Charles Cross v Newport News Shipbuilding, etc.

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia

CHARLES CROSS

Vv. Record No. 1216-95-1 OPINION BY
JUDGE WILLIAM H. HODGES
NEWPORT NEWS SHIPBUILDING & JANUARY 16, 1996

DRY DOCK COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

John H. Klein (Rutter & Montagne, on brief), for
appellant.

Benjamin M. Mason (Mason & Mason, on brief), for
appellee.
Charles Cross ("claimant") appeals a decision of the

Workers' Compensation Commission granting the application of
Newport News Shipbuilding & Dry Dock Company ("employer") and
terminating claimant's award of benefits as of July 12, 1994.
Claimant contends that the commission improperly calculated the
500-week period of compensation available to him under the
Virginia Workers' Compensation Act ("the Act"). The commission
credited employer with the number of weeks for which claimant
received temporary total disability and permanent partial
disability benefits under the Longshore and Harbor Workers'
Compensation Act ("LHWCA") before the commission's December 16,
1991 award. For the following reasons, we affirm in part and
reverse in part.
I.
On December 11, 1984, claimant fractured his right leg while

working as a sandblaster for employer. He applied for and

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received 137.57 weeks of temporary total disability benefits
under the LHWCA from December 12, 1984 through August 2, 1987.
He also received 144 weeks of permanent partial disability
benefits based upon a 50% impairment rating. 	Thus, he received
benefits under the LHWCA for a period of 281.57 weeks.
On January 11, 1988, claimant filed a claim for benefits
under the Act. 	On December 16, 1991, the commission entered an
award in claimant's favor. 	Under this award, claimant received
temporary total disability benefits from May 7, 1990 through July
12, 1994, totalling 218.27 weeks. 	Claimant received the same
amount of weekly benefit, i.e., $250.97, under the LHWCA and the
Act.
On December 22, 1994, employer filed an application,
alleging a change in condition and requesting that the commission
terminate claimant's award on the ground that he had received the
maximum amount of compensation allowed under the Act, i.e., 500
weeks.
II.
The commission's construction of the Act is entitled to
great weight on appeal. 	City of Waynesboro v. Harter, 1 Va. App.
265, 269, 337 S.E.2d 901, 903 (1985). 	However, courts are not
authorized to amend, alter or extend the Act's provisions beyond
their obvious meaning. 	Gajan v. Bradlick Co., Inc., 4 Va. App.
213, 217, 355 S.E.2d 899, 902 (1987).
Code § 65.2-500(D), which governs the payment of temporary

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total disability benefits, provides as follows:
In no case shall the period covered by such
compensation be greater than 500 weeks, nor
shall the total amount of all compensation
exceed the result obtained by multiplying the
average weekly wage of the Commonwealth as
defined herein for the applicable year by
500, except that weekly compensation on
account of total and permanent incapacity as
defined by § 65.2-503 C shall continue for
the lifetime of the injured employee without
limit as to total amount.
Code § 65.2-503(F)(1), which governs the payment of
permanent total and permanent partial disability benefits for the
loss of or loss of use of a member, provides as follows:
Compensation awarded pursuant to this section
shall be in addition to all other
compensation and shall be payable after
payments for temporary total incapacity
pursuant to Code § 65.2-500.1
In this case, the commission held that claimant had received
the maximum amount of benefits allowed under the Act and
terminated its award as of July 12, 1994, thereby crediting
employer for 281.57 weeks during which claimant had received
benefits under the LHWCA. 	In so ruling, the commission relied
1Under the LHWCA, temporary total disability benefits are
computed by using 66 2/3% of the employee's average weekly wage.
33 U.S.C. § 908(b). 	Permanent partial disability benefits are
computed using 66 2/3% of the employee's average weekly wage over
the scheduled number of weeks for the specific body member. 	Id.
at § 908(c). 	The loss of a leg is compensated over a period of
288 weeks. 	Id. at § 908(c)(2). 	Compensation for the permanent
partial loss of such body member is awarded proportionately. 	Id.
at § 908(c)(19). 	Similar to the Virginia Act, the LHWCA provides
that compensation for permanent partial disability "shall be in
addition to compensation for temporary total disability or
temporary partial disability . . . ." 	Id. at § 908(c).

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upon Calbeck v. Travelers Ins. Co., 370 U.S. 114, 131 (1962), to
find that employees' awards under one compensation scheme are
credited against any recovery under the second scheme. 	The
commission refused to allow claimant a double recovery. 	See
Noblin v. Randolph Corporation, 180 Va. 345, 23 S.E.2d 209
(1942). 	The commission has held in other cases that an employer
is entitled to a credit for benefits paid under the LHWCA, even
if the payments were made before entry of an award under the Act.
See Moore v. Virginia Int'l Terminals, Inc., VWC No. 134-44-70
(December 1, 1994); McKnight v. Virginia Int'l Terminals, Inc.,
69 O.I.C. 19 (1990) (employer entitled to credit for identical
benefits paid under the LHWCA).
The commission's ruling allowing employer a credit for the
137.57 weeks during which claimant received temporary total
disability benefits under the LHWCA prior to the December 16,
1991 award is supported by Calbeck and the commission's prior
decisions. 	See also American Original Foods, Inc. v. Ford, 221
Va. 557, 561, 272 S.E.2d 187, 190 (1980). 	The General Assembly
is presumed cognizant of the commission's construction of the
Act. 	If such construction has long continued without change, the
General Assembly is presumed to have acquiesced therein. 	Watford
v. Colonial Williamsburg Found., 13 Va. App. 501, 505, 413 S.E.2d
69, 71-72 (1992). 	Accordingly, the commission did not err in
allowing employer a credit equal to 137.57 weeks against its
500-week liability under the Act for temporary total disability

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benefits.
However, the commission erred in allowing employer a
144-week credit, representing the number of weeks claimant
received permanent partial disability benefits under the LHWCA,
against employer's 500-week liability for temporary total
disability benefits. 	This ruling is inconsistent with the plain
language of Code § 65.2-503(F)(1) and case law interpreting that
section.
Under the Act, permanent partial disability benefits awarded
for the loss of use of a leg are "in addition to all other
compensation." 	Benefits awarded under Code § 65.2-503 constitute
indemnity for the loss of or loss of use of a scheduled body
member. 	Such benefits are not awarded for loss of earning
capacity, as are benefits provided for under Code § 65.2-500.
Division of Motor Vehicles v. Williams, 1 Va. App. 401, 404, 339
S.E.2d 552, 554 (1986). 	Therefore, the commission erred in
allowing employer a credit against its liability under Code
§ 65.2-500 equal to the 144 weeks of permanent partial disability
paid to claimant under the LHWCA.2
For these reasons, we affirm in part and reverse in part and
remand this case for the commission to enter an award consistent
2Claimant erroneously relies upon our holding in Bowden v.
Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683, 688,
401 S.E.2d 884, 887 (1991). 	The sole issue addressed by this
Court in Bowden related to whether the tolling provisions
contained in Code § 65.1-87.1 saved Bowden's claim from the bar
of the applicable statute of limitations. 	We did not address the
issue presented in this case.

with this opinion.

Affirmed in part, reversed in part, and remanded.