                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


E.I. DuPONT De NEMOURS AND COMPANY
                                            MEMORANDUM OPINION* BY
v.   Record No. 2648-00-2                JUDGE JERE M. H. WILLIS, JR.
                                                 JULY 3, 2001
BRENDA G. EGGLESTON


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Joy C. Fuhr (Stephen D. Busch; Kimberly R.
          Hillman; McGuireWoods, LLP, on briefs), for
          appellant.

          Wesley G. Marshall for appellee.


     On appeal from a decision of the Virginia Workers'

Compensation Commission, E.I. DuPont De Nemours and Company

(DuPont) contends that the commission erred in refusing to

charge against the 500 week maximum limits of her carpal tunnel

syndrome and right shoulder injury awards the number of weeks

that Brenda G. Eggleston received benefits under her August 25,

1994 award for disability resulting from gamekeeper's thumb.         On

cross-appeal, Eggleston contends that the commission erred in

terminating her gamekeeper's thumb award, thereby reducing her

temporary total disability compensation rate.        We affirm the

commission's decision.


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

     Eggleston sustained three separate injuries while working

for DuPont and received three awards.    She was awarded benefits

for bilateral carpal tunnel syndrome with a communication date

of September 28, 1989.   Temporary total benefits were paid her

at the rate of $306.18 for September 19, 1990 through October

30, 1990.   Permanent partial benefits were paid from January 30,

1992 through July 29, 1992.

     Eggleston's second injury, sustained on November 28, 1990,

was to her right shoulder.     She received temporary total

benefits at the rate of $293.90 from January 12, 1991 through

January 14, 1991, and from September 27, 1991 through November

2, 1992.

     Eggleston's third award was for bilateral gamekeeper's

thumb with a communication date of March 9, 1993.    She received

temporary partial benefits at the rate of $74.35 from June 13,

1993 to November 30, 1993, based upon an average weekly wage of

$557.53.

     On December 8, 1993, shortly after benefits ended for the

third award, Eggleston filed a change-in-condition application.

She alleged that she was fired while doing light duty work.   The

deputy commissioner found that she was disabled from all three

conditions and entered an award for ongoing temporary total

disability benefits beginning August 25, 1994, using the average


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weekly wage from the gamekeeper's thumb disability of March 9,

1993.

        On February 3, 1999, DuPont filed a change-in-condition

application, with an attached memorandum, seeking "to reduce the

amount of temporary total disability benefits being paid to

[Eggleston] and to award [DuPont] a credit against future

payments."    DuPont stated that it filed the application (1) to

terminate Eggleston's award for bilateral gamekeeper's thumb,

(2) to reduce the amount of temporary total disability benefits

based upon the resolution of the gamekeeper's thumb, (3) to

receive credit against future temporary total disability

benefits paid Eggleston based on overpayment of benefits from

October 22, 1997, the date the gamekeeper's thumb resolved, to

February 17, 1999, the date DuPont reduced the amount of

benefits pursuant to its application, and (4) to receive credit

against future temporary total disability benefits paid

Eggleston based upon time worked by her at light duty at her

normal pre-injury wages.    DuPont also contended that Eggleston's

maximum entitlement to benefits for each individual injury

should be reduced by the number of weeks that she received

benefits under the August 25, 1994 award.

        The deputy commissioner held that DuPont was entitled to a

reduction of the temporary total disability award due to

resolution of Eggleston's gamekeeper's thumb.    He further held


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that DuPont's payments under the August 25, 1994 award did not

entitle it to a reduction in Eggleston's potential terms of

compensation relating to her remaining disabilities.    Finding

that the August 25, 1994 award, though reciting disability from

all three conditions, was tied to the gamekeeper's thumb

disability, he noted that the Workers' Compensation Act "does

not provide for counting simultaneous payments, resulting from

separate injuries, as more than one week of disability benefits

against the maximum allowable period of 500 weeks."

     The full commission affirmed.

                II.   CREDIT AGAINST 500 WEEK MAXIMUM

     DuPont contends that it is entitled to credit the number of

weeks that Eggleston received benefits under her August 25, 1994

award against the 500 week maximum compensation terms relating

to the carpal tunnel syndrome award and the right shoulder

injury award.   We disagree.

          "[T]he right to compensation under the
          workmen's compensation law is granted by
          statute, and in giving the right the
          legislature had full power to prescribe the
          time and manner of its exercise. When the
          legislature has spoken plainly it is not the
          function of courts to change or amend its
          enactments under the guise of construing
          them. The province of construction lies
          wholly within the domain of ambiguity, and
          that which is plain needs no
          interpretation."




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Dan River, Inc. v. Adkins, 3 Va. App. 320, 328, 349 S.E.2d 667,

671 (1986) (quoting Winston v. City of Richmond, 196 Va. 403,

407-08, 83 S.E.2d 728, 731 (1954)).

     Code § 65.2-518 provides:

          The total compensation payable under this
          title shall in no case exceed the result
          obtained by multiplying the average weekly
          wage of the Commonwealth as defined in
          § 65.2-500 for the applicable year by 500,
          except in cases of total permanent
          incapacity as defined in § 65.2-503 and in
          cases of permanent disability under
          subdivision A 4 of § 65.2-504 and death from
          coal worker's pneumoconiosis under
          § 65.2-513.

     Code § 65.2-503(E)(2) states:

          Where compensation pursuant to this section
          is paid simultaneously with payments for
          partial incapacity pursuant to § 65.2-502,
          each combined payment shall count as two
          weeks against the total maximum allowable
          period of 500 weeks.

The Act makes no other provision for counting single payments,

resulting from separate disabling injuries, against more than

one term of eligibility.   Furthermore, the Act "should be

construed liberally in favor of the worker."   Bd. of Supervisors

v. Martin, 3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986)

(citation omitted).   Therefore, we agree with the commission and

hold that DuPont is not entitled to credit the number of weeks

that Eggleston received benefits under her August 25, 1994 award

against the 500 week maximum term limits relating to the carpal

tunnel syndrome award and the right shoulder injury award.

                                 - 5 -
Eggleston sustained three separate accidents for which she

received three separate awards.   She is entitled to receive up

to 500 weeks of benefits for each award.   The August 25, 1994

award was based on her gamekeeper's thumb.   Accordingly, the

commission properly concluded that a credit against the terms of

her other two awards was not due.

       III.   CHANGE IN CONDITION/GAMEKEEPER'S THUMB AWARD

     "General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground

of change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'"   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d

570, 572 (1986)).   Factual findings made by the commission will

be upheld on appeal if supported by credible evidence.    See

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

     In holding that DuPont proved that Eggleston's gamekeeper's

thumb had resolved by October 22, 1997, the commission found as

follows:

           [Eggleston's] treating doctor, Dr. Enrique
           Silberblatt reported [her] thumb condition
           had "resolved" by the October 22, 1997,
           examination. Dr. Murray Joiner, Jr., who
           examined [Eggleston] one and one half months
           later, also did not find the condition

                               - 6 -
            disabling. [Eggleston] did not receive
            treatment for her thumb condition for almost
            two years. When Dr. Silberblatt examined
            her one month before the hearing, his report
            from that examination did not state [she]
            was disabled.

                 The [d]eputy [c]ommissioner properly
            did not give decisional weight to Dr.
            Silberblatt's October 14, 1998, report in
            which he said [Eggleston] was disabled
            because Dr. Silberblatt had not recently
            examined [her] before he wrote that report.
            His last examination was the October 22,
            1997, examination during which he opined the
            condition had resolved.

     As fact finder, the commission was entitled to weigh the

medical evidence and to accept the reports and opinion of Dr.

Silberblatt, Eggleston's treating physician.   These support the

commission's finding that Eggleston's gamekeeper's thumb had

resolved.   Accordingly, that finding is conclusive and binding

upon us on appeal.    See id.

     We affirm the commission's decision.

                                                           Affirmed.




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