Pressure Concrete etc., et al. v Timothy E. Coburn

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia
PRESSURE CONCRETE CONSTRUCTION COMPANY
and
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH OPINION BY
v. 	Record No. 1111-95-1 	JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 13, 1996
TIMOTHY E. COBURN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William F. Karn (William B. Pierce, Jr.;
Williams & Pierce, on briefs), for appellants.
Karen M. Rye, for appellee.
In November 1993, the employer, Pressure Concrete
Construction Company, and the carrier, National Union Fire
Insurance Company (together referred to as "Carrier"), filed an
application for hearing seeking to terminate benefits paid to the
employee, Timothy E. Coburn ("Coburn"), and to receive
restitution for amounts allegedly over-paid from March 11, 1992
through November 10, 1993. 	Carrier alleged that Coburn failed to
disclose his return to work. 	The deputy commissioner terminated
Coburn's temporary total disability benefits, finding Coburn had
returned to work on January 1, 1992. 	However, the deputy
commissioner refused to award Carrier restitution. 	The deputy
commissioner concluded that Carrier had received notice of
Coburn's return to work, via an application for hearing Coburn
filed in August 1992, yet had paid Coburn without timely seeking

- 2 -
to terminate the payments. 	At the hearing, the deputy
commissioner also refused to allow two of Carrier's witnesses to
testify and denied Carrier's request to cross-examine Coburn's
attorney as to her state of mind in preparing the August 1992
application for hearing. 	The full commission affirmed.
On appeal, Carrier argues that the commission erred in (1)
concluding that Carrier's failure to terminate Coburn's benefits
after learning of his return to work precluded restitution under
Code § 65.2-712; (2) concluding that Coburn's August 7, 1992
application for hearing discharged his duty to disclose
immediately to Carrier his actual return to work on March 11,
1992; and (3) failing to allow Carrier to cross-examine Coburn's
attorney and to permit the testimony of two of Carrier's
witnesses. 	Finding no error, we affirm.
On June 5, 1991, Coburn suffered an injury by accident while
working for his employer, Pressure Concrete Construction Company.
Carrier made voluntary payments to Coburn through the end of
1991 which, according to Coburn, were based on an incorrect
average weekly wage. 	Because of the disputed average weekly wage
amount, the filing of a memorandum of agreement was deferred.
Meanwhile, Coburn was released to return to work on January 1,
1992, and he informed Carrier of his release soon thereafter.
Coburn found employment and began working in March 1992.
In order to resolve the dispute regarding the correct
average weekly wage, Coburn filed an application for hearing in

- 3 -
August 1992. 	Coburn's August 1992 application indicated January
1, 1992 as his return to work date. 	In an August 1992 letter to
Carrier, Coburn also made clear that he sought benefits solely
for the period from June 5, 1991, the date of the accident,
through December 31, 1991, the last day before his release to
return to work.
Before the hearing was held, Carrier sent Coburn a
memorandum of agreement reflecting the correction to the average
weekly wage that Coburn demanded. 	The memorandum of agreement
indicated that payments would commence, retrospectively, on June
13, 1991. 	However, nothing in Carrier's submission terminated
the award on January 1, 1992. 	The memorandum of agreement was
executed by the parties and, on June 7, 1993, the commission
entered an award in accordance with that agreement. 	Thus, the
June 1993 award, as reflected in the agreement, was open ended;
it set a starting date for benefit payments but no termination
date. 	Carrier did not file a motion to set aside the award, nor
did it appeal the award.
Pursuant to the open award, Carrier paid Coburn not only the
difference in the average weekly wage for the period Coburn
sought benefits, but also weekly compensation following that
period. 	By the end of October 1993, Carrier realized that Coburn
had in fact returned to work, so it filed an application for
hearing seeking a determination that Coburn had been over-
compensated as a result of an alleged failure to disclose his

- 4 -
return to employment as required by Code § 65.2-712.
The deputy commissioner concluded that Coburn's August 1992
application for hearing provided sufficient notice of his return
to work and emphasized that, at that time, Coburn was not
receiving compensation. 	The full commission affirmed, noting
that the August application indicated Coburn's return to work
date and that Coburn had sought benefits for a closed period.
In seeking restitution, Carrier relies on the duty to
disclose a return to employment imposed on the employee by Code
§ 65.2-712. 	The statute, in pertinent part, reads as follows:
So long as an employee receives payment of
compensation under this title, such employee
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 . . . 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.
The commission correctly concluded that Coburn met his
statutory burden to provide the required notice under § 65.2-712,
through his August 1992 application. 	Carrier's contention that
the August 1992 notice of actual return to work was insufficient
because it came five months after Coburn actually returned to
work is without merit. 	Although the purpose of Code § 65.2-712
is to place an affirmative duty on employees to disclose their

- 5 -
employment status to an employer or insurer paying compensation,
Magic City Motor Corp. v. Helmick, 10 Va. App. 10, 12, 390 S.E.2d
1, 2 (1990), this duty exists only "so long as an employee
receives payment of compensation under this title." 	Code
§ 65.2-712. 	We decline to adopt Coburn's position that an
employee receiving no compensation is not required to comply with
the statute. 	However, we conclude that the statute cannot be
read to place on employees the duty to notify an employer of a
return to employment subsequent to the period for which the
employee seeks benefits.1 The employer simply has no stake in
the employee's changed circumstances after that point.
When Coburn returned to work in March 1992, he was neither
receiving nor seeking benefits for the period subsequent to
December 31, 1991. 	Nonetheless, in the memorandum of agreement
Carrier entered in 1993, reflecting the resolution of the average
weekly wage dispute, Carrier inexplicably agreed to compensate
Coburn for a period which extended beyond his return to work date
and for which Coburn did not seek compensation. 	Carrier did so
at its peril because, by that time, it had received notice that
Coburn had returned to work.
The Commission correctly concluded that, even if relief
pursuant to Code § 65.2.712 were available on the ground the
1
This conclusion is consistent with the Commission's
decision in Wilkins v. Best Masonry, Inc., 70 O.I.C. 245 (1991)
(concluding that the purpose of the statute is to protect
employers from paying compensation during the period in which the
claimant "is earning wages that affect the compensation rate").

- 6 -
employee failed to give the requisite notice, the plain language
of the statute limits the available remedies to a credit against
future compensation or for an action at law. 	The section does
not give the commission authority to order restitution as
requested by the Carrier.
Because we conclude that Coburn provided sufficient notice
of his return to employment and that Carrier is not entitled to
relief under Code § 65.2-712, we need not address Carrier's first
assignment of error concerning its right to an independent remedy
under Code § 65.2-712. 	We further find that the testimony of
Carrier's representatives is irrelevant as to whether the August
1992 documents constituted sufficient notice. 	The receipt of the
documents was acknowledged. 	As such, the testimony in question
would have concerned only the contents of the documents, which
speak for themselves. 	Similarly, the intent of Coburn's attorney
is irrelevant since the issue turns on whether notice is apparent
from the face of the documents.
Accordingly, the decision of the commission is affirmed.
Affirmed.