                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued by Teleconference


CORPORATION OF THE PRESIDENT
 NANE FREDERICKSBURG, VA and
 LUMBERMENS MUTUAL CASUALTY COMPANY
                                          MEMORANDUM OPINION * BY
v.        Record No. 2936-96-4         JUDGE JOHANNA L. FITZPATRICK
                                              JUNE 10, 1997
BONNIE C. GASKINS


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Lynne Jones Blain (Michelle P. Wiltshire;
            Morris & Morris, on brief), for appellants.

            Diane C.H. McNamara for appellee.



     On appeal from a decision of the Workers' Compensation

Commission, Corporation of the President Nane Fredericksburg, VA

and Lumbermens Mutual Casualty Company (collectively referred to

as "employer") contend that the commission erred in allowing the

amendment of the claimant's average weekly wage as previously

awarded.    For the following reasons, we affirm the commission's

decision.

                              BACKGROUND

     On August 30, 1993, Bonnie C. Gaskins (claimant) suffered a

compensable closed head injury, cervical injury, and brain

damage.    At the time of her injury, she was working as a

custodian for the Church of Jesus Christ of L.D.S. (Church).

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Also during this time period, claimant was employed as a

custodian by 1st Choice Commercial Cleaning, Inc. (1st Choice).

She returned to work at Church on September 11, 1993 but did not

resume working for 1st Choice.

     On January 24, 1994, claimant signed a memorandum of

agreement that awarded her temporary partial benefits based only

upon her wages from her employment with Church.   Shortly

thereafter, on January 25, 1994, claimant sent a letter to

employer "indicating that because of her head injury she was

incapable of signing the forms or understanding the financial

information."   Claimant contacted employer "[a]nd explained the

two jobs and [employer] said that the paperwork was incorrect.

And [claimant] followed up with a phone call and [employer] said

that she would discuss with [the case manager] the paperwork

being incorrect."   No one from the employer responded to

claimant's inquiries.
     At the hearing before the deputy commissioner, claimant

explained that when she signed the agreement she "didn't

understand what I was signing.   And I had contacted the people at

Workmans' Comp and explained to them that I did not understand it

and I followed up with a letter."    Claimant further testified

that she "knew as [she] got these benefits, each and every week,

that they did not include monies paid by 1st Choice Commercial

Cleaning . . ." and that as of January 1994, she "knew that the

paperwork was incorrect."




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     The commission approved the memorandum on January 31, 1995.

On January 4, 1996, claimant filed an application for a hearing

to amend the memorandum to include her earnings from 1st Choice

in the calculation of her average weekly wage.   It is undisputed

that her work for 1st Choice was similar employment and should

have been factored into the original payments.   A hearing

regarding claimant's application was held on May 3, 1996.

     Following the hearing, the deputy commissioner determined

that, despite her injury, claimant's request to amend was not

timely under the circumstances of the case.   The deputy

commissioner relied on the facts that claimant knew the figure

was wrong as early as January 1994, that she did not sign the

memorandum for a year after receiving it, that she was

represented by counsel, and that employer placed no undue

pressure on her to sign the memorandum.   The deputy commissioner

found no mutual mistake, fraud, or imposition, and denied

claimant's application to amend.
     The full commission reversed and allowed the amendment.     The

commission determined that:
          [I]n this case there was a mutual mistake.
          Because of her closed head injury, the
          claimant has suffered serious cognitive
          deficits and depression. She credibly
          testified that she advised the carrier that
          she was working two jobs, and yet the carrier
          neglected to follow up on this information.
          We do not find that the fact that the
          claimant had a lawyer when she filed the
          Memorandum in and of itself renders her
          application untimely.

               AMENDMENT OF CLAIMANT'S WEEKLY WAGE



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     Employer contends that the commission erred in deciding that

the evidence supported a finding of mutual mistake regarding

claimant's average weekly wage and in allowing amendment of the

award.   Additionally, employer argues in the alternative that

this is not a case where the doctrine of imposition should apply,

because employer did not "run afoul" of any statutory

requirements and it continued to pay claimant benefits in

accordance with the memoranda of agreement.   We agree that the

doctrine of mutual mistake does not apply in the instant case. 1

However, we find that credible evidence in the record supports

application of the doctrine of imposition.

     Findings of fact by the commission are conclusive and

binding on appeal if supported by credible evidence, even though

contrary evidence may exist in the record.    Russell Loungewear v.

Gray, 2 Va. App. 90, 341 S.E.2d 824 (1986).   When reviewing the

     1
      What constitutes a mutual mistake to qualify for rescission
of a contract is a mistake that is "common to both parties to a
transaction," consisting "either in the expression of their
agreement, or in some matter inducing or influencing the
agreement, or in some matter to which the agreement is to be
applied." Seaboard Ice Company v. Lee, 199 Va. 243, 252, 99
S.E.2d 721, 727 (1957). "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. Dept. of Alcoholic Bev. Con., 21 Va. App. 671, 681,
467 S.E.2d 279, 283 (1996), aff'd, 22 Va. App. 625, 472 S.E.2d
287 (1996).
     In the instant case, there was no mutual mistake. Claimant
testified that she knew the memorandum was "incorrect" when she
signed it, and that she knew that the average weekly wage
reflected only those earnings from her job at Church.




                                 4
factual findings of the commission on appeal, we "review the

evidence in the light most favorable to the prevailing party."

R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990).

        "[T]he concept known as 'imposition' . . . empowers the

commission in appropriate cases to render decisions based on

justice shown by the total circumstances even though no fraud,

mistake or concealment has been shown."     Odom v. Red Lobster
#235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting

Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225,

228 (1992)).
                  The doctrine focuses on an employer's or
             the commission's use of superior knowledge of
             or experience with the Workers' Compensation
             Act or use of economic leverage, which
             results in an unjust deprivation to the
             employee of benefits warranted under the Act
             . . . . Thus, this Court has found that the
             doctrine applies where, inter alia, the
             record shows a series of acts by the employer
             or the commission upon which a claimant
             naturally and reasonably relies to his or her
             detriment.

Butler v. City of Virginia Beach, 22 Va. App. 601, 605, 471

S.E.2d 830, 832 (1996) (citations omitted) (holding that doctrine

does not apply if the imposition resulted from claimant's own

act).

        The commission's finding that claimant's request to amend

the average weekly wage was timely is a finding of fact that is

conclusive and binding on appeal because it is supported by

credible evidence.     See Loungewear, 2 Va. App. at 92, 341 S.E.2d



                                   5
at 825.   The evidence shows that as early as January 1994,

claimant notified employer that she had been working a second job

of similar employment.    It is undisputed that employer failed to

respond to claimant's notification.   Additionally, claimant

testified that during this time, her ability to function was

significantly impaired by her closed head injury.   Medical

records confirm that claimant suffered from serious cognitive

deficits and depression that hindered her decision-making

abilities.
     Moreover, this evidence also supports the application of the

doctrine of imposition.   Although claimant notified employer of

her second job consisting of the same or similar employment,

employer failed to follow up on this information and to correct

the agreements to reflect these additional earnings.    Employer

admits that these earnings would have been included if requested

initially.   Employer's superior knowledge in the handling of

claims and its knowing failure to correct the error constitutes

an imposition on claimant.   This doctrine is particularly

applicable in the instant case, because claimant suffered from an

injury that impaired her cognitive and decision-making abilities.

     Accordingly, we hold that the commission correctly amended

the determination of claimant's wage.   Although the commission

erred in applying the doctrine of mutual mistake, we apply the

doctrine of imposition and arrive at the same result.    See
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,




                                  6
313 (1992) ("an appellate court may affirm the judgment of [the

commission] when it has reached the right result for the wrong

reason").   The decision of the commission is therefore affirmed.

                                                   Affirmed.




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