers' Compensation Commission (commission) awarding Holiday

Inn Executive Center (employer) and Hartford Accident &

Indemnity Company (carrier) an overpayment credit for benefits

mistakenly paid to claimant.   Claimant contends the commission

erroneously (1) relied upon carrier's ledger system to calculate

the amount of overpayment, and (2) allowed recoupment of an

overpayment that resulted from carrier's unilateral mistake.

Finding no error, we affirm the commission.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.   We consider the evidence in the

light most favorable to the prevailing party below, employer in

this instance.   See R.G. Moore Bldg. Corp. v. Mullins, 10

Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

                                I.

     On August 2, 1991, claimant sustained a work-related injury

by accident.   Employer accepted the resulting claim, and

benefits for numerous periods of disabilities were subsequently

awarded by the commission.   On June 30, 1999, carrier filed an

"Application for Hearing" with the commission alleging an

increase in claimant's earnings and seeking attendant

modification of the outstanding award and related "credits."

Claimant did not contest a reduction of the award but disputed

carrier's entitlement to credits.    By opinion dated September 7,

1999, a deputy commissioner reduced the award but ordered

carrier to pay claimant $810.18 in "past due" benefits, plus a

twenty percent penalty.

     By letter dated September 9, 1999, carrier requested the

deputy to reconsider.   Alleging that "additional drafts in the

amounts of $24,655.40 and $3,326.83 were issued to the claimant"

by mistake, carrier moved the commission to direct claimant to

"return those sums immediately" and sought a "protective order"



                               - 2 -
preventing expenditure of the funds in the interim. 1   The deputy

denied relief, and carrier appealed to the full commission.

Upon review, the commission remanded the dispute to the deputy

for "determination of the amounts due and owing . . . claimant

under the outstanding Award, including any interest and

penalties that may have accrued," specifically directing the

deputy "to calculate the total amount of compensation paid . . .

claimant through September 2, 1999, . . . and to make any

appropriate findings based on the evidence."

     On March 8, 2000, the deputy conducted a further hearing on

remand.   Carrier introduced into evidence a "stack" of checks

purporting to establish benefits paid to and received by

claimant.   Alice Pleasant, carrier's "Claims Service

Representative" responsible for the disbursement of benefits to

claimant, testified that "a record of every check . . . issued

on [claimant's] file" was documented in the "payment activity

log," also in evidence.   Pleasant confirmed that, on June 30,

1999, she had erroneously issued two checks to claimant totaling

$27,982.23.   Upon discovery of the mistake, Pleasant had

immediately contacted claimant and her counsel, but the funds

were not returned to carrier.



     1
       Claimant did not dispute the deputy's original ruling and
objected to carrier's motion, although she expressly
acknowledged "the Commission can . . . issue a credit for the
amount of any established overpayment upon application by the
employer and carrier for such credit."

                                - 3 -
     By opinion dated October 11, 2000, the deputy found

          from the evidence presented that the carrier
          paid benefits totaling $57,197.46 for the
          period in question. . . . This is evident
          from payment logs kept by Ms. Pleasant. The
          parties have agreed that the claimant was
          owed $27,467.91 for this period. . . .
          Thus, we find that there has been an
          overpayment in the amount of $29,729.55.

Claimant requested review by the full commission, challenging

"the computations made by the [d]eputy [c]ommissioner in

determining the amount of overpayment" and contending carrier

"is not entitled to a credit for a unilateral overpayment,

whatever the amount, which is entirely its error."

     Upon review, the commission, by opinion dated June 25,

2001, determined "the record does not support the [d]eputy

[c]ommissioner's conclusion that the parties stipulated that the

claimant was due $27,467.91."   Finding "the [d]eputy

[c]ommissioner failed to calculate the amount due" in accordance

with the remand order, the commission computed "claimant was due

$27,467.91 plus an additional $1024.68 . . . , [but] was paid

$57,197.46."   Accordingly, the commission awarded employer "a

credit in the amount of the overpayment, $28,704.87."    To

provide recoupment to carrier, the commission ordered reduction

of "the amount of claimant's weekly payment by one-fourth, . . .

$27.00 each week," pursuant to Code § 65.2-520.   Claimant

appeals to this Court.




                                - 4 -
                                  II.

        Claimant first contends the commission's "fact finding"

erroneously "accept[ed] the ledger of the [carrier] . . . where

the cross-examination . . . clearly established that multiple

and repeated uncorrected and unexplained errors were made in the

log."

        Factual findings by the commission supported by credible

evidence are conclusive and binding upon this Court.       Rose v.

Red's Hitch & Trailer Serv., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990).    "In determining whether credible

evidence exists, [this Court will] not retry the facts, reweigh

the preponderance of the evidence, or make its own determination

of the credibility of the witnesses."     Wagner Enterprises, Inc.

v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

        In adjudicating claimant's appeal, the commission concluded

that

             claimant had the opportunity at the hearing
             to challenge the accuracy of the carrier's
             records and cross-examined Alice Pleasant.
             The claimant presented no factual evidence
             that refuted Pleasant's testimony or
             impeached the accuracy of the carrier's
             ledger system. The Deputy Commissioner
             correctly found that any reference to
             payment or permanent partial disability was
             irrelevant to the period in question.
             Pleasant also adequately explained the
             errors and showed how the errors were
             corrected by subsequent checks.

Thus, the commission relied upon the ledgers, together with the

testimony of Pleasant and related evidence, to establish an

                                 - 5 -
overpayment credit due carrier, a factual finding supported by

the record.

                              III.

     Claimant next complains the commission erroneously

permitted carrier to recover an overpayment that resulted from

carrier's "unilateral mistake."

     Code § 65.2-520 provides, in pertinent part, that

          [a]ny payments made by the employer to the
          injured employee during the period of his
          disability, or to his dependents, which by
          the terms of this title were not due and
          payable when made, may, subject to the
          approval of the Commission, be deducted from
          the amount to be paid as compensation
          provided that, in the case of disability,
          such deductions shall be made by reducing
          the amount of the weekly payment in the
          amount not to exceed one-fourth of the
          amount of the weekly payment for as long as
          is necessary for the employer to recover his
          voluntary payment.

In Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 470

S.E.2d 574 (1996), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997), we

determined "an employer is entitled to a credit for any

'voluntary payment' it may have made to the employee.    As

defined by the statute, a payment is 'voluntary' if it was not

'due and payable' by 'the terms of this title' when made."

Id. at 405, 470 S.E.2d at 578-79.

     Here, the overpayments were properly deemed "voluntary" by

the commission because, when paid and received, the monies were

not "due and payable" to claimant under "the terms of" the


                              - 6 -
Workers' Compensation Act.   See Code § 65.2-520.   Thus, carrier

is entitled to recoupment, and the commission properly

"reduc[ed] the amount of claimant's weekly payment by

one-fourth" 2 pursuant to Code § 65.2-520.

     Accordingly, the commission correctly calculated the

overpayments in issue and ordered a recovery in accordance with

statute, and we affirm the decision.

                                                    Affirmed.




     2
       In distinguishing the instant record from an unpublished
opinion of this Court cited by claimant, the commission found
the overpayment error in issue here was "obvious" to claimant,
known by her when the "checks were sent" and, therefore, not a
"unilateral" mistake.

                               - 7 -
