COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Clements 

Argued at Chesapeake, Virginia 

NEWPORT NEWS SHIPBUILDING AND 

 DRY DOCK COMPANY 

 OPINION BY 

v. Record No. 0899-01-1 JUDGE RICHARD S. BRAY 

 DECEMBER 4, 2001 

MARY GERTRUDE HOLMES 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Christopher R. Hedrick (Mason, Cowardin & 

Mason, P.C., on brief), for appellant. 

 Richard B. Donaldson, Jr. (Jones, Blechman, 

Woltz & Kelly, P.C., on brief), for appellee. 

 Newport News Shipbuilding and Dry Dock Company (employer) 

appeals the determination of the Workers' Compensation 

Commission (commission) that employer, seeking to recoup a 

credit accrued from payments to claimant in accordance with the 

federal Longshore and Harbor Workers' Compensation Act (LHWCA), 

wrongfully suspended compensation benefits subsequently awarded 

claimant pursuant to the Workers' Compensation Act (Act). 

Additionally, employer appeals the penalty assessed by the 

commission on such suspended compensation. Finding no error, we 

affirm the decision. 

I. 

 The substantive facts and procedural history are 

uncontroverted. On August 13, 1993 claimant sustained a 
work-related injury, which entitled her to benefits pursuant to 

both the LHWCA and the Act. Initially, she pursued and received 

a LHWCA disability award but, "to protect her right to all 

benefits . . . under the . . . Act," also lodged a related claim 

with the commission, then advising the commission, "[n]o hearing 

is requested at this time."1

 After claimant had received LHWCA benefits totaling 

$68,942.78, employer terminated payments on August 30, 1998. 

Thereafter, by letter to the commission dated September 21, 

1998, claimant "request[ed] that this matter be moved to the 

hearing docket on an expedited basis to request . . . benefits 

[under the Act] beginning August 31, 1998, and continuing." The 

parties subsequently agreed to a schedule of compensation to 

claimant for various periods of disability, including a lump sum 

of $21,831.22 for "a 50% permanent partial disability to the 

left leg" and "[t]emporary partial disability . . . of $104.87 

per week from 1/19/99 to the present and continuing," and the 

commission so ordered. 

 On May 8, 2000, claimant notified the commission that 

employer had unilaterally ceased payment of the $104.87 weekly 

benefit on July 4, 1999, and, pursuant to Code § 65.2-254, 

 1

 In response, the commission acknowledged the claim and 

notified both employer and claimant, without objection, "[n]o 

further action will be taken . . . until requested by the 

parties." 

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sought assessment of a twenty percent penalty on "all payments 

in arrears more than two weeks." The commission immediately 

granted claimant's motion. However, within several days, 

employer objected, advising the commission that, after realizing 

"that payments had also been made under the [LHWCA]," employer 

was "now taking a dollar for dollar credit" against the award. 

The dispute was promptly designated "for determination on the 

record," and each party was directed to submit written 

"statements of position" and related documentary proofs for 

further consideration by the commission. 

 Guided by Moore v. Va. Int'l Terminals, Inc., 254 Va. 46, 

486 S.E.2d 528 (1997) (Moore II), and an unpublished opinion of 

this Court, Dodson v. Newport News Shipbuilding & Dry Dock Co., 

Record No. 0278-99-1 (Va. Ct. App., Aug. 10, 1999), the deputy 

commissioner decided that, while employer was entitled to a 

credit for LHWCA benefits previously paid to claimant, "the 

method by which overpayments are to be recognized" was governed 

by the "requirements of [Code] § 65.2-520." Thus, employer's 

recoupment was limited "to . . . a reduction of one-fourth of 

the amount of weekly payments" due claimant "through the present 

and continuing," not a suspension of benefits. Additionally, 

pursuant to Code § 65.2-524, the deputy assessed a statutory 

penalty against employer upon those payments wrongfully withheld 

from claimant's award under the Act. The commission affirmed 

the decision following appeal by employer. 

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 Employer now appeals to this Court, disputing the 

application of Code § 65.2-520 to limit recoupment of payments 

made pursuant the LHWCA, and the related penalty. 

II. 

 Code § 65.2-520 provides, in pertinent part, that 

[a]ny payments made by the employer to the 

injured employee during the period of his 

disability . . ., which by the terms of this 

title were not due and payable when made, 

may, subject to the approval of the 

Commission, be deducted from the amount to 

be paid as compensation provided that, in 

the case of disability, such deductions 

shall be made by reducing the amount of the 

weekly payment in an amount not to exceed 

one-fourth of the amount of the weekly 

payment for as long as is necessary for the 

employer to recover his voluntary payment. 

Employer correctly concedes "that numerous appellate decisions 

have considered payments under the [LHWCA] in the context of 

'voluntary payments' as defined by § 65.2-520." See, e.g., Va. 

Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 405, 470 S.E.2d 

574, 578 (1996) (Moore I) ("[D]isability payments employer paid 

claimant under the LHWCA were 'voluntary' because . . . they 

were not 'due and payable' under 'the terms of' the Virginia 

Act."), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997). However, 

employer posits that application of the statute to the instant 

facts would confer benefits upon claimant violative of Code 

§ 65.2-518 and inconsistent with the rationale of Moore II and, 

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further, encourage delay in the prosecution of like claims under 

the Act.2

 Code § 65.2-518 limits "total compensation under this 

title" to "500 weeks" or "the average weekly wage of the 

Commonwealth . . . for the applicable year [multiplied] by 500." 

Moore II instructs that "[w]here, as here, a worker is covered 

by both the [LHWCA] and the state [Act], . . . the injured 

worker may proceed under either or both statutes" but "is 

entitled to only a single recovery for his injuries." Moore II, 

254 Va. at 49, 486 S.E.2d at 529 (citations omitted). Thus, the 

Court in Moore II construed Code § 65.2-520 to assure an 

employer a "dollar for dollar" credit for LHWCA compensation 

benefits paid an injured employee against like benefits due 

under the Act, thereby avoiding an impermissible "double 

recovery." Id. at 50, 486 S.E.2d at 530. Employer, therefore, 

reasons the commission may not restrict recovery of LHWCA 

credits under Code § 65.2-520 with the result that claimant 

receives both a "total recovery" violative of Code § 65.2-518 

and a "double recovery" contrary to Moore II. Employer's 

argument misconstrues both Code § 65.2-518 and Moore II. 

 2

 Employer's uncontroverted calculations reflect that 

recoupment at the statutory rate, $26.21 per week (25% of 

$104.87), would permit "recapture" of only $42,944.04 from 

claimant over the benefit period under the Act, resulting in a 

"windfall" to claimant of $25,998.74 and a "pennies-for-dollar" 

credit recovery for employer. 

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 The benefit limitations prescribed by Code § 65.2-518 are 

restricted to "total compensation payable under" the Act. 

Therefore, recoupment of credits resulting from voluntary 

payments by an employer to an injured employee of monies, "not 

due and payable [under the Act] when made," is a circumstance 

clearly not contemplated by Code § 65.2-518 but, rather, 

specifically embraced by Code § 65.2-520. Code § 65.2-520 

(emphasis added). Code § 65.2-520 facilitates an employer's 

right to collect LHWCA credits by "deductions" from compensation 

due an employee under the Act but expressly restricts such 

offsets to one-fourth of the "weekly payment." Code § 65.2-520 

creates no alternative or exception to the collection mechanism 

to redress circumstances that may result in a diminished 

recovery by an employer. "If a statute is clear and 

unambiguous, a court will give the statute its plain meaning." 

Loudoun Co. Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 84, 425 

S.E.2d 800, 802 (1993) (citations omitted). 

 Similarly, a proper reading of Moore II offers no support 

for employer's argument. Moore II simply affirms the 

well established principle disfavoring double recovery by an 

employee of benefits arising from the same industrial accident 

and construes Code § 65.2-520 to allow a "dollar for dollar" 

recoupment by an employer of overpayment credits. Id. at 49-50, 

486 S.E.2d at 530. Moore II neither disapproves the method of 

recovery specified by Code § 65.2-520 nor suggests exceptions to 

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preclude shortfalls to employer or windfalls to employee. To 

the contrary, the court defers to the "clear intent of the 

General Assembly" in construing Code § 65.2-520, thereby 

countenancing the explicit statutory limitations upon recovery 

of overpayment credits. 

 Lastly, employer maintains that the promise of undeserved 

benefits resulting from statutory limitations upon an employer's 

recoupment of overpayments would encourage claimants receiving 

benefits pursuant to the LHWCA to delay a proceeding under the 

Act and urges this Court to fashion a remedy to this perceived 

deficiency in the statutory scheme. However, such public policy 

determinations are within the province of the legislature, not 

the judiciary. Thus, absent evidence that the instant claim was 

time-barred by the Act or attendant Rules of the Commission, we 

decline employer's invitation to impose a judicial limitation. 

III. 

 Claimant's brief includes a conclusionary prayer for 

"interest due under [Code] § 65.2-707 [and] attorney's fees and 

costs due under [Code §] 65.2-713." A review of the record 

discloses claimant requested "an award of attorney's fees" in 

correspondence to the commission dated May 25, 2000. In 

subsequently deciding the instant cause, the deputy expressly 

did "not find" claimant entitled to "any attorney's fees under 

[Code] § 65.2-513 [sic]," a decision claimant did not submit for 

review by the commission. Accordingly, the commission did not 

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address the issue and we decline to entertain it on appeal. 

With respect to an award of fees and costs incident to the 

proceedings before this Court, we find "reasonable grounds" 

supported employer's defense and deny claimant such relief. 

Code § 65.2-713(A). 

 Accordingly, the commission properly limited employer's 

right of recoupment to the method prescribed by Code § 65.2-520 

and correctly assessed a penalty on those benefit payments 

withheld contrary to statute. We, therefore, affirm the 

decision and remand the proceedings to the commission solely for 

entry of an appropriate order directing the immediate payment of 

those benefits improperly withheld by employer, together with 

the attendant penalty and interest, and the restoration of 

benefits to claimant, subject to the provisions of Code 

§ 65.2-520. 

 Affirmed and remanded. 

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