                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Kelsey and Senior Judge Hodges


VIRGINIA INDUSTRIAL SERVICE AND
 CINCINNATI CASUALTY COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0653-03-3                         PER CURIAM
                                               AUGUST 19, 2003
KENNETH SCOTT MILLER


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Joseph C. Veith, III; Trichilo, Bancroft,
             McGavin, Horvath & Judkins, P.C., on brief),
             for appellants.

             (A. Thomas Lane, Jr., on brief), for
             appellee.


     Virginia Industrial Service and its insurer (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission erred in finding that Kenneth Scott Miller's

application seeking amendment of his pre-injury average weekly

wage was "seasonably presented."     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. 1


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Employer did not appeal the commission's finding that a
mutual mistake occurred justifying amendment of claimant's
average weekly wage. Accordingly, that finding is binding and
conclusive upon us on appeal.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     "[T]he . . . Commission has the implied power, incidental

to those expressly granted, to entertain and hear an

application, seasonably presented, to vacate and set aside an

award procured through fraud or mistake.    Whether an application

is seasonably made must necessarily depend upon the facts and

circumstances of the particular case."     Harris v. Diamond Const.

Co., 184 Va. 711, 721, 36 S.E.2d 573, 578 (1946).

     In ruling that claimant seasonably filed his application

seeking to amend his average weekly wage, the commission found

as follows:

          The claimant first received compensation
          under an Award on June 5, 2000, and did not
          seek to amend the average weekly wage until
          January 23, 2002. Even then the claimant
          did not know of his precise wages, asserting
          only that the original average weekly wage
          figure incorrectly did not include overtime.
          The employer did not complete a Wage Chart
          until April 2002.

               The claimant explained that he
          understood from the adjuster that overtime
          was not included in calculating his average
          weekly wage. Once he learned otherwise, in
          December 2001, he promptly filed the Claim
          to amend the figure. Under these
          circumstances, we believe that the Claim was
          seasonably made.

     Based upon claimant's testimony, the commission, in its

role as fact finder, could reasonably infer that claimant

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sufficiently explained his delay in making a request for an

amendment of his average weekly wage.    "Where reasonable

inferences may be drawn from the evidence in support of the

commission's factual findings, they will not be disturbed by

this Court on appeal."     Hawks v. Henrico County Sch. Bd., 7

Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).    Having accepted

the claimant's explanation as credible, the commission did not

abuse its discretion in concluding that his application was

"seasonably presented" under the facts and circumstances of this

case.     Harris, 184 Va. at 721, 36 S.E.2d at 578.

        Accordingly, we affirm the commission's decision.

                                                             Affirmed.




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