COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY MEMORANDUM OPINION* BY v. Record No. 1756-02-1 JUDGE ROSEMARIE ANNUNZIATA JANUARY 28, 2004 WILLIS M. RICHARDSON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Benjamin M. Mason (Mason, Mason, Walker, & Hedrick, on brief), for appellant.
Matthew H. Kraft (Gary R. West; Rutter, Walsh, Mills, & Rutter, on brief), for appellee.
Willis M. Richardson suffered a work-related injury in 1998 and was awarded temporary
total disability benefits. Newport News Shipbuilding subsequently filed a change-of-condition
application with the Workers’ Compensation Commission seeking to suspend the award of
compensation. It cited two grounds, claiming that Richardson had returned to his pre-injury
work and, in the alternative, that he had subsequently retired from employment. The deputy
commissioner found that Richardson’s retirement constituted a refusal of selective employment,
and benefits were terminated after January 29, 1999. The commission affirmed the deputy
commissioner’s decision, but modified it by ordering that employer pay benefits through January
15, 2001. This appeal followed. For the following reasons, we reverse the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. Factual and Procedural Background
Willis M. Richardson suffered a work-related injury and was awarded temporary total
disability benefits of $416.93 per week beginning January 7, 1998. Richardson returned to work
in the employer’s mailroom on December 10, 1998. He subsequently retired on January 1, 1999.
On January 29, 2001, the employer filed an Application for Hearing asserting a change in
condition. As grounds for its application, the employer argued that Richardson returned to work
on December 10, 1998 and that he voluntarily retired on January 1, 1999. Relying on Rule
1.4(C)(1) and its contention that Richardson had returned to work on December 10, 1998, the
employer paid benefits until January 29, 1999.
The deputy commissioner issued an opinion on November 26, 2001, and found that the
employer had made a bona fide job offer and that Richardson unjustifiably refused the offer of
selective employment by his voluntary retirement on January 1, 1999. The deputy commissioner
accordingly granted the employer’s January 29, 2001 application to terminate the prior award
and suspended benefits as of January 30, 1999.
Richardson requested review of the deputy commissioner’s November 26, 2001 opinion.
The issue before the full commission, as stated in their opinion letter of June 6, 2002, was the
deputy commissioner’s finding that “the claimant refused selective employment.” Upon review,
the full commission affirmed the deputy commissioner’s opinion that Richardson’s voluntary
retirement on January 1, 1999 constituted a refusal of selective employment because the job in
the mailroom was still available to him. However, the commission modified the deputy
commissioner’s award, which had suspended the payment of benefits as of January 30, 1999, and
ordered that employer pay benefits through January 15, 2001, citing Rule 1.4(C)(5). The
commission concluded that the employer failed to prove that Richardson had returned to
pre-injury work, as alleged, on December 10, 1998. It accordingly ordered that the employer
-2- was responsible for payment of benefits from January 30, 1999 to January 15, 2001 at the rate of
$416.93 per week. The commission determined the date upon which benefits were to cease by
applying Rule 1.4(C)(2), which provides that benefits shall terminate on the date a claimant
refuses selective employment or 14 days before the employer files its change-of-condition
application. In the instant case, the latter fact was found determinative because the commission
found the employer failed to prove claimant had returned to work.
The employer filed a Motion for Reconsideration asserting that it should only be required
to pay compensation through January 29, 1999 because Richardson returned to work in
December 1998. The commission agreed, vacated its June 6, 2002 opinion thirty-three days later
on July 9, 2002, and issued a three-page opinion on October 10, 2002, reversing its prior
decision. In its opinion, the commission found that Richardson had returned to his pre-injury
work on December 10, 1998 and that payments beyond January 29, 1999, the date of employer’s
last payment of benefits, were not warranted. Its order reflected those findings.
Conceding that the October 10, 2002 opinion of the commission was not timely issued,
and is therefore not valid, the employer focuses its appeal on the commission’s June 6, 2002
decision and asks that we reverse. Specifically, employer contends that the commission erred on
June 6, 2002 in finding that it failed to show that Richardson returned to work. We agree, and
for the following reasons we reverse.
II. Analysis
On appeal, we view the evidence in the light most favorable to Richardson as the party
prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990). We will not disturb factual findings of the commission if credible evidence supports
them, Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991), and we
construe the Workers’ Compensation Act liberally in favor of the employee. Chesapeake and
-3- Potomac Tel. Co. v. Williams, 10 Va. App. 516, 519, 392 S.E.2d 846, 848 (1990). Moreover,
the party moving for a review of an award on the ground of a change in condition carries the
burden to show such a change in condition by a preponderance of the evidence. Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986). In this case, the
employer carries that burden.
In determining that the employer failed to prove that claimant had returned to work, the
commission erred because it misapprehended the implicit findings of the deputy commissioner.
The issues before the deputy commissioner were two-fold. Employer sought termination of the
commission’s October 6, 1998 award of compensation to Richardson on the grounds that (1) he
had returned to his pre-injury work on December 10, 1998 and (2) that a bona fide offer of
employment was made which Richardson unjustifiably refused by retiring on January 1, 1999.
Richardson defended against the allegation that he refused selective employment, claiming that
the employer had not made a bona fide job offer to him because he had already notified
employer of his intention to retire. However, he never claimed that he did not “return to work”
within the meaning of Rule 1.4(C)(1). In fact, in its application for a hearing, employer indicated
that “employee returned to pre-injury work on 12/10/98.” This assertion was never contested at
the hearing. Thus, whether or not the employer failed to pay Richardson a salary equal to or
greater than claimant’s pre-injury wage was not in dispute. See Green v.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY MEMORANDUM OPINION* BY v. Record No. 1756-02-1 JUDGE ROSEMARIE ANNUNZIATA JANUARY 28, 2004 WILLIS M. RICHARDSON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Benjamin M. Mason (Mason, Mason, Walker, & Hedrick, on brief), for appellant.
Matthew H. Kraft (Gary R. West; Rutter, Walsh, Mills, & Rutter, on brief), for appellee.
Willis M. Richardson suffered a work-related injury in 1998 and was awarded temporary
total disability benefits. Newport News Shipbuilding subsequently filed a change-of-condition
application with the Workers’ Compensation Commission seeking to suspend the award of
compensation. It cited two grounds, claiming that Richardson had returned to his pre-injury
work and, in the alternative, that he had subsequently retired from employment. The deputy
commissioner found that Richardson’s retirement constituted a refusal of selective employment,
and benefits were terminated after January 29, 1999. The commission affirmed the deputy
commissioner’s decision, but modified it by ordering that employer pay benefits through January
15, 2001. This appeal followed. For the following reasons, we reverse the commission.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. Factual and Procedural Background
Willis M. Richardson suffered a work-related injury and was awarded temporary total
disability benefits of $416.93 per week beginning January 7, 1998. Richardson returned to work
in the employer’s mailroom on December 10, 1998. He subsequently retired on January 1, 1999.
On January 29, 2001, the employer filed an Application for Hearing asserting a change in
condition. As grounds for its application, the employer argued that Richardson returned to work
on December 10, 1998 and that he voluntarily retired on January 1, 1999. Relying on Rule
1.4(C)(1) and its contention that Richardson had returned to work on December 10, 1998, the
employer paid benefits until January 29, 1999.
The deputy commissioner issued an opinion on November 26, 2001, and found that the
employer had made a bona fide job offer and that Richardson unjustifiably refused the offer of
selective employment by his voluntary retirement on January 1, 1999. The deputy commissioner
accordingly granted the employer’s January 29, 2001 application to terminate the prior award
and suspended benefits as of January 30, 1999.
Richardson requested review of the deputy commissioner’s November 26, 2001 opinion.
The issue before the full commission, as stated in their opinion letter of June 6, 2002, was the
deputy commissioner’s finding that “the claimant refused selective employment.” Upon review,
the full commission affirmed the deputy commissioner’s opinion that Richardson’s voluntary
retirement on January 1, 1999 constituted a refusal of selective employment because the job in
the mailroom was still available to him. However, the commission modified the deputy
commissioner’s award, which had suspended the payment of benefits as of January 30, 1999, and
ordered that employer pay benefits through January 15, 2001, citing Rule 1.4(C)(5). The
commission concluded that the employer failed to prove that Richardson had returned to
pre-injury work, as alleged, on December 10, 1998. It accordingly ordered that the employer
-2- was responsible for payment of benefits from January 30, 1999 to January 15, 2001 at the rate of
$416.93 per week. The commission determined the date upon which benefits were to cease by
applying Rule 1.4(C)(2), which provides that benefits shall terminate on the date a claimant
refuses selective employment or 14 days before the employer files its change-of-condition
application. In the instant case, the latter fact was found determinative because the commission
found the employer failed to prove claimant had returned to work.
The employer filed a Motion for Reconsideration asserting that it should only be required
to pay compensation through January 29, 1999 because Richardson returned to work in
December 1998. The commission agreed, vacated its June 6, 2002 opinion thirty-three days later
on July 9, 2002, and issued a three-page opinion on October 10, 2002, reversing its prior
decision. In its opinion, the commission found that Richardson had returned to his pre-injury
work on December 10, 1998 and that payments beyond January 29, 1999, the date of employer’s
last payment of benefits, were not warranted. Its order reflected those findings.
Conceding that the October 10, 2002 opinion of the commission was not timely issued,
and is therefore not valid, the employer focuses its appeal on the commission’s June 6, 2002
decision and asks that we reverse. Specifically, employer contends that the commission erred on
June 6, 2002 in finding that it failed to show that Richardson returned to work. We agree, and
for the following reasons we reverse.
II. Analysis
On appeal, we view the evidence in the light most favorable to Richardson as the party
prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990). We will not disturb factual findings of the commission if credible evidence supports
them, Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991), and we
construe the Workers’ Compensation Act liberally in favor of the employee. Chesapeake and
-3- Potomac Tel. Co. v. Williams, 10 Va. App. 516, 519, 392 S.E.2d 846, 848 (1990). Moreover,
the party moving for a review of an award on the ground of a change in condition carries the
burden to show such a change in condition by a preponderance of the evidence. Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986). In this case, the
employer carries that burden.
In determining that the employer failed to prove that claimant had returned to work, the
commission erred because it misapprehended the implicit findings of the deputy commissioner.
The issues before the deputy commissioner were two-fold. Employer sought termination of the
commission’s October 6, 1998 award of compensation to Richardson on the grounds that (1) he
had returned to his pre-injury work on December 10, 1998 and (2) that a bona fide offer of
employment was made which Richardson unjustifiably refused by retiring on January 1, 1999.
Richardson defended against the allegation that he refused selective employment, claiming that
the employer had not made a bona fide job offer to him because he had already notified
employer of his intention to retire. However, he never claimed that he did not “return to work”
within the meaning of Rule 1.4(C)(1). In fact, in its application for a hearing, employer indicated
that “employee returned to pre-injury work on 12/10/98.” This assertion was never contested at
the hearing. Thus, whether or not the employer failed to pay Richardson a salary equal to or
greater than claimant’s pre-injury wage was not in dispute. See Green v. Warwick Plumbing &
Heating Corp., 5 Va. App. 409, 412-13, 364 S.E.2d 4, 6 (1988) (noting that this Court will not
consider an issue not brought before the commission for the first time on appeal). In short, that
Richardson “returned to work,” as required by Rule 1.4(C)(1), was not an issue at the deputy
commissioner’s hearing. The sole issue before the deputy commissioner was whether
Richardson’s return to work resulted from a bona fide job offer.
-4- The deputy commissioner found that the employer, on December 10, 1998, made a bona
fide job offer of selective employment to Richardson. It is uncontested that Richardson accepted
the offer of employment and began working in the employer’s mailroom. Even though employer
may have known about Richardson’s intent to retire, the deputy commissioner found that
Richardson failed to prove that employer would have withdrawn its offer of employment before
his retirement. The deputy commissioner further found that Richardson’s voluntary resignation
constituted an unjustified refusal of employment under Code § 65.2-510. He did not expressly
find that Richardson returned to work on December 10, 1998. However, the deputy
commissioner’s order implicitly resolved the question of Richardson’s return to work in favor of
the employer because he ordered payment suspended as of January 30, 1999, a date consistent
with such a finding. See Rule 1.4(C). That finding was supported by evidence that the offer of
selective employment was bona fide, that Richardson was employed in that position, and that
Richardson never contested that he “returned to work.” See Goodyear Tire & Rubber Co. v.
Harris, 35 Va. App. 162, 167-68, 543 S.E.2d 619, 621 (2001) (noting that we will not disturb
findings of the commission when supported by credible evidence). We accordingly find that the
full commission’s determination that employer failed to prove that Richardson returned to
pre-injury work was plainly wrong because it was not supported by any credible evidence. Id.
Richardson contends that our holding in Odin, Inc. v. Price, 23 Va. App. 66, 474 S.E.2d
162 (1996), requires employer to prove that claimant returned to work at a wage equal to or
greater than his pre-injury wage. Odin does not stand for that proposition. It stands only for the
proposition that employer must file a change-in-condition application or a statement of facts if it
suspends payments. In Odin, the employer terminated benefits under an outstanding award after
claimant returned to light-duty work at a wage lower than his pre-injury weekly wage. Id. at 69,
474 S.E.2d at 162. The employer did not file a change-of-condition application. Id. at 72, 474
-5- S.E.2d at 165. Nor did it file an Agreed Statement of Fact memorializing the return to work or
an employer’s application for hearing. Id. We found that the commission properly assessed a
penalty against employer for late payment of an award. Id. We also found that employer’s
reliance in Odin on Rule 1.4(C) was misplaced and that it could not justify its termination of
benefits on the date employee returned to light-duty work because the employer had never filed a
change-of-condition application alleging the return to work. “The plain language of Rule
1.4(C)(1) allows an employer to cease payment of compensation on the date an employee returns
to work only when the employer files an application alleging the employee returned to work.”
Id. at 71, 474 S.E.2d at 164.
Here, employer filed a change-of-condition application alleging claimant had returned to
work. The deputy commissioner implicitly found the evidence supported that allegation. In the
subsequent hearing before the commission, the record discloses no basis upon which it could
conclude that employer failed to prove Richardson returned to work. As such, the decision
reversing the deputy commissioner’s decision constitutes reversible error. See North v.
Landmark Communications, 17 Va. App. 639, 640, 440 S.E.2d 156, 156 (1994). We therefore
reverse the decision of the commission and remand for entry of an order consistent with this
opinion.
Reversed and remanded.
-6-