Elbert Lee Spencer v Tarmac Mid-Atlantic, Inc.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
ELBERT LEE SPENCER
v. 	Record No. 2360-94-1 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
TARMAC MID-ATLANTIC, INC. 	OCTOBER 10, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
David L. Horne (Pender & Coward, on brief),
for appellant.
F. Nash Bilisoly (R. John Barrett; Susan B. Potter;
Vandeventer, Black, Meredith & Martin, on brief),
for appellee.
Elbert L. Spencer (claimant) appeals from a decision of the
Workers' Compensation Commission (commission) that denied his
request that the commission require Tarmac Mid-Atlantic, Inc.
(employer) to pay a twenty percent penalty on compensation due
after being suspended during unsuccessful appeal processes. 	The
facts are not in dispute.
In March 1992, claimant sustained an injury while employed
by employer, which employer accepted as compensable. 	By
agreement, an award was entered in July 1992. 	In September 1993,
based on a report of Dr. Richard B. McAdam, employer applied for
a hearing alleging a change in medical condition and requesting
termination or temporary suspension of disability benefits. 	In
opposition to that request, claimant filed a written statement
____________________
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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and supporting documentation of his claim that benefits should
not be suspended.
The commission's claims division reviewed employer's
application for a hearing, found probable cause to place the case
on the hearing docket, and authorized the suspension of benefits
pending the hearing. 	Later in October 1993, before a hearing
could be held, claimant requested the full commission to review
the probable cause finding and suspension of benefits. 	The
deputy then removed the case from the hearing docket.
On December 1, 1993, the full commission denied claimant's
request and issued an opinion that preliminary evidence justified
suspension of benefits. 	On December 2, 1993, claimant filed a
request that the commission reconsider that opinion. 	On December
8, 1993, the commission issued a second opinion reversing its
December 1 decision. 	In the December 8 opinion, the commission
determined it had mistakenly believed that Dr. McAdam had been
claimant's treating physician. 	In fact, Dr. McAdam had
independently examined claimant for employer but had not seen
claimant in more than one and one-half years.
On January 4, 1994, employer filed a notice of appeal to the
Court of Appeals. 	Claimant moved to dismiss the appeal and on
April 8, 1994, pursuant to Code § 17-116.05, the Court of Appeals
held that the December 8, 1993 opinion of the commission was not
a final decision from which an appeal could be made. 	Within two
weeks of April 8, 1994, employer paid all compensation that had

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accrued from September 28, 1993, the date of its last payment.
Claimant then requested the commission to award him
attorney's fees and penalties of twenty percent on the
accumulated sums pursuant to Code § 65.2-524 which provides that
"[i]f any payment is not paid within two weeks after it becomes
due, there shall be added to such unpaid compensation an amount
equal to twenty percent thereof" (emphasis added). 	Employer
declined to pay these sums, asserting that payments had lawfully
been suspended pursuant to Rule 13(A) and Code § 65.2-706(C).
The full commission denied claimant's request for any assessment,
holding that the record failed to show that employer did not
institute the action without reasonable grounds or in bad faith.
Code § 65.2-706(C) provides that:
an appeal from the decision of the Commission
to the Court of Appeals, . . . shall operate
as a suspension of the award and no employer
shall be required to make payment of the
award involved in the appeal until the
questions at issue therein shall have been
fully determined in accordance with the
provisions of this title.
Appellant argues that suspension is not warranted because
the appeal was dismissed as prematurely filed. 	On the facts
contained in this record, we disagree and hold that compensation
that accrued after the employer filed its September 28, 1993
application did not become due until April 8, 1994, when this
Court issued its order dismissing the employer's appeal. 	Because
the employer paid all past due compensation within two weeks

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after April 8, 1994, the commission did not err in finding that a
twenty percent penalty was not due under Code § 65.2-524.
For these reasons, we affirm the commission's decision.
Affirmed.