Opinion
Record No. 0601-93-4
September 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Michael W. Heaviside; Ashcraft Gerel, on brief), for appellant.
(Charles F. Midkiff; Midkiff Hiner, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Michael W. Clark contends that the commission erred in terminating his temporary total disability benefits upon a finding that he failed to inform his employer or its insurer of his return to work, change in employment status, and his increase in earnings in violation of Code § 65.1-100.3 (now Code § 65.2-712). Clark also contends that the payment of temporary total disability benefits after March 15, 1990 was at the peril of the employer/insurer.
On appellate review, the Court will construe the evidence in the light most favorable to the party prevailing below. R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[T]he findings of fact of the . . . commission will be upheld when supported by credible evidence."Fairfax County v. Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990) (citation omitted).
Code § 65.1-100.3 (now Code § 65.2-712) specifically provided at the time the claimant returned to work that:
So long as an employee receives payment of compensation under this act, such employee shall have a duty to immediately disclose to the employer and insurer, any return to employment or increase in his earnings. . . .
Effective July 1, 1991, this code section was amended to provide for notice to the carrier if the employer was insured or if self-insured, notice must be given to the self-insured employer.
Here, the commission terminated the open award of August 10, 1989 in view of Clark's earnings and his failure to advise the employer and carrier of these earnings. There is substantial credible evidence in the record to support the commission's decision.
The letter dated March 15, 1990 to the insurer from Clark's counsel merely notified it that Clark had attempted to return to work and earned income in 1989 totalling $6,345.47, earning $122.03 per week. The weekly wage reflected in the letter is in fact incorrect, as Clark only worked a portion of the year in 1989.
After this letter, the employer and insurer were not informed by Clark or anyone else that he continued to work as an independent contractor for National Elevator Inspection Services ("NEIS") through September 1990, earning $32,702.39, nor were they informed that he was hired as a full-time employee by NEIS as of September 1990 and earned $12,563.26 for the remainder of 1990, $47,330.55 for 1991, and had earned $36,350.47 as of August 21, 1992 for the 1992 year.
Clark admitted in his deposition that no notification of his earnings, change in employment status or change in earnings was ever given to his employer or the insurer from September 1990 through 1992. He admitted to earning the figures as reflected above in 1990, 1991 and 1992, and admitted to receiving $362.00 per week in compensation benefits during this time period.
Clark argues that the private investigator for the insurer knew he was working as early as September 1991, and therefore, benefits should not have been terminated. We find no merit in this argument. First, the record demonstrates that the private investigator was not able to confirm that Clark was, in fact, employed by NEIS until June 1992, shortly before the employer filed its application for hearing. Prior to June 1992, the record reflects only that some of Clark's neighbors suspected that he was working during the day. Moreover, Code § 65.1-100.3 (now Code § 65.2-712) places the burden upon the employee to immediately inform the employer and insurer of any return to work or increase in earnings. See Magic City Motor City Corp v. Helmick, 10 Va. App. 10, 12, 390 S.E.2d 1, 2 (1990). Once Code § 65.1-100.3 (now Code § 65.2-712) was enacted, the burden to monitor the employee's activity no longer fell upon the employer and insurer. Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.