Marchia L. Brackett v Chesapeake Public Schools,et

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MARCHIA L. BRACKETT .
MEMORANDUM OPINION
Vv. Record No. 0466-98-1 PER CURIAM
AUGUST 25, 1998
CHESAPEAKE PUBLIC SCHOOLS,
TRANSPORTATION DEPARTMENT
AND TRIGON ADMINISTRATORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.

(Bradford C. Jacob; Taylor & Walker, on
brief), for appellees.

Marchia L. Brackett contends that the Workers' Compensation
Commission erred in denying her request to penalize her employer,
Chesapeake Public Schools, Transportation Department, pursuant to
Code § 65.2-524. Brackett argues that the commission erred in
allowing employer a credit for voluntary payments made to
Brackett pursuant to employer's sick leave policy against
temporary total disability benefits owed to Brackett for the same
period of time under the commission's July 24, 1996 award. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.

The facts are not in dispute. Brackett sustained a

compensable injury while working for employer as a school bus

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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driver. 	Brackett filed an application seeking an award of
medical benefits and temporary total disability benefits.
Following an evidentiary hearing, the commission entered an award
in favor of Brackett, granting her temporary total disability
benefits from March 21, 1994 until March 27, 1994 and from March
9, 1995 until March 12, 1995. 	After deducting the statutory
seven-day waiting period under Code § 65.2-509, Brackett was
entitled to four days of benefits, totalling $64.43. 	Neither
party appealed the July 24, 1996 decision.
Alleging employer's failure to timely pay benefits, Brackett
filed a motion requesting that the commission assess a penalty
against employer pursuant to Code § 65.2-524. 	Brackett also
filed a motion for employer to show cause why it had not complied
with the commission's award.
The commission held a hearing on Brackett's motion for the
penalty. 	At that hearing, the parties stipulated that employer
paid Brackett her full wages for work absences from March 21,
1994 through March 27, 1994 under the terms of its sick leave
policy. 	The parties agreed that employer did not charge Brackett
with sick leave for those days. 	The parties also agreed that
employer paid Brackett her full wages for work absences from
March 9, 1995 through March 12, 1995 and that, although she was
initially charged with sick leave for those days, employer
reinstated Brackett's sick leave in August 1996 after the
commission's award was final.

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In denying Brackett's motion for a penalty, the commission
found as follows:
In this case, [Brackett] argues that the
employer waived its right to credit itself
with [Brackett's] reinstated sick leave and
is barred from raising the issue now because
it did not raise it at the compensation
hearing or appeal the compensation award.
However, as Dyson [v. Commonwealth of
Virginia Department of Transportation, 67
O.I.C. 237 (1988),] makes apparent, this is
not required by § 65.2-520. 	The Act also
does not require that the employer seek the
Commission's prior approval before crediting
itself. 	Such a requirement would discourage
and delay the voluntary payment of benefits
through salary continuation to employees.
(Footnote omitted.).
Citing Collins v. Dept. of Alcoholic Beverage Comm., 21 Va.
App. 673, 679-80, 467 S.E.2d 279, 282 (1996), the commission
ruled that it has "the power and authority not only to make and
enforce its awards, but to protect itself and its awards from
fraud, imposition and mistake." 	The commission further ruled as
follows: [E]mployer maintains that it did not know at
the July 23, 1996 hearing that [Brackett]
received her full wages during the disability
period. 	Paying the indemnity benefits
awarded by the Commission would result in
[Brackett] being paid twice. 	We disagree
with [Brackett's] argument that the
Commission lacks the authority to prevent
such unjust enrichment.
Under facts similar to this case, the commission held in
1988 that "payment of wages to the employee based upon sick or
annual leave may be credited to the employer under the provisions

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of § 65.1-72 [now Code § 65.2-520] when leave is reinstated."
Dyson, 67 O.I.C. at 239.
The construction afforded a statute by the
public officials charged with its
administration and enforcement is entitled to
be given great weight by a court. 	The
legislature is presumed to be cognizant of
such construction. 	When it has long
continued without change, the legislature is
presumed to have acquiesced therein.
Watford v. Colonial Williamsburg Found., 13 Va. App. 501, 505,
413 S.E.2d 69, 71-72 (1992).
Contrary to Brackett's assertions, the plain language of
Code § 65.2-520 does not require that an employer seek approval
from the commission before taking a credit for voluntary payments
made to a claimant. 	Moreover, as the commission correctly found,
Brackett would have been unjustly enriched with a double recovery
if employer was denied its right to take the credit. 	Under the
circumstances of this case, "'[i]mposition' . . . empower[ed] the
commission . . . to render [a decision] based on justice shown by
the total circumstances even though no fraud, mistake or
concealment [was] shown." 	Avon Prods., Inc. v. Ross, 14 Va. App.
1, 7, 415 S.E.2d 225, 228 (1992).
In light of the weight to be given to the commission's
construction of Code § 65.2-520 and the application of the
doctrine of imposition to this case, we hold that the commission
did not err in denying Brackett's motion for a penalty and in
allowing employer a credit.
For these reasons, we affirm the commission's decision.

Affirmed.
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