COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

CERES MARINE TERMINALS, INC. and 

 AETNA CASUALTY & SURETY COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0074-97-1 JUDGE RICHARD S. BRAY 

 SEPTEMBER 23, 1997 

ANTHONY E. WARD 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert A. Rapaport (Lynne M. Ferris; Knight, 

Dudley, Clarke & Dolph, P.L.C., on briefs), 

for appellants. 

 Gregory E. Camden (Rutter & Montagna, L.L.P., 

on brief), for appellee. 

 Ceres Marine Terminals, Inc., employer, and Aetna Casualty & 

Surety Company, carrier, (collectively employer) appeal an 

amended award of permanent partial disability compensation to 

Anthony E. Ward (claimant). Employer complains that the 

commission erroneously denied a credit against such award for 

temporary total disability benefits previously paid by employer 

to claimant pursuant to the Longshore and Harbor Workers' 

Compensation Act, 33 U.S.C. §§ 901 to 950 (LHWCA). In response, 

claimant both defends the merits of the decision and challenges 

the jurisdiction of this Court to entertain the appeal, asserting 

that employer failed to timely request commission review of the 

award, as amended. 

 We find that employer's request for review, together with 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the opinion of the commission, embraced the amended award. 

However, because the decision violated the principle enunciated 

in Moore v. Virginia International Terminals, Inc., 254 Va. 46, 

486 S.E.2d 528 (1997), aff'g 22 Va. App. 396, 470 S.E.2d 574 

(1996), we must reverse the commission and remand for further 

proceedings consistent with this opinion. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

JURISDICTION OF THE COMMISSION

 Code § 65.2-705 provides that the full commission shall 

review an award "[i]f an application for review is made 

. . . within twenty days from the date of the award." Timely 

"application" is jurisdictional, "unless the petitioning party 

alleges fraud or mistake in the procurement of the award." 

McCarthy Elec. Co. v. Foster, 17 Va. App. 344, 345, 437 S.E.2d 

246, 247 (1993). Once the commission acquires jurisdiction, it 

may consider, sua sponte, any error it considers "necessary for 

just determination of the issues," although "[a] request for 

review should assign as error specific findings of fact and 

conclusions of law." See Va. Workers' Compensation Commission 

Rule 3.1 (emphasis added); see also Brushy Ridge Coal Co. v. 

Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988) (decided 

under earlier rule; holding that failure to specify exception in 

request for review is not jurisdictional and commission retains 
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discretion to consider any error). 

 Here, employer made a timely application for review of the 

decision rendered on July 25, 1996. The subsequent order, dated 

August 12, 1996, simply amended, without displacing, the earlier 

award. Thus, employer's request for review provided the 

commission with jurisdiction over the disputed award, permitting 

it to consider, sua sponte, any issues deemed relevant on appeal. 

EMPLOYER'S ENTITLEMENT TO CREDIT

 Employer contends that the commission erroneously refused to 

offset the permanent partial disability benefits awarded claimant 

pursuant to the Virginia Workers' Compensation Act (Virginia Act) 

by the temporary total disability monies previously paid under 

the LHWCA. We agree. 

 In Virginia International Terminals, Inc. v. Moore, 22 Va. 

App. 396, 470 S.E.2d 574 (1996), aff'd, 254 Va. 46, 486 S.E.2d 

528 (1997), we relied upon Code § 65.2-520 to conclude that: 

 an employer is entitled to a credit for any

"voluntary payment" it may have made to the 

employee. As defined by the statute, a 

payment is "voluntary" if it was not "due and 

payable" by "the terms of this title" when 

made. Thus, the disability payments employer 

paid claimant under the LHWCA were 

"voluntary" because when paid they were not 

"due and payable" under "the terms of" the 

Virginia Act. Therefore, the amounts paid 

under the LHWCA should have been deducted 

from employer's liability as determined by 

the commission. The statute makes no

exception to its command, and its language 

directing that a credit be provided for "any" 

voluntary payments indicates an intent to 

provide a credit for all payments that fall 

within its classification of "voluntary." 
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22 Va. App. at 405, 470 S.E.2d at 578-79 (emphasis added). 

Affirming the rationale and result in Moore on appeal, the 

Virginia Supreme Court emphasized that "the General Assembly 

intended that an employer should be given a 'dollar-for-dollar' 

credit . . . . Any other reading of Code § 65.2-520 would allow 

a double recovery by an injured employee, and . . . '[d]ouble 

recovery under concurrent jurisdiction will not be allowed.'"1 

254 Va. at 50, 486 S.E.2d at 530 (quoting American Foods v. Ford, 

221 Va. 557, 561, 272 S.E.2d 187, 190 (1980)). 

 Accordingly, we reverse and remand the award, instructing 

the commission to ascertain the total compensation paid to 

claimant pursuant to the LHWCA and credit same to employer's 

responsibility pursuant to the Virginia Act. 

 Reversed and remanded.

 

 1Contrary to claimant's argument, the particulars of 

claimant's coverage under the LHWCA do not affect employer's 

entitlement to a credit for voluntary payments in this instance.