James A. Robinson v Trego Stone Corp & NiagaraFire

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Moon,* Willis and Elder
Argued at Richmond, Virginia
JAMES A. ROBINSON OPINION BY
v. 	Record No. 0861-97-2 	JUDGE NORMAN K. MOON
NOVEMBER 25, 1997
TREGO STONE CORPORATION
and NIAGARA FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Brian J. Cuscé for appellant.
James G. Muncie, Jr. (Midkiff & Hiner, on
brief), for appellees.
James A. Robinson suffered a compensable injury in 1989.
The commission awarded him temporary total disability benefits in
1989 but suspended that award in 1991 because of his third-party
recovery. 	In 1996, Robinson applied for a new offset calculation
based on Code § 65.2-313. 	Code § 65.2-313 was enacted in 1994
and requires offset calculations and proportionate payments of
litigation expenses incurred in obtaining a third-party award
which suspends, in whole or in part, an employer's workers'
compensation obligations. 	Robinson noted that absent such
recalculation, he would not be entitled to additional payments of
the employer's pro rata share of his litigation expenses until he
has expended the entire third-party award. 	The commission found
that the 1991 order was final and thus rejected his application.
*When the case was argued Judge Moon presided. 	Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.

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We agree with the commission and affirm.
Modification of Final Orders
If an application for review of a final order of the
commission is not made within twenty days of the date of the
order, the commission has no jurisdiction to review the matter
unless the petitioning party alleges fraud or mistake in the
procurement of the award. 	McCarthy Electric Company, Inc. v.
Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing
Code § 65.2-705(A)). 	Because Robinson failed to meet this time
requirement and has not alleged fraud or mistake, the commission
correctly found that it lacked authority to modify the 1991
order.
Robinson contends that the legislature intended that Code
§ 65.2-313 be applied retroactively. 	We need not address that
issue because even if the statute could be applied retroactively,
it could not be used to modify the 1991 order because Robinson
failed to allege fraud or mistake. 	See Buenson Division,
Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734,
736 n.2 (1980) (noting that a new statute with retroactive
applicability cannot act to revive a "dead claim"); Dan River,
Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986)
(citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736
n.2).
Robinson suggests that we avoid this rule by considering his
request for a new offset calculation to constitute mere
enforcement, rather than modification, of the 1991 order. 	He

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further suggests that Code § 65.2-313 is procedural in nature,
and thus the time limit imposed by the rule does not apply. 	No
authority supports either suggested construction of the rule.
Affirmed.