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Butler v. City of Virginia Beach

Court of Appeals of Virginia. Norfolk
Jun 18, 1996
22 Va. App. 601 (Va. Ct. App. 1996)

Summary

holding that doctrine does not apply if the imposition resulted from claimant's own act

Summary of this case from Corp. of President v. Gaskins

Opinion

Record No. 1919-95-1.

June 18, 1996.

Appeal from the Workers' Compensation Commission.

Ralph E. Lawrence, Virginia Beach, for appellant.

Charles B. Miller, Assistant City Attorney (Office of the City Attorney, on brief), for appellee.

Present: BAKER and ANNUNZIATA, JJ., and HODGES, Senior Judge.


Claimant, Regina Bossong Butler, appeals the Workers' Compensation Commission's refusal to vacate its award for permanent partial disability benefits and to enter an award for temporary total disability benefits. The permanent partial award was made pursuant to a memorandum of agreement prepared at claimant's request and signed by her, which terminated an earlier temporary total disability benefits award in her favor. Finding no error, we affirm.

The relevant facts are as follows. On February 2, 1988, claimant suffered a compensable injury by accident while working for employer, City of Virginia Beach. As a result, claimant received benefits for temporary total disability. A June 11, 1991 report from Dr. Paul J. Abbott, Jr. states that claimant had reached maximum medical improvement from her accident. Thereafter, on June 20, 1991, claimant, through counsel, asserted her right to compensation for permanent partial disability and requested employer to prepare an agreed statement of fact and supplemental memorandum of agreement. Employer prepared and claimant executed the agreed statement of fact and supplemental memorandum of agreement reflecting claimant's request for permanent partial compensation. The agreed statement of fact also provided that claimant's outstanding award for temporary total disability was terminated, based on claimant having reached maximum medical improvement on June 20, 1991.

Employer submitted the documents to the commission and, on September 9, 1991, the commission, acting in accordance with the agreed statement of fact, terminated temporary total disability payments and entered an award for permanent partial disability payments from June 20, 1991 until November 1, 1993. On November 2, 1993, claimant resumed temporary total disability benefits on a continuing basis.

On November 29, 1994, claimant filed an application for hearing asking that the commission's September 9, 1991 award for permanent partial disability be vacated and claiming entitlement to temporary total disability benefits for the period June 20, 1991 through November 2, 1993. The deputy commissioner refused to vacate the September 9, 1991 award. The full commission affirmed, finding no evidence of fraud, misrepresentation, or mutual mistake. The commission further stated that it "was not required to second guess claimant's counsel to determine whether the claimant was in fact no longer eligible for temporary total disability benefits."

On appeal, claimant argues that this Court should vacate the September 1991 award because: (1) benefits for permanent partial loss can be paid only when benefits for temporary total disability have ceased; (2) entry of the award was not in claimant's best interest; (3) no evidence proved that she intentionally and knowingly waived her right to temporary total disability benefits; and (4) the agreed statement of fact which prompted the award was incomplete.

The agreed statement of fact submitted to the commission failed to indicate that claimant had returned to work or that she was able to return to pre-injury work.

I

The commission's approval of a memorandum of agreement is binding, and "an award of compensation entered upon such agreement is as enforceable as an award entered in a contested proceeding." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 121, 348 S.E.2d 416, 419 (1986); see also Code § 65.1-93 (now Code § 65.2-701(A)). Application for full commission review of an award must be made within twenty days of its entry. Code § 65.1-97 (now Code § 65.2-705(A)). Absent clear and convincing evidence of fraud, misrepresentation, mutual mistake, or imposition the commission has no authority to vacate an award from which no party sought timely review. See Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 80, 367 S.E.2d 204, 207 (1988); Tucker, 3 Va. App. at 121, 348 S.E.2d at 419; K L Trucking Co. v. Thurber, 1 Va. App. 213, 218, 337 S.E.2d 299, 302 (1985); John Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697 (1985).

Here, claimant failed to seek timely review of the September 1991 award. Claimant contends, however, that the commission's decision should be reversed based on the doctrine of imposition. We disagree.

"[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 empowers the commission "to `do full and complete justice.'" Id. (quoting Avon, 14 Va. App. at 8, 415 S.E.2d at 229).

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. See Somers, 228 Va. at 734-35, 324 S.E.2d at 697; Odom, 20 Va. App. at 235, 456 S.E.2d at 143; Cheski v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). 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. Odom, 20 Va. App. at 235, 456 S.E.2d at 143.

Claimant's argument based on imposition is without merit. If the commission's actions created an imposition, it resulted from claimant's own act. The agreed statement of fact terminating her temporary total benefits and substituting permanent partial benefits was drawn at the direction of claimant's attorney and signed by claimant. Even if we accepted claimant's position that the commission's September 1991 award should not have been entered, any error on the part of the commission was invited by claimant.

Accordingly, the decision of the commission is affirmed.

Affirmed.


Summaries of

Butler v. City of Virginia Beach

Court of Appeals of Virginia. Norfolk
Jun 18, 1996
22 Va. App. 601 (Va. Ct. App. 1996)

holding that doctrine does not apply if the imposition resulted from claimant's own act

Summary of this case from Corp. of President v. Gaskins

noting that the doctrine of imposition allows the commission to do full and complete justice in cases when an employer or the commission uses superior knowledge or experience with the Act to unjustly deprive a claimant of warranted benefits

Summary of this case from Cochran Industries VA v. Meadows

explaining that imposition focuses on one party's use of superior knowledge of the Act or economic leverage to the detriment of the other party

Summary of this case from Dealer's Lot, Inc. v. Jenkins

explaining that the doctrine of imposition "focuses on . . . an unjust deprivation to the employee of benefits warranted under the Act"

Summary of this case from Dealer's Lot, Inc. v. Jenkins

noting that an imposition may occur when the claimant "naturally and reasonably relies" on the employer's acts "to his or her detriment"

Summary of this case from Dealer's Lot, Inc. v. Jenkins

refusing to apply the doctrine of imposition where the claimant failed to seek timely review of an award and the error the claimant complained of resulted from an agreement drafted and signed by the claimant

Summary of this case from Miller v. Potomac Hospital Found

declining to apply the doctrine of imposition where the imposition "resulted from claimant's own act"

Summary of this case from Burroughs v. Frederick County
Case details for

Butler v. City of Virginia Beach

Case Details

Full title:REGINA BOSSONG BUTLER v. CITY OF VIRGINIA BEACH

Court:Court of Appeals of Virginia. Norfolk

Date published: Jun 18, 1996

Citations

22 Va. App. 601 (Va. Ct. App. 1996)
471 S.E.2d 830

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