COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Norfolk, Virginia 

HERBERT C. KING, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0356-98-2 JUDGE RICHARD S. BRAY 

 FEBRUARY 9, 1999 

PEPSI COLA COMPANY and 

 LUMBERMENS MUTUAL CASUALTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 T. Andrew Lingle for appellant. 

 J. Derek Turrietta (William W. Nexsen; 

Stackhouse, Smith & Nexsen, on brief), for 

appellees. 

 Herbert C. King, Jr. (claimant) complains on appeal that the 

Workers' Compensation Commission (commission) erroneously 

relieved Pepsi Cola Company and Lumbermens Mutual Casualty 

Company (employer) from the simultaneous payment of permanent 

partial and temporary partial disability benefits, together with 

related penalties, previously ordered by the commission. We 

disagree and affirm the decision. 

 On appeal, we construe the evidence in the light most 

favorable to the party prevailing below, employer in this 

instance. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 

211, 212, 390 S.E.2d 788, 788 (1990). "'If there is evidence, or 

reasonable inferences can be drawn from the evidence, to support 

the commission's findings, they will not be disturbed on review, 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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even though there is evidence in the record to support a contrary 

finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 

S.E.2d 342, 344 (1993) (citation omitted). 

 The record discloses that claimant suffered a compensable 

injury by accident on December 14, 1995. Employer accepted the 

resulting claim, and temporary disability and medical benefits 

were awarded by the commission pursuant to several memoranda of 

agreement submitted by the parties. Claimant subsequently 

resumed employment at the pre-injury wage, and disability 

compensation was terminated, again by agreement. 

 On October 4, 1996, claimant lodged a related claim with the 

commission, seeking permanent partial disability benefits. 

Following appropriate consideration, a deputy commissioner, on 

May 6, 1997, awarded claimant "permanent partial disability 

compensation beginning August 19, 1996, based upon a forty 

percent loss of use of his left arm, . . . and continuing for a 

period of 80 weeks." Employer filed a timely request for review, 

and the full commission affirmed the deputy by opinion dated 

September 3, 1997. 

 In the interim, claimant also pursued temporary partial 

disability benefits, which were awarded by the commission by 

order of October 10, 1997, in accordance with a Supplemental 

Memorandum of Agreement. However, in addition to such agreed 

temporary partial disability benefits, the October order noted, 

parenthetically, that such "benefits are to be made 
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simultaneously with the Commission's previous award entered in 

this case providing for permanent disability benefits." 

 Objecting to the simultaneous payment provision, employer's 

counsel telephoned the commission on October 15, 1997 and spoke 

with a person identifying herself as Carolyn Fleming, a 

commission "claims examiner" previously involved with the file. 

Counsel was then advised that the order incorrectly required 

simultaneous payment and was assured that a corrected award would 

be forthcoming. Counsel confirmed this communication by letter 

to Fleming, dated November 11, 1997, and ignored the order of 

October 10, 1997, in anticipation of an amended award. Shortly 

thereafter, claimant notified the commission of employer's 

noncompliance, and, on December 4, 1997, Deputy Commissioner 

Phillips ordered employer to "immediately" pay "[a]ll 

compensation currently owed" pursuant to the disputed order, 

together with a twenty percent penalty. 

 Employer again contacted Fleming by letter dated December 5, 

1997, reminded her of the earlier conversation and 

correspondence, and protested the inconsistent action of Deputy 

Commissioner Phillips. In response, Fleming denied previously 

speaking with counsel and advised that the awards were final and 

the penalty properly due. Employer then filed a request for 

review of both the penalty and order requiring simultaneous 

payment, urging the commission to invoke its continuing 

jurisdiction to redress "fraud, imposition, or estoppel." 
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 On review, the commission found "counsel's November 11, and 

December 5, 1997, letters to [Fleming] persuasive and 

compelling," and, therefore, concluded "that counsel made a good 

faith effort to contact . . . the claims department to assert 

. . . disagreement with the award order" requiring simultaneous 

payment. The commission interpreted Code § 65.2-503(E)(2) to 

permit, but not mandate, simultaneous payments, a construction 

approved by claimant on brief, and found that such payments were 

neither intended by employer nor properly ordered by the 

commission in this instance. Thus, expressly asserting its 

"implied power . . . to vacate an award procured through fraud or 

mutual mistake," the commission amended the October order to 

relieve employer from simultaneous temporary and permanent 

partial disability payments and the related penalty. 

 On appeal, claimant contends that employer's failure to 

timely appeal the orders of September 3 and October 10, 1997 

barred review by the commission. See Code §§ 65.2-705, -706; 

Rule 5A:11(b), Rules of the Supreme Court of Virginia; Rule 3, 

Rules of the Virginia Workers' Compensation Commission. However, 

it is well established that the commission may exercise 

jurisdiction after the expiration of appeal periods to redress 

fraud, imposition or mistake. See Harris v. Diamond 

Construction, 184 Va. 711, 720-21, 36 S.E.2d 573, 577-78 (1946). 

 "Within the principles established by statutes and the 

Supreme Court decisions, the commission has '"jurisdiction to do 
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full and complete justice in each case."' Justice is not 

attained by failing to correct obvious mistakes or declining to 

place the parties in positions which are in accord with the Act." 

Collins v. Department of Alcoholic Beverage Control, 21 Va. App. 

671, 681, 467 S.E.2d 279, 283-84 (citations omitted), aff'd en 

banc, 22 Va. App. 625, 472 S.E.2d 287 (1996). In Collins, we 

noted that "[i]t is immaterial whether the mistake of fact is 

mutual or unilateral." Id. at 680, 467 S.E.2d at 283. The 

burden is upon the party attacking an award to establish mistake 

by clear and convincing evidence. See J & D Masonry v. Kornegay, 

224 Va. 292, 295, 295 S.E.2d 887, 889 (1982) (citations omitted). 

 Here, the commission ordered employer to make simultaneous 

payments in the October 10, 1997 award, a result intended by 

neither the commission nor employer. Once aware of the error, 

employer promptly contacted the commission and was advised that 

the order was incorrect and assured that an amended award would 

immediately issue. Under such circumstances, the commission 

properly acted to correct an administrative error, a remediation 

consistent with commission purposes and within well established 

implied authority. 

 Accordingly, we affirm the disputed order. 

 Affirmed.
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Benton, J., concurring. 

 In Collins v. Department of Alcoholic Beverage Control, 21 

Va. App. 671, 467 S.E.2d 279, aff'd en banc, 22 Va. App. 625, 472 

S.E.2d 287 (1996), I dissented from this Court's holding that the 

commission's power to remedy a mistake by the parties is not 

constrained by whether the mistake is mutual or unilateral. See

21 Va. App. at 681-87, 467 S.E.2d at 284-86 (Benton, J., 

dissenting). I believe that this appeal presents the case in 

which this Court has the opportunity to correctly limit its 

ruling, i.e., to mistakes that were caused, not by the parties, 

but by the commission or its staff. 

 On September 3, 1997, the commission awarded Herbert C. 

King, Jr., "permanent partial disability benefits based on a 40% 

impairment of the left upper extremity." Pepsi Cola Company did 

not appeal from that award. A month after entry of the award of 

permanent partial disability, the commission approved a 

memorandum of agreement and on October 10, 1997, awarded King 

temporary partial disability benefits of $480 weekly. Without 

direction from either the commission or the parties, the 

commission's claims department added the following language to 

the temporary partial disability award order: 

 (NOTE: TEMPORARY PARTIAL BENEFITS ARE TO BE 

MADE SIMULTANEOUSLY WITH THE COMMISSIONS 

PREVIOUS AWARD ENTERED IN THIS CASE PROVIDING 

FOR PERMANENT DISABILITY BENEFITS.) 

 Pepsi Cola did not appeal from that award. Instead, it 
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informally sought to have the claims department delete the 

notation from the award order. When Pepsi Cola's efforts were 

unsuccessful and the deputy commissioner assessed a penalty 

against Pepsi Cola for its delay in making payments, Pepsi Cola 

requested a review by the commission. The commission found that 

the claims department mistakenly added to the October 10, 1997 

award order the language requiring simultaneous payment of 

temporary partial benefits and permanent partial benefits. 

Although Code § 65.2-503(E)(2) allows simultaneous payments, 

nothing in the record established that either party had raised 

that issue. The commission found from the evidence that "it 

[was] obviously [Pepsi Cola's] intent to pay the awards 

consecutively and not simultaneously." The claims department had 

acted without any indication of the parties' intentions and 

inserted the notation on the award without direction from either 

the commission or the parties. Thus, the mistake was an 

administrative mistake and not the mistake of either party. 

 In its prior decisions, the commission has held that when "a 

mistake on the part of the [c]ommission [occurs, the commission 

has] . . . the implied power . . . [to] take jurisdiction even 

though the application for review was [not timely]." Perkins v. 

Alexandria City School Board, 71 W.C. 16, 18 (1992). See also

Harris v. Diamond Construction Co., 184 Va. 711, 720, 36 S.E.2d 

573, 577 (1946) (holding that the commission has the power to 

protect its awards from mistake). Because the mistake was not 
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caused by either of the parties, the commission did not need to 

determine whether the mistake was mutual or unilateral to grant 

relief. Cf. Masonry v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 

887, 889 (1982) (holding that relief will not be granted when 

"the evidence proves merely a unilateral mistake of fact by the 

carrier unaccompanied by any fraud attributable to the 

claimant"); Collins, 21 Va. App. at 681-87, 467 S.E.2d at 284-87 

(Benton, J., dissenting) (noting that the commission's power to 

amend an award for a party's mistake requires a showing of a 

mutual mistake of fact). 

 Credible evidence established that the mistake was made by 

the commission's claims department. Therefore, I would also 

affirm the commission's ruling.