Opinion
Record No. 0429-92-1
September 22, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(P. Dawn Bishop; William Orr Smith Associates, on brief), for appellants.
(Mary G. Commander; Goldblatt, Lipkin Cohen, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The parties entered into a settlement agreement concerning an injury by accident sustained by Dianne Holley. A proposed order approving that agreement was endorsed by the parties and forwarded to the commission for entry. The order stated that a lump sum of $26,000 "will be paid upon approval of this settlement." The deputy commissioner approved the settlement and entered the order on July 17, 1991. The payment was not made until August 13, 1991, twenty-seven days later. Holley requested the penalty provided by Code § 65.2-524. The employer appeals the award of that penalty.
Code § 65.2-524 prescribes a penalty of twenty percent of any compensation "not paid within two weeks after it becomes due." The language of this statute is clear and unambiguous. See Weston v. B. J. Church Constr. Co., 9 Va. App. 283, 284, 387 S.E.2d 96, 96 (1989). The appellants contend that the order in this case did not specify a payment date, and thus, no penalty could be imposed as long as payment was made within a "reasonable time." See Koppers Co. v. Brockenborough, 225 Va. 58, 62, 300 S.E.2d 755, 757 (1983) (holding that the penalty provisions are "inapplicable to a lump-sum compromise settlement for which no payment date has been fixed in the approving order" and that the employer was entitled to a "reasonable time" after entry of the order to make payment).
We disagree with appellants' premise. In Weston, "[t]he draft order which set forth the settlement provided that payment would be due on the date that the Industrial Commission entered the order." 9 Va. App. at 284, 387 S.E.2d at 96. This Court held that the Weston order thus "did in fact state a date certain upon which payment was due." Id. at 285, 387 S.E.2d at 97. The order in this case states a date certain upon which payment is due, i.e., "upon approval of the settlement." The July 17, 1991 order stated: "The aforesaid settlement is hereby approved . . . ." Thus, the lump sum payment was due upon entry of the order, and the penalty provided by Code § 65.2-524 accrued two weeks later, July 31, 1991. The commission correctly held that payment was not timely made and that a penalty was due.
Affirmed.