COURT OF APPEALS OF VIRGINIA


Present:  	Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges


NEWPORT NEWS SHIPBUILDING
 AND DRY DOCK COMPANY
			MEMORANDUM OPINION*
v.	Record No. 1782-03-1	PER CURIAM
	DECEMBER 23, 2003
ELAINE LEONA BAILEY


	FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

		(Jonathan H. Walker; Mason, Mason, Walker & Hedrick, P.C., on 
brief), for appellant.

		(Matthew H. Kraft; Rutter Mills, L.L.P., on brief), for appellee.


	Newport News Shipbuilding and Dry Dock Company (employer) contends the Workers' 
Compensation Commission erred in refusing to (1) retroactively modify Elaine Leona Bailey's 
(claimant) open award of temporary total disability (TTD) benefits as of February 1, 2002, the 
date claimant returned to light-duty work, and allow employer a credit against future 
compensation; and (2) allow employer to take a credit pursuant to Code  65.2-520 for 
overpayments of compensation made to claimant from February 1, 2002 through October 17, 
2002.  Upon reviewing the record and the parties' briefs, we conclude that this appeal is without 
merit.  Accordingly, we summarily affirm the commission's decision.  Rule 5A:27.
	The facts are undisputed.  On December 20, 2001, a deputy commissioner awarded 
claimant medical benefits and TTD benefits beginning November 22, 2000 and continuing based 
upon a pre-injury average weekly wage of $553.79, with respect to her compensable 
occupational disease of bilateral carpal tunnel syndrome.  The full commission affirmed the 
deputy commissioner's award on September 16, 2002.
	On November 12, 2002, employer filed an application alleging claimant had returned to 
light-duty work on January 30, 2002 and seeking a "change of an outstanding award for 
temporary total or temporary partial."  The evidence showed that employer had paid TTD 
benefits to claimant through October 17, 2002, pursuant to claimant's open award.
	Claimant submitted wage information indicating that she earned a post-injury average 
weekly wage of $78.09, beginning February 1, 2002.
	The deputy commissioner ruled that employer was not entitled to retroactive modification 
of claimant's open award for TTD benefits because employer did not allege that claimant failed 
to report her return to work or any increase in earnings to employer.  The deputy commissioner 
concluded that employer was entitled to a modification of the TTD award to an award of 
temporary partial compensation as of October 18, 2002, the date that employer stopped paying 
TTD benefits to claimant. 
	The full commission affirmed the deputy commissioner's decision.  In so ruling, the 
commission found as follows:
[T]o be entitled to a credit pursuant to  65.2-520, an employer 
must show it made payments to the claimant which "were not due 
and payable when made."  Here, the claimant was under an open 
award for [TTD] compensation when she was paid temporary total 
benefits from February 1 through October 17, 2002.  Therefore, the 
payments, which were made to the claimant during this time 
period, were "due and payable when made" and  65.2-520 does 
not apply.
	Moreover, the Deputy Commissioner did not err when he 
concluded that he lacked the authority to retroactively modify the 
claimant's open award pursuant to Code  65.2-708 and 65.2-712 
since there is no evidence that the claimant misrepresented or 
failed to report her earnings.
(Footnote omitted.)
Retroactive Modification of Open TTD Award
	Code  65.2-712 provides in pertinent part as follows:
	So long as an employee . . . receives payment of 
compensation under this title, any such person shall have a duty 
immediately to disclose to the employer, when the employer is 
self-insured, or insurer in all other cases, any . . . return to 
employment [or] increase in his earnings . . . .  Any payment to a 
claimant by an employer or insurer which is later determined by 
the Commission to have been procured by the employee . . . by 
fraud, misrepresentation, or failure to report any . . . return to 
employment [or] increase in earnings . . . may be recovered from 
the claimant  . . . by the employer or insurer either by way of credit 
against future compensation payments due the claimant . . . or by 
action at law against the claimant  . . . .
	Here, employer made no allegation and presented no evidence that claimant failed to 
report a return to work or increase in earnings.  Thus, Code  65.2-712 was not applicable to 
allow a credit against future compensation for any benefits paid by employer from the date 
claimant returned to light-duty work until employer stopped paying benefits.  In addition, no 
language contained in this code section, Code  65.2-708, or Rule 1.4(C)(1) of the Rules of the 
Virginia Workers' Compensation Commission gives the commission the authority to 
retroactively modify an open award of compensation benefits under the facts of this case.
Code  65.2-520 Credit
	Code  65.2-520 provides as follows:
	Any payments made by the employer to the injured 
employee during the period of his disability, or to his dependents, 
which by terms of this title were not due and payable when made, 
may subject to the approval of the Commission, be deducted from 
the amount to be paid as compensation, provided that, in the case 
of disability, such deductions shall be made by reducing the 
amount of the weekly payment in an amount not to exceed 
one-fourth of the amount of the weekly payment for as long as 
necessary for the employer to recover his voluntary payment.
	During the period from February 1, 2002 through October 17, 2002, an open award order 
existed in favor of claimant, which required employer to make ongoing payments of TTD 
benefits to claimant.  Thus, during that time period, TTD benefits paid by employer were, by the 
terms of the Workers' Compensation Act, due and payable when made.  Accordingly, Code 
 65.2-520 was not applicable to allow a credit against future compensation in this case.
	For these reasons, we affirm the commission's decision.
Affirmed.
* Pursuant to Code  17.1-413, this opinion is not designated for publication.
  We note that employer does not challenge the commission's factual finding that 
employer stopped paying TTD benefits to claimant as of October 18, 2002.  Accordingly, that 
finding is binding and conclusive upon us on appeal.
 

 
 


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