COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, Virginia 

BAY CONCRETE CONSTRUCTION COMPANY, INC. 

 AND THE UNION INSURANCE COMPANY 

 OPINION BY 

v. Record No. 3096-03-1 JUDGE LARRY G. ELDER 

 AUGUST 3, 2004 

FRANKIE OREAL DAVIS 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Richard A. Hobson (Law Office of Richard A. Hobson, on brief), for 

appellants. 

 Carlton F. Bennett (Bennett and Zydron, P.C., on brief), for 

appellee. 

 Bay Concrete Construction Co., Inc. (employer) and The Union Insurance Company 

(carrier) appeal from a decision of the Workers’ Compensation Commission holding that 

overpayments of disability compensation to Frankie Oreal Davis (claimant) entitled carrier only 

to a credit against any future compensation due and did not entitle it to recover those 

overpayments from claimant “by action at law” pursuant to Code §§ 65.2-710 or 65.2-712. We 

hold the commission’s refusal to certify the award for an action at law in the circuit court was not 

error, and we affirm. 

I. 

BACKGROUND 

 The facts are largely undisputed. Claimant suffered an inguinal hernia on April 23, 1999, 

while working for employer as a concrete foreman. He continued working after the injury, but 

on May 3, 1999, he underwent surgery for that condition and was temporarily and totally 

disabled through at least October 11, 1999. 
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 The carrier accepted the injury as compensable, and the commission entered an award for 

medical and disability benefits. Carrier paid claimant temporary total disability compensation 

from May 10, 1999, through October 11, 1999, in the total amount of $11,146.74. 

Notwithstanding claimant’s inability to work during this same period, employer continued to pay 

him his pre-injury wages in the gross amount of $760 per week. Employer explained claimant 

had been a loyal and very hard-working employee for approximately 15 years prior to his injury. 

Employer “kept paying [claimant] . . . because of the value he was to the company” and because 

“[it] just wanted to make sure that [he] was financially taken care of until he could come back to 

work.” Although the carrier began paying claimant disability compensation as of May 10, 1999, 

claimant did not inform employer of this fact and did not notify carrier that he was 

simultaneously receiving payments from employer equal to his full pre-injury wages. 

 In October 1999, employer and carrier each learned of the other’s payments to claimant, 

and the carrier voiced an intention to seek a credit for the compensation payments it had made to 

claimant during that time. “[I]n order to protect [claimant from] any action that the [carrier] was 

going to take” due to the “double payments” claimant had received, employer and claimant 

entered into an agreement characterizing employer’s payments to claimant as a loan that 

claimant would pay back to employer at the rate of $100 per month. Due to the existence of an 

“open award giving [claimant] [c]ompensation benefits,” claimant’s ongoing disability, and 

employer’s representation that claimant had agreed to pay back to employer the monies he had 

received from employer while also receiving disability compensation, carrier did not seek a 

credit for the compensation payments at that time. 

 Claimant made no payments to employer pursuant to the terms of the agreement. 

Claimant testified that employer’s president, Jim Williams, asked him to sign the repayment 

agreement because “the insurance company was on his back.” Claimant testified Williams said 
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the agreement was “just for [carrier’s] benefit,” that Williams “was glad . . . he did what he did,” 

and that he “wasn’t looking for [claimant] to pay [the money] back.” Williams testified he could 

not recall what, if anything, he told claimant about whether he expected claimant to make those 

payments. 

 In 2002, carrier filed an application for hearing in which it sought, inter alia, a credit for 

alleged overpayments made in 1999, based on claimant’s simultaneous receipt of both monies 

equal to his full pre-injury wage from employer and temporary total disability compensation 

from carrier. Carrier also indicated its intent to request “certif[ication of] an[y] award for a 

credit to the circuit court to be reduced to a judgment upon which collection procedures at law 

would follow.”1

 The deputy commissioner ruled as follows: 

[K]nowledge regarding a claim is imputed from employer to 

insurer and from insurer to employer. Further, the evidence does 

not establish that the claimant engaged in any fraud or deception in 

regard to his receipt of these payments [from employer and 

insurer]. Nevertheless, the case law cited by the insurer shows that 

the insurer is due a credit for its overpayment of compensation as 

against any future compensation for disability that may be due. . . . 

 The employer has requested that the Commission certify 

any “. . . credit awarded to the circuit court.” . . . We do not find 

any basis for such an attempt in the language of the Virginia 

Workers’ Compensation Act. . . . [O]verpayments that occur 

absent fraud or a failure to report earnings can only be recouped by 

way of a credit. There is no evidence of fraud in this case and 

there was not a failure to report earnings given that the insurer and 

employer stand as one in regard to their knowledge of the status of 

the claim. 

 Carrier requested commission review of the deputy’s decision. The commission, on 

review, summarized the deputy’s decision and ruled as follows: 

 The deputy commissioner found that the employer should 

be awarded a credit for the [1999] payments . . . [but] declined to 

 1

 The deputy’s and commission’s resolution of the other issues raised by carrier in its 

application are not before us in this appeal. 
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find that the claimant violated Code § 65.2-712 . . . . On [r]eview, 

the employer argues that these [1999] payments . . . were an 

“increase in earnings” under Code § 65.2-712. We do not agree. 

 The evidence did not show any earnings between May 14 

and October 11, 1999. . . . [T]he employer, for business reasons, 

made the payments because of the claimant’s work history with the 

employer. Code § 65.2-712 seeks to protect employers and 

insurers when payments are made to an employee as a result of 

fraud or misrepresentation or when an employee returns to work, 

or receives a pay increase after a return to work, but does not 

report the return to work or the pay increase. Here, the payments 

clearly were not “earnings” pursuant to a return to work as 

envisioned by Code § 65.2-712. 

 The employer . . . argues that the deputy commissioner 

incorrectly found that the claimant was not required to report the 

employer’s payments to the carrier. . . . Code § 65.2-712 

specifically provides that . . . a return [to work for one’s pre-injury 

employer] shall be disclosed directly to the insurer, unless the 

employer is self-insured . . . . Here, however, there was no return 

to work, increase in post-return earnings, fraud, or 

misrepresentation such that Code § 65.2-712 should apply. Rather, 

there was an overpayment. The deputy commissioner awarded a 

credit to the employer against future compensation for this 

overpayment, and we see no reason to overturn this decision. 

 Carrier noted this appeal.2

 2

 The Act expressly provides as follows: 

When any employer is insured against liability for compensation 

with an insurance carrier, and such insurance carrier shall have 

paid any compensation for which the employer is liable or shall 

have assumed the liability of the employer therefor, it shall be 

subrogated to all the rights and duties of the employer and may 

enforce any such rights in its own name . . . ; however, nothing 

herein shall be construed as conferring upon the insurance carriers 

any other or further rights than those existing in the employer at 

the time of the injury to his employee, anything in the policy of 

insurance to the contrary notwithstanding. 

Code § 65.2-812. Thus, the carrier stands in the shoes of the employer for purposes of seeking 

relief under the Act, even when it opts to sue in its own name. See Sheris v. Travelers Ins. Co., 

491 F.2d 603, 605 (4th Cir. 1974) (relying on former Code § 65.1-112, predecessor to Code 

§ 65.2-812). 

Here, the deputy and commission actually awarded the credit to employer. However, the 

procedural history of the case makes clear that it was the carrier, pursuant to its contractual 

agreement to provide employer with workers' compensation insurance coverage, that made the 
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II. 

ANALYSIS 

 Code § 65.2-710 provides that “[o]rders or awards of the Commission may be recorded, 

enforced, and satisfied as orders or decrees of a circuit court upon certification of such order or 

award by the Commission. The Commission shall certify such order or award upon satisfactory 

evidence of noncompliance with the same.” Code § 65.2-712 provides in relevant part as 

follows: 

So long as an employee . . . receives payment of compensation 

under this title, [the 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 fraud, 

misrepresentation, or 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 . . . . 

Here, the commission awarded employer a credit for the temporary total disability 

compensation carrier paid claimant while employer continued to pay the disabled claimant sums 

equal to his pre-injury wage.3

 Employer assigns error to (1) the commission’s conclusion that 

“carrier and employer stand as one in regard to their knowledge of the status of” a claimant’s 

return to work for employer; (2) the commission’s finding that claimant had no duty to report to 

carrier employer’s ongoing payments to claimant under Code § § 65.2-712 because they were 

not an increase in earnings and did not result from a return to work; and (3) the commission’s 

 

disability compensation payments and seeks the relief at issue in this appeal. For ease of 

reference in the analysis section of this opinion, we refer to the appellant as employer. We are 

aware of no dispute between carrier and employer as to who is entitled to the credit and do not 

address any such dispute in this appeal. 

3

 Claimant does not contest the commission’s award of such a credit, and thus, we do not 

consider the propriety of the credit award on appeal. 
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refusal to certify the award to the circuit court for a credit in accordance with Code §§ 65.2-710 

or 65.2-712. We hold no reversible error occurred. 

A. 

IMPUTING TO CARRIER 

KNOWLEDGE OF EMPLOYER’S ONGOING PAYMENTS 

 We hold employer’s challenge to the conclusion that “carrier and employer stand as one 

in regard to their knowledge of the status of” a claimant’s return to work for employer is not 

properly before us because only the deputy, not the commission, reached such a conclusion. 

 The deputy expressly held employer’s knowledge of the status of claimant’s claim was 

imputed to the carrier and implicitly held employer’s payment of claimant’s pre-injury wage 

amounted to a “return to employment” or “increase in earnings” that claimant would otherwise 

have had a duty to report under Code § 65.2-712. 

 The commission affirmed the deputy’s award but did so for reasons different from those 

assigned by the deputy. The commission did not state that an employer’s knowledge of a 

claimant’s receipt of his pre-injury wage is imputed to the carrier. In fact, it implied the contrary 

by expressly acknowledging the language of Code § 65.2-712 providing that “a return [to work] 

shall be disclosed directly to the insurer, unless the employer is self-insured.” Finally, the 

commission concluded that claimant had no “return to employment” or “increase in earnings” 

and, thus, had nothing to report. 

In sum, only the deputy concluded that employer’s knowledge of the status of claimant’s 

claim was imputed to carrier for purposes of Code § 65.2-712. Because the commission did not 

rely on this reasoning in support of its affirmance of the award, the issue is not before us in this 

appeal. 
B. 

WHAT CONSTITUTES AN “INCREASE IN EARNINGS” 

UNDER CODE § 65.2-712 

 Here, the commission expressly concluded that Code § 65.2-712 was inapplicable 

because “there was no return to work, increase in post-return earnings, fraud, or 

misrepresentation.” Thus, the commission’s affirmance of the deputy’s award of credit did not 

occur pursuant to that statute. Instead, the commission found that the money employer gave to 

claimant despite his inability to work “was an overpayment” and appears implicitly to have 

applied the doctrine of imposition to award a credit against future compensation for disability 

paid claimant while claimant continued to receive from employer an amount equal to his 

pre-injury wages, despite his inability to work. 

General principles of workers’ compensation law provide that an employer or carrier 

should “not be required to pay twice for an employee’s injury” and that double recoveries are to 

be avoided. See Va. Int’l Terms. v. Moore, 22 Va. App. 396, 403, 470 S.E.2d 574, 578 (1996) 

(determining employer’s entitlement to credit, pursuant to voluntary payments provision of Code 

§ 65.2-520, for disability paid under federal workers’ compensation act), aff’d, 254 Va. 46, 50, 

486 S.E.2d 528, 530 (1997). Applying these principles under the discretionary doctrine of 

imposition, the commission has “‘jurisdiction to do full and complete justice in each case,’” 

which includes “‘the power and authority not only to make and enforce its awards, but [also] to 

protect itself and its awards from fraud, imposition and mistake.’” Collins v. Dep’t of Alcoholic 

Beverage Control, 21 Va. App. 671, 679-80, 467 S.E.2d 279, 282 (quoting Harris v. Diamond 

Constr. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 (1946)), aff’d on reh’g en banc, 22 Va. App. 

625, 472 S.E.2d 287 (1996). Nevertheless, we are aware of “no authority . . . that permits the 

commission to use the imposition doctrine to override the clear provisions of a workers’ 

compensation statute.” Id. at 678, 467 S.E.2d at 282. 
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 In the present appeal, employer challenges not the presumed application of the 

discretionary doctrine of imposition to award a credit but rather the construction of specific 

statutes under which employer claims it was entitled to pursue an action at law in the circuit 

court in order to recoup the amount of the credit. 

“In construing statutes, courts are charged with ascertaining and giving effect to the intent 

of the legislature.” Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 

(1997). “That intention is initially found in the words of the statute itself, and if those words are 

clear and unambiguous, we do not rely on rules of statutory construction or parol evidence, 

unless a literal application would produce a meaningless or absurd result.” Id. “‘[W]here the 

legislature has used words of a plain and definite import[,] the courts cannot put upon them a 

construction which amounts to holding the legislature did not mean what it has actually 

expressed.’” Peacock v. Browning Ferris, Inc., 38 Va. App. 241, 249, 563 S.E.2d 368, 372 

(2002) (quoting City of Va. Beach v. ESG Enters., 243 Va. 149, 152-53, 413 S.E.2d 642, 644 

(1992)). 

We are also guided by the principle that the Act “is highly remedial and should be 

liberally construed to advance its purpose . . . [of compensating employees] for accidental 

injuries resulting from the hazards of the employment.” Henderson v. Central Tel. Co., 233 Va. 

377, 382, 355 S.E.2d 596, 599 (1987). Although “we are not bound by the commission’s legal 

analysis in this or prior cases,” USAir, Inc. v. Joyce, 27 Va. App. 184, 189 n.1, 497 S.E.2d 904, 

906 n.1 (1998), we give great weight to the commission’s construction of the Act, see City of 

Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985), and we defer to the 

commission’s factual findings if supported by credible evidence in the record, see Lynchburg 

Foundry Co. v. Goad, 15 Va. App. 710, 712, 427 S.E.2d 215, 217 (1993). 
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 Here, employer did not allege and presented no evidence that claimant failed to disclose 

to carrier a return to work during the period in question. In addition, credible evidence supported 

the commission’s determination that claimant did not commit fraud or misrepresentation in order 

to procure the disability compensation payments at issue. The undisputed evidence established 

that he was totally disabled during the relevant period of 1999. 

Finally, the record supports the commission’s conclusion that claimant did not receive an 

“increase in earnings.” Claimant was totally disabled, and employer continued to pay him not 

for any work he actually did but solely in the hope that he would remain a loyal employee and 

eventually return to work for employer. The Act equates “earnings” with “wages.” Smith v. 

Robert W. Smith, 32 Va. App. 242, 255, 527 S.E.2d 463, 470 (2000) (citing Code § 65.2-101). 

“The reason for calculating the average weekly wage is to 

approximate the economic loss suffered by an employee . . . when 

there is a loss of earning capacity because of work-related injury.” 

. . . If the claimant suffers a disability as a result of the injury, the 

commission must compare the claimant’s pre-injury average 

weekly wage to the wage he is able to earn after the injury to 

determine whether he is entitled to total or partial disability 

benefits and, if so, at what rate. 

Id. at 249-50, 527 S.E.2d at 467 (quoting Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 163, 

355 S.E.2d 339, 340 (1987)) (emphases added). 

Here, because of claimant’s total physical disability, he was not able to earn any wage 

during the period in question, and thus, he had no “earnings” within the plain meaning of Code 

§ 65.2-712. Cf. Allegheny Airlines, Inc. v. Merillat, 14 Va. App. 341, 344-45, 416 S.E.2d 467, 

469-70 (1992) (holding under predecessor to Code § 65.2-500 that entitlement to temporary total 

disability benefits requires only proof of pre-injury average weekly wage and a showing of total 

disability and does not require proof that the claimant’s “weekly earnings are reduced below his 

pre-injury average weekly wage as a result of injuries sustained in the industrial accident”). 

Accordingly, the evidence proved, at most, that carrier made an overpayment of compensation to 
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claimant due to a mistake, and the commission awarded employer a credit for those 

overpayments as against future compensation.4

 See Harris, 184 Va. at 720, 36 S.E.2d at 577. 

Adopting the construction of Code § 65.2-712 “sought by employer[] would require us to extend 

the . . . Act’s provisions beyond their obvious meaning and to hold that the legislature did not 

mean what it actually expressed. If such a change is to be made, it is for the legislature to 

undertake, not us.” Peacock, 38 Va. App. at 251, 563 S.E.2d at 373. 

 In addition to the clear language of the statute, policy reasons also dictate this result. If 

anyone has suffered a loss in this case, it is not carrier but employer, which paid both sums equal 

to claimant’s pre-injury wage and its own workers’ compensation insurance premiums. 

Employer paid the money to the claimant “for business reasons . . . because of the claimant’s 

work history with the employer.” Employer paid at its own expense, not carrier’s; employer, 

having paid its workers’ compensation insurance premiums, was entitled to have claimant, its 

injured employee, compensated by carrier for the undisputed period of time in 1999 during 

which he was temporarily and totally disabled. 

 Further, a primary purpose of providing for recoupment by credit rather than an action at 

law in cases in which no fraud, misrepresentation or failure to report a return to work or increase 

in earnings has been shown is that, in the absence of such proof, no evidence establishes the 

claimant was at fault in causing the overpayment, and he or she is the party presumably least able 

to bear the burden of losing money if forced to repay it in an action at law. Allowing 

recoupment through a credit as opposed to an action at law best balances the dual goals of 

preventing a claimant’s unjust enrichment without unduly penalizing the claimant financially for 

failing to recognize or report the overpayment in a more timely fashion. 

 4

 See supra note 2. 
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 Thus, under the plain meaning of Code § 65.2-712, we affirm the commission’s 

conclusion that claimant had no “increase in earnings” he was required to report. 

C. 

AUTHORITY FOR RECOUPMENT OF OVERPAYMENTS IN AN 

ACTION AT LAW UNDER CODE §§ 65.2-710 OR 65.2-712 

 Employer contends the provisions of Code §§ 65.2-712 or 65.2-710 authorized it to seek 

recoupment of the overpayment in an action at law. We hold neither statute entitled employer to 

such relief under the facts of this case. 

 Code § 65.2-712 authorizes an action at law against a claimant only where the claimant 

has “procured [the payment of compensation] . . . by fraud, misrepresentation, or failure to report 

any . . . return to employment [or] increase in earnings.” As we held above, see supra Part II.B., 

the evidence fails to establish an “increase in earnings,” fraud or misrepresentation, and 

employer did not allege a return to work. Thus, Code § 65.2-712 does not authorize an “action at 

law against the claimant” for recovery of the overpayment. 

 Code § 65.2-710 provides that “[t]he commission shall certify [an] order or award [to a 

circuit court for recording, enforcement and satisfaction] upon satisfactory evidence of 

noncompliance with the same.” Here, the commission’s award was for a credit against future 

compensation, and the record contained no evidence of “noncompliance with the same.” Thus, 

Code § 65.2-710 also did not authorize the commission to certify the credit award for 

enforcement. 

III. 

 For these reasons, we hold the commission’s refusal to certify the award for an action at 

law in the circuit court pursuant to Code §§ 65.2-710 or 65.2-712 was not error, and we affirm. 

Affirmed.
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Frank, J., concurring. 

 I concur with the opinion to the extent that the commission correctly determined that 

Code § 65.2-712 does not apply to this case. The only remaining issue is whether the 

commission erred in not allowing the carrier to pursue a civil remedy. 

 No one contests that an overpayment was made or that the carrier is entitled to a credit. 

In its brief, the carrier premised certification under Code § 65.2-710 upon a finding of a violation 

of Code § 65.2-712. Under the carrier’s theory before the commission, if it does not prevail 

under Code § 65.2-712, then there is no civil relief under Code § 65.2-710. The issue of whether 

Code § 65.2-710 applies independently to this case was not before the commission and is not 

properly before this Court. I therefore disagree that this Court has the authority to consider the 

independent application of Code § 65.2-710 and would not address the issue of whether or not 

the commission properly declined to certify the award to the circuit court.