                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia


JERRY GILBERT DODSON
                                         MEMORANDUM OPINION* BY
v.   Record No. 0278-99-1                 JUDGE ROBERT P. FRANK
                                             AUGUST 10, 1999
NEWPORT NEWS SHIPBUILDING AND
 DRY DOCK COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Richard B. Donaldson, Jr. (Kevin W. Grierson;
           Jones, Blechman, Woltz & Kelly, P.C., on
           brief), for appellant.

           Benjamin M. Mason (Mason & Mason, P.C., on
           brief), for appellee.


     Jerry Gilbert Dodson (appellant) appeals the December 17,

1998 decision of the Virginia Workers’ Compensation Commission

(commission).   On appeal, he asserts that the commission erred

in finding that Newport News Shipbuilding and Dry Dock Company

(employer) properly took credit for payments it made under the

Longshore and Harborworkers’ Compensation Act (LHWCA) against

its liability under the Virginia Workers’ Compensation Act

(Act).   We agree with appellant and reverse the decision of the

commission and remand for determination of the penalty under

Code § 65.2-524.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   BACKGROUND

     Appellant was employed by Newport News Shipbuilding and Dry

Dock Company on August 11, 1993 when he injured his left knee.

The employer accepted appellant’s claim for benefits under the

federal LHWCA, and appellant received payments under the LWHCA

for permanent partial disability until October 29, 1996.     On May

3, 1995, appellant received a permanent partial disability

rating for his left leg, which entitled him to 144 weeks of

compensation under the LHWCA and 87.5 weeks of compensation

under the Act, a difference of 56.5 weeks.     The employer paid

the 144 weeks of permanent partial disability benefits under the

LHWCA from May 3, 1995 through January 19, 1998.

     On January 15, 1998, the commission affirmed the deputy

commissioner’s award of temporary total disability benefits

under the Act beginning April 1, 1997.      The award stated that

the employer would receive credit for any payments it made

pursuant to the LHWCA.   The employer did not begin making

payments pursuant to the award under the Act until May 2, 1998,

the date the employer asserts that its credit for 56.5 weeks

under the LHWCA was exhausted.

     By opinion dated December 17, 1998, the commission ruled

that Code § 65.2-520 does not dictate the manner in which the

employer can take its credit for payment under the LHWCA against

its liability under the Act and, therefore, the employer

properly took its credit for 56.5 weeks by suspending benefits

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from the date payment was to begin under the Act until the

expiration of 56.5 weeks.

                            II.   ANALYSIS

       Appellant challenges the commission’s holding that

Code § 65.2-520 does not dictate the manner by which the

employer may take its credit for payments under the LHWCA

against its liability under the Act.    We agree with appellant

and reverse and remand the case to the commission for

determination of the penalty against the employer.

       Appellant concedes that the employer is entitled to a

dollar-for-dollar credit for the amount the employer paid under

the LHWCA that exceeded the employer’s responsibility under the

Act.   Therefore, we only consider whether the pre-1998 version

of Code § 65.2-520 permits the employer to apply its credit for

payments under the LHWCA at the beginning of the period during

which appellant should have received payment under the Act.

       “This Court is not bound by the legal determinations made

by the commission.   ‘[W]e must inquire to determine if the

correct legal conclusion has been reached.’”    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) (citation omitted),

aff’d, 245 Va. 337, 428 S.E.2d 905 (1993)).    “‘The construction

afforded a statute by the public officials charged with its

administration and enforcement is entitled to be given great

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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) (citation

omitted)).    “This Court should withhold deference only ‘[w]hen

[the commission’s] statutory interpretation conflicts with the

language of the statute or when the interpretation has not been

consistently and regularly applied.’”     Id. at 232-33, 450 S.E.2d

at 393 (quoting Commonwealth v. May Bros., Inc., 11 Va. App.

115, 119, 396 S.E.2d 695, 697 (1990) (citation omitted)).

        The pre-1998 version of Code § 65.2-520 stated in pertinent

part:

             Any 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 shortening
             the period during which compensation must be
             paid and not by reducing the amount of the
             weekly payment.

        In its opinion, the commission held that the employer was

entitled to take its credit at the beginning of the payment

period under the Act because the employer “would never realize a

credit for the excess payments made under the LWHCA” if the

employer was required to wait until the end of the payment

period to recoup the credit.    The commission distinguished its

holding in Cline v. Dana Corporation, VWC 181-38-99 (November


                                  -4-
24, 1997), where it held that an employer only could recoup

overpayment by shortening the payment period pursuant to

Code § 65.2-520.   The commission distinguished Cline on the

basis that 1) the overpayment in Cline was the result of a

unilateral mistake by the employer and 2) that the claim in

Cline did not involve recovery under the laws of more than one

jurisdiction.

     We disagree with the commission’s analysis of Cline.

Code § 65.2-520 does not distinguish between types of “voluntary

payments.”   The statute states that any payment is voluntary

which “by the terms of this title were not due and payable when

made.”   In its opinion, the commission attempts to create

categories of “voluntary payments” by stating that the

voluntariness of an overpayment by an employer is of a different

character than payments required under the law of a different

jurisdiction.   We find no basis for the commission’s holding in

the language of Code § 65.2-520.      We, therefore, hold that the

definition of “voluntary payments” includes any type of payment

not required under the Act, whether the payment is an

overpayment as a result of a mistake by the employer or a

payment of benefits pursuant to another statute.

     The commission’s concern with the “strong underlying policy

to prevent double recovery when claims are made under the laws

of more than one jurisdiction” is misplaced.     The legislature,

which establishes public policy for the Commonwealth, has

                                -5-
clearly stated in Code § 65.2-520 that in the case of

disability, the recoupment of voluntary payment by the employer

must be accomplished “by shortening the period during which

compensation must be paid and not by reducing the amount of

weekly payments.”   The commission relies on Virginia

International Terminals v. Moore, 22 Va. App. 396, 470 S.E.2d

574 (1996), aff’d, 254 Va. 46, 486 S.E.2d 528 (1997), in support

of a strong public policy against double recovery by an injured

employee.   While Moore states that there is an intent for an

employee not to be awarded a double recovery, Moore does so in

the context of allowing the employer a dollar-for-dollar credit

under Code § 65.2-520.   See id. at 403-04, 470 S.E.2d at 577-78.

Nowhere does Moore suggest that the policy against double

recovery overrides the clear statutory directive in Code

§ 65.2-520 as to how an employer’s credit is to be taken.    We

hold, therefore, that despite public policy against double

recovery, Code § 65.2-520 explicitly directs the employer to

take any credit due as a result of “voluntary payments” by

shortening the period during which the payments are to be made,

not by reducing the weekly amount of the payment.   In this case,

the employer took its credit by reducing the weekly payment to

zero for 56.5 weeks.   Only at the conclusion of the 56.5 weeks,

did the employer begin weekly payments to appellant.    We find

that the employer improperly applied its credit pursuant to Code

§ 65.2-520, and require it to pay the twenty percent penalty

                                -6-
provided for in Code § 65.2-524 for payments not paid within two

weeks of becoming due.

                         III.   CONCLUSION

     For these reasons, we hold that the commission erred in

holding that the employer properly applied its credit pursuant

to Code § 65.2-520.   We reverse the decision of the commission

and remand for determination of the penalty under Code

§ 65.2-524.

                                             Reversed and remanded.




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