                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia


COLONNADES MARRIOTT SENIOR LIVING
and
CONTINENTAL INSURANCE COMPANY
                                         MEMORANDUM OPINION * BY
v.   Record No. 0761-97-2              JUDGE JERE M. H. WILLIS, JR.
                                            NOVEMBER 4, 1997
PRINCESS ELIZABETH DURDEN


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Roger L. Williams (Vasiliki Moudilos;
           Williams & Lynch, on brief), for appellants.

           Robert L. Flax for appellee.



     Colonnades Marriott Senior Living and Continental Insurance

Company (Colonnades) appeal from a decision of the Virginia

Workers' Compensation Commission granting temporary total

disability benefits to Princess Elizabeth Durden.    Colonnades

contends (1) that the commission erred in amending Durden's

average weekly wage, and (2) that no credible evidence supports

the commission's finding that Durden sustained a continuing

disability related to her original work-place injury.     We affirm

the commission's award.

                            I.   BACKGROUND

     On May 21, 1994, Durden, a registered nurse, injured her

right shoulder while moving a patient at Colonnades where she

worked on alternate weekends assisting patients with daily tasks
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and distributing medication, earning $134.08 per week.    She also

worked a full-time job at Region Ten Community Services (Region

Ten), earning $310.76 per week.   Her responsibilities at Region

Ten included ordering supplies, distributing medicine and

administering injections.

     On May 4, 1995, Durden sought temporary total disability

benefits from Colonnades.   The parties stipulated that her

average weekly wage was $134.08 and that she had sustained a

work-related injury to her right shoulder on May 21, 1994.     The

deputy commissioner held that Durden had sustained a compensable

injury and awarded her medical benefits.    However, because Durden

had missed only one day of work at Colonnades, the deputy

commissioner denied wage benefits.     See Code § 65.2-509.   The

deputy commissioner noted that:
          Although the claimant acknowledged she did
          not return to her employment at Colonnades
          following her work-related accident on May
          21, 1994, she was not scheduled on May 23 and
          24, 1994, and there is no claim that the
          employment at Region Ten is "similar,". . .
          to that which she was doing at Colonnades.


     The pain in Durden's right shoulder continued.    An August

12, 1994 patient record from Prompt Care noted that Durden had

experienced a resurgence of pain in her right shoulder, after

being free of pain for several weeks.    A February 23, 1995 office

report from The McKenzie Institute noted that Durden experienced

soreness, culminating in pain, in her left and right shoulders.

On March 6, 1995, Dr. S. Hughes Melton saw Durden for bilateral



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shoulder pain and wrote that her medical "history is rather

atypical and conflicting in nature."   On March 21, 1995, he noted

that Durden may have suffered from "sick building syndrome" and

fibrositis.   On May 8, 1995, Dr. Melton noted some improvement in

Durden's shoulder pain.

     A May 19, 1995 radiology report from the University of

Virginia Health Sciences Center noted bilateral degenerative

changes.   In a letter to Cynthia Rathgeb, a claims analyst,

Dr. Barbara S. True linked Durden's shoulder symptoms to

degenerative arthritis.
     On January 17, 1996, magnetic resonance imaging confirmed

the presence of a small subacromial osteophyte, which "may cause

impingement."   On January 19, 1996, Dr. Donald A. DeGrange

diagnosed impingement, noting in the record that Durden had

injured her right shoulder two years previously in a work-place

accident and had suffered intermittent pain which had increased

over the previous twelve months.

     On April 15, 1996, Durden underwent right shoulder

arthroscopy with arthroscopic subacromial decompression and

bursal debridement.   Following the surgery, she received physical

therapy, steroid injections and chiropractic treatment.

     On May 6, 1996, Durden sought temporary total disability

benefits due to a change in condition.   She also sought amendment

of her average weekly wage to include her earnings at both

Colonnades and Region Ten.   Pursuant to Durden's interrogatory




                               - 3 -
responses, the deputy commissioner limited the claim to a period

of disability from April 15, 1996 through May 25, 1996.

     Durden testified that she had injured her right shoulder in

1977 and in 1986.   Dr. Clair Tansey reported in an office note

following an October 23, 1986 visit that Durden experienced

continuous numbness over her right shoulder and intermittent pain

in her shoulder and fingers.

     Following an ore tenus hearing, the deputy commissioner held

on December 20, 1995 that Durden had sustained a continuing

disability and awarded her temporary total disability benefits.

He denied amendment of Durden's average weekly wage to include

her income from Region Ten, concluding that:
          [L]ack of knowledge of the law is not a
          mutual mistake of fact. The opportunity was
          available to address the similarity of
          employments [at the December 14, 1995
          hearing], and we do not find that because the
          request was not made such failure equates to
          either imposition or mutual mistake of fact.


     On review, the full commission affirmed in part, finding

that "the evidence sufficiently establishes disability related to

the industrial injury."    However, the commission reversed the

deputy commissioner's refusal to amend the average weekly wage,

deciding that:   "neither the parties nor the Commission may have

been aware that the claimant's wages at Region Ten could be

relevant to an award of compensation benefits which constitutes a

mutual mistake of fact."   Determining that the two employments

were "similar," the commission amended Durden's average weekly



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wage to include her earnings at Region Ten.




                              - 5 -
                      II.    AVERAGE WEEKLY WAGE

                                   A.

       Colonnades contends that the commission erred in amending

Durden's average weekly wage to include her earnings from Region

Ten.   It argues that the December 20, 1995 award is a binding

adjudication of the wage amount.

       In pertinent part, "average weekly wage" means:     "[t]he

earnings of the injured employee in the employment in which he

was working at the time of the injury during the period of

fifty-two weeks immediately preceding the date of the injury,

divided by fifty-two."      Code § 65.2-101(1)(a).   The determination

of the average weekly wage is a question of fact to be determined

by the commission, and that determination will not be disturbed

on appeal unless it is unsupported by credible evidence.       See

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441-42,

339 S.E.2d 570, 573 (1986) (determining future average weekly

wage question of fact).

       The parties' stipulation to Durden's average weekly wage

related to her earnings from Colonnades.     We have recognized the

value of stipulations and have noted that they "'save both time

and expense for the litigants and are to be encouraged and not

condemned.'"    Avon Products v. Ross, 14 Va. App. 1, 9, 415 S.E.2d

225, 229 (1992) (quoting Harris v. Diamond Construction Co., 184

Va. 711, 724, 36 S.E.2d 573, 579 (1946)).

       However:
            It seems to us that when the General Assembly


                                  - 6 -
             established the Industrial Commission for the
             summary disposition of cases arising out of
             industrial accidents, it intended that that
             tribunal should have jurisdiction to do full
             and complete justice in each case. It
             granted to the Commission the power and the
             authority not only to make and enforce its
             awards, but to protect itself and its awards
             from fraud, imposition and mistake.


Harris, 184 Va. at 720, 36 S.E.2d at 577.     Thus, while "[a]

compensation award is an adjudication of the entitlements and

obligations of the parties . . . [and as such] continues

according to its terms until it is modified or vacated," Rossello
v. K-Mart Corp., 15 Va. App. 333, 336, 423 S.E.2d 214, 216

(1992), the commission may vacate an award from which no party

sought timely appeal where the record discloses a mutual mistake

of fact.     See Butler v. City of Virginia Beach, 22 Va. App. 601,

604, 471 S.E.2d 830, 832 (1996).

        "In determining whether a mutual mistake of fact existed at

the time of the agreement, the inquiry is . . . whether each

party held the same mistaken belief with respect to a material

fact at the time the agreement was executed."     Collins v.

Department of Alcohol Beverage Control, 21 Va. App. 671, 681, 467

S.E.2d 279, 283 (1996), aff'd, 22 Va. App. 625, 472 S.E.2d 287

(1996).

        Durden and Colonnades agreed to an average weekly wage.

However, their stipulation contained a mutual misstatement of

fact insofar as it sought to establish Durden's total weekly

wage.    "The reason for calculating the average weekly wage is to




                                 - 7 -
approximate the economic loss suffered by an employee . . . when

there is a loss of earning capacity because of work-related

injury."     Bosworth v. 7-Up Distributing Co., 4 Va. App. 161, 163,

355 S.E.2d 339, 340 (1987) (emphasis in original).

     At the time of the first proceeding, only Durden's job with

Colonnades and her earnings therefrom appeared relevant.      Because

she sought no compensation for lost work at Region Ten, the

calculation of her economic loss excluded employment from which

she suffered no loss of employment.      The inference to be drawn

from the stipulation is that the parties intended to determine

only the wages relevant to that proceeding.     Had the parties been

aware that Durden would require surgery and would suffer loss of

earnings from Region Ten, their considerations would have been

different.     Cf. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App.

601, 615, 401 S.E.2d 200, 208 (1991) (holding that had the

commission been aware that its refusal to reopen the file would

forever preclude presentation of evidence, it might have reopened

the claim).    Thus, the evidence supports the commission's finding

that a mutual mistake of fact existed at the time the parties

agreed to the stipulation.

                                  B.

     Colonnades contends also that Durden's employment at

Colonnades and Region Ten was dissimilar.     Thus, Colonnades

argues that Durden's earnings from both employments may not be

aggregated in calculating the average weekly wage.     "The



                                 - 8 -
'dissimilar employment rule,' an interpretive rule adopted by the

commission, excludes wages earned in concurrent dissimilar

employment from an employee's 'average weekly wages.'"       City of

Fairfax v. Massey, 11 Va. App. 238, 239-40, 397 S.E.2d 679, 680

(1990) (citing Hudson v. Arthur Treachers, 2 Va. App. 323, 326,

343 S.E.2d 97, 99 (1986)).

     The commission found that Durden "utilizes essentially the

same nursing skills at both Colonnades and Region Ten, therefore,

the employments are similar."    Durden testified that she provided

patient care, distributed medications, administered insulin

injections and performed chart work at Colonnades.   At Region

Ten, she ordered supplies, distributed medications and

administered injections.   Occasionally, she would assist a

patient from the clinic to a chair.
     The findings of the commission, if based upon credible

evidence, are conclusive and binding upon this Court.       Morris v.

Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986).    Credible evidence supports the

commission's finding that Durden's employment at Colonnades and

her employment at Region Ten were similar.

                    III.     CHANGE IN CONDITION

     Colonnades contends that the commission erred in granting

Durden's application for a change in condition.    Colonnades

argues that no credible evidence supports the commission's

finding that Durden's disability is related to her work-place



                                 - 9 -
injury.

      On appeal, we view the evidence in the light most favorable

to the party prevailing below.     Crisp v. Brown's Tysons Corner

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).

"Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court."     Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991).     See Code § 65.2-706.   "The fact

that contrary evidence may be in the record is of no consequence

if there is credible evidence to support the Commission's

findings."     Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341

S.E.2d 824, 826 (1986).

     The evidence revealed that Durden suffered a work-place

injury.   As a result, she began experiencing steadily increasing

pain in her right shoulder.    While she suffered pain in her left

shoulder also, Durden attributed that pain to her inability to

use her right arm.    Following a number of treatment strategies

and diagnoses, magnetic resonance imaging displayed a bone

impingement.    The diagnosis of impingement syndrome was based

upon a medical history that included Durden's work-place injury.

     The commission's finding that the evidence established a

causal relationship between Durden's current disability and her

work-place injury is supported by credible evidence.    The

commission reviewed the evidence thoroughly.    It interpreted the

medical records and Durden's testimony to support her assertion



                                - 10 -
that she had suffered a change in physical condition caused by

her work-place injury.   Specifically, the commission found that:

 "The medical reports contain a consistent history of injury and




                              - 11 -
corroborate the claimant's testimony regarding persistent right

shoulder pain since the accident which necessitated surgery."

     The award of the commission is affirmed.

                                                Affirmed.




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