                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


GLORIA ANN BLANKENSHIP
                                             MEMORANDUM OPINION*
v.   Record No. 2906-01-3                         PER CURIAM
                                                APRIL 2, 2002
TOTAL HOME CARE AND
 EMPLOYERS INSURANCE OF WAUSAU


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Gerald F. Sharp; Gerald F. Sharp, P.C., on
             brief), for appellant.

             (Michael F. Blair; Lisa Frisina Clement; Penn
             Stuart, on brief), for appellees.


     Gloria Ann Blankenship (claimant) contends the Workers'

Compensation Commission erred in finding that the deputy

commissioner's February 8, 2001 opinion, from which claimant did

not seek timely review, became final and, therefore, the

commission did not have jurisdiction to review that decision.

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 material facts are not in dispute.     On October 27,

2000, claimant filed a letter application seeking compensation

benefits for a March 15, 2000 injury by accident.     Claimant


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
alleged that her average weekly wage was $969.95.   On January

31, 2001, the parties filed a stipulated agreement with the

commission reflecting that claimant's average weekly wage was

$887.65.

     In a February 8, 2001 opinion, the deputy commissioner

relied upon the signed stipulations and awarded claimant

temporary total disability benefits from March 16, 2000 through

November 19, 2000, at the maximum compensation rate of $567,

based on the stipulated pre-injury average weekly wage of

$887.65.   The deputy commissioner also found that claimant

returned to light-duty work on November 20, 2000, earning an

average weekly wage of $680, and awarded her temporary partial

disability benefits at the weekly rate of $138.44, from November

20, 2000, and continuing.    The record shows that claimant

received notice of the February 8, 2001 opinion on February 12,

2001, and employer received notice of that opinion on February

9, 2001.

     On February 20, 2001, claimant filed a motion to withdraw

the stipulations and to reconsider her average weekly wage.     In

the motion, claimant's counsel stated:   "Mr. Blair and I are

trying to come to an agreement, but I was worried about the

twenty day appeal period."   However, claimant did not request

review of the February 8, 2001 opinion in her February 20, 2001

letter or at any other time.



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     In a February 20, 2001 letter to the parties, the deputy

commissioner responded as follows:

               Mr. Sharp has withdrawn claimant's
          agreement to the wage as stated in the
          February 8, 2001 agreement.

               The general rule is that stipulations
          are binding even if they are incorrect;
          however, the Commission has taken the
          position that questions regarding wages can
          be revisited so long as such is done in a
          timely manner. This is because the employer
          is in the best position to advise the
          Commission of the correct wage. Moreover,
          claimants are entitled to a correct
          calculation of the wage.

               We still have   the file. Since Mr.
          Sharp's request is   within 20 days, we have
          authority to amend   the wage. If you want us
          to do that, please   advise.

     In a February 22, 2001 letter, employer advised the

commission that it was making payments pursuant to the February

8, 2001 order.   In a March 6, 2001 letter, employer's counsel

advised the commission that "[s]ince the claimant has withdrawn

her agreement to the stipulation in this case, we are going to

suspend any further payment, since we are not under an order at

this point."

     In a March 16, 2001 letter to the parties' counsel, the

deputy commissioner informed them the February 8, 2001 opinion

had not been vacated.   In addition, he advised them that the

opinion had not been amended, because they had not advised him

of a new agreement regarding claimant's average weekly wage.




                               - 3 -
He further stated that since neither party had appealed the

February 8, 2001 opinion, it "is now final and binding."

     On March 23, 2001, claimant filed a request for review of

the deputy commissioner's March 16, 2001 "letter Opinion,"

taking exception to the finding that the February 8, 2001

opinion had not been vacated or appealed and was, therefore,

final and binding.

     The commission ruled that the deputy commissioner did not

err in failing to permit claimant to withdraw stipulations after

the February 8, 2001 opinion was issued; in finding that the

February 8, 2001 opinion was final and binding; and in ruling

that it did not have jurisdiction to review the case.    In so

holding, the commission found as follows:

               The claimant withdrew her stipulation
          as to her pre-injury average weekly wage
          after the Deputy Commissioner issued an
          Opinion in this matter. While we agree with
          the claimant's contention that the Deputy
          Commissioner had the authority to reconsider
          this issue, we also find that he had the
          authority to decline to change the wage
          absent agreement by both parties. However,
          the Deputy Commissioner has no jurisdiction
          over the case after the appeal period has
          expired. Furthermore, the Commission has no
          jurisdiction to review a case absent a
          timely filed request for Review.

               In this case, the claimant never filed
          a request for Review of the Deputy
          Commissioner's February 8, 2001, Opinion.
          The February 8, 2001, Opinion became final
          20 days after the parties received notice of
          the Opinion.



                              - 4 -
               The claimant's March 23, 2001, request
          for Review of the "letter Opinion issued by
          Deputy Commissioner Philip E. Burchett on
          March 16, 2001" is insufficient to convey
          jurisdiction to the Commission to Review any
          issue decided in the February 8, 2001,
          Opinion. In fact, the March 16, 2001,
          letter was not an Opinion. It merely
          conveyed information to the parties
          regarding the status of the case.

(Footnote omitted.)

     Code § 65.2-705(A) requires that an application for review

of a deputy commissioner's decision be filed with the commission

within twenty days from receipt of notice of an award sent

pursuant to Code § 65.2-704(A).    "'Absent . . . fraud or mistake

. . . , the decisions of the Commission or its deputy

commissioners from which no party seeks timely review are

binding upon the commission.'"     Sovran Fin. Corp. v. Nanney, 12

Va. App. 1156, 1160, 408 S.E.2d 266, 269 (1991) (quoting K & L

Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299,

302 (1985)).   Thus, absent a timely review request or an

allegation of fraud or mistake in the procurement of an award,

the commission loses jurisdiction over an award after twenty

days from the date of that award.        See McCarthy Elec. Co. v.

Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993).

     "[I]t [was] within the commission's discretion to

. . . examine the [letters] of the deputy commissioner . . . to

ascertain the result[s] intended," and we will not disturb the

commission's determination unless "arbitrary or capricious."


                                 - 5 -
Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 130,

510 S.E.2d 255, 260-61 (1999) (en banc).   In this case, the

commission examined the deputy commissioner's February 20, 2001

letter to the parties' counsel, and concluded he correctly

asserted that he had authority to amend the average weekly wage

or decline to do so, absent an agreement of the parties.    No

language in the February 20, 2001 letter indicated that the

deputy commissioner had vacated or withdrawn the February 8,

2001 opinion.   In addition, the commission examined the deputy

commissioner's March 16, 2001 letter and concluded that it did

not constitute an opinion, but merely conveyed information to

the parties regarding the status of the case.   The commission

recognized that the deputy "had no jurisdiction over the case

after the [twenty-day] appeal period . . . expired."

     Our review of the record discloses ample support for the

commission's interpretations of the deputy commissioner's

February 20, 2001 and March 16, 2001 letters, therefore, we

decline to disturb those findings on appeal.    Based upon those

findings, the commission did not abuse its discretion in

concluding that the deputy commissioner's February 20, 2001

letter did not vacate the February 8, 2001 opinion.    Thus, the

commission did not err in finding that claimant did not seek




                               - 6 -
timely review of that opinion, rendering it final and binding,

and that the commission had no jurisdiction over this matter.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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