                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


CAROLYN R. MOORE
                                                MEMORANDUM OPINION *
v.   Record No. 3113-96-4                           PER CURIAM
                                                  APRIL 22, 1997
PRINCE WILLIAM COUNTY CIRCUIT COURT


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (Peter J. Jones, on briefs), for appellant.
            Appellant submitting on brief.
            (Sharon E. Pandak, County Attorney; M. Alice
            Rowan, Assistant County Attorney, on brief),
            for appellee. Appellee submitting on brief.



     Carolyn R. Moore appeals from a decision of the Workers'

Compensation Commission (commission) granting Prince William

County Circuit Court (employer) a credit against Moore's future

temporary partial disability benefits based upon the commission's

finding of a mutual mistake of fact, which resulted in double

recovery to Moore between March 9, 1995 and June 21, 1995.

Finding no error, we affirm.

     On January 31, 1992, Moore sustained an injury to her back,

hip and leg while working for employer as a data entry operator.

 Employer accepted the claim as compensable and paid various

periods of temporary total and temporary partial disability

benefits.   On June 29, 1995, employer filed an application

seeking a credit for overpayment of temporary partial disability

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
benefits.   Between March 9, 1995 and June 21, 1995, employer's

self-insurance administrator, Trigon Administrators ("Trigon"),

paid Moore $100.25 per week in temporary partial disability

benefits.   During the same period of time, employer paid Moore

her full wages. 1

     Based upon this record, the commission held that "the

receipt of benefits while receiving full salary was a mutual

mistake resulting in a double recovery and unjust enrichment."

Consequently, the commission awarded employer a credit for the

overpayment against Moore's future temporary partial disability

benefits.
     "'[T]he purpose of the Workers' Compensation Act is to

compensate injured workers for lost wages, not to enrich them

unjustly.'"   Collins v. Department of Alcoholic Beverage Control,

21 Va. App. 671, 678, 467 S.E.2d 279, 282 (1996).   The General

Assembly has granted "the Commission the power and authority not

only to make and enforce its awards, but protect itself and its

awards from fraud, imposition, and mistake."   Id. at 679-80, 467

S.E.2d at 283.

     In this case, the record established that the parties made a

significant mutual mistake of fact in paying compensation
     1
      Pursuant to an award dated November 28, 1995, which
memorialized various Supplemental Memorandum of Agreements
executed by the parties, Moore was to receive $100.25 per week,
during partial incapacity, from March 9, 1995 through June 30,
1995; $230.00 per week, during incapacity, from July 20, 1995
through July 20, 1995; and $86.18 per week, during partial
incapacity, beginning July 21, 1995.




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benefits to Moore pursuant to their executed agreements. 2      To

determine whether a mutual mistake occurred, we inquire "whether

each party held the same mistaken belief with respect to a

material fact at the time . . . [the payments were made and

received]."    Id. at 681, 467 S.E.2d at 283.   In this case,

employer and Trigon acted under the mistaken belief that Moore

was receiving payment from only one source, and Moore acted under

the mistaken belief that she was entitled to receive her full

wage and temporary partial disability benefits simultaneously

during the time period from March 9, 1995 through June 21, 1995.

 The mistake was mutual.
     As we stated in Collins, "[w]ithin the principles

established by statutes and the Supreme Court decisions, the

commission has '"jurisdiction to do full and complete justice in

each case."'   Justice is not attained by failing to correct

obvious mistakes or declining to place the parties in positions

which are in accord with the Act."    Id. at 681, 467 S.E.2d 283-84

(citations omitted).

     Accordingly, we affirm the commission's decision awarding

employer a credit for its overpayment of temporary partial

     2
      Although we find that the record supports the commission's
finding of a mutual mistake of fact, we point out that in Collins
we recognized that "[i]t is immaterial whether the mistake of
fact is mutual or unilateral; Harris [v. Diamond Constr. Co., 184
Va. 711, 720, 36 S.E.2d 573, 577 (1946),] holds that the
commission has the implied power to 'do full and complete justice
in each case,' including the power to vacate awards entered by
mistake." Collins, 21 Va. App. at 680, 467 S.E.2d at 283.




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disability benefits to Moore between March 9, 1995 and June 21,

1995.

                                                        Affirmed.




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Benton, J., dissenting.

     Based largely upon the reasoning set forth in my dissent in

Collins v. Department of Alcoholic Beverage Control, 21 Va. App.

671, 681-87, 467 S.E.2d 279, 284-87 (1996), I disagree with the

majority's holding in this case.       The commission's finding that a

mutual mistake occurred is not supported by the record.      Rather,

the evidence established that employer and Trigon mistakenly paid

Moore both temporary partial disability benefits and her full

wages during the same period of time.      The mistake was made by

employer and Trigon, not Moore.    Thus, it was unilateral.     See

id. at 684, 467 S.E.2d at 285.     Even if Moore labored under the

mistaken belief that she was entitled to both payments, a mutual

mistake nevertheless would not exist because Moore and the

employer did not share "the same mistaken belief."       Id. at 681,

467 S.E.2d at 283 (emphasis added).      In addition, as in Collins,

Moore "did nothing to aid or induce [employer's] mistake."         Id.

at 684, 467 S.E.2d at 285.   Moreover, no evidence proved that

Moore was guilty of fraud or misrepresentation.      Because the

record does not prove a mutual mistake of fact, I would reverse

the commission's decision.

     The deputy commissioner and the full commission did not

address employer's contention that Moore's receipt of

compensation benefits and full wages during the same time period

constituted an "increase in earnings," within the meaning of Code

§ 65.2-712, and that Moore had a duty to report the increase to



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employer.    This argument is without merit.   No evidence

established that Moore sustained an increase in earnings.

Rather, the evidence clearly showed that employer and Trigon,

through a unilateral mistake, paid Moore for the same period of

time.    A unilateral mistake is not sufficient to invoke the

remedy sought by employer in this case.     See Collins, 21 Va. App.

at 681-83, 467 S.E.2d at 284.

        For these reasons, I would reverse the commission's award.




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