COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

FENCO, INC. 

AND 

PMA INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 1604-96-3 DECEMBER 17, 1996 

DAVID W. BOTTENFIELD 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Ruth Nathanson; Midkiff & Hiner, on brief), 

for appellants. 

 (George L. Townsend; Chandler, Franklin & 

O'Bryan, on brief), for appellee. 

 Fenco, Inc. ("employer") and PMA Insurance Company ("the 

insurer") contend that the Workers' Compensation Commission 

("commission") erred in denying their application requesting that 

the commission vacate its September 19, 1995 award and amend 

David W. Bottenfield's ("claimant") average weekly wage. Upon 

reviewing the record and the briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the commission's decision. Rule 5A:27. 

 Claimant sustained a compensable lower back injury on 

August 4, 1995. On August 21, 1995, employer sent wage 

statements to the commission for it to calculate claimant's 

average weekly wage. On that same date, employer executed a 

Memorandum of Agreement, agreeing to pay claimant compensation 

 

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

designated for publication. 
 2 

based upon an average weekly wage of $862.30. Claimant executed 

the Memorandum of Agreement on September 6, 1995. The insurer's 

representative, Greg Robinson, informed the commission that he 

received the commission's calculation of claimant's average 

weekly wage in the amount of $511.69 on September 8, 1995. On 

September 13, 1995, Robinson executed the Memorandum of Agreement 

on behalf of the insurer and forwarded it to the commission. The 

Memorandum of Agreement contained the words, "Corrected Average 

Weekly Wage and Comp. Rate." On September 19, 1995, the 

commission entered an award based upon an average weekly wage of 

$862.30, as stated in the Memorandum of Agreement. Neither 

employer nor insurer sought to withdraw the Memorandum of 

Agreement prior to the commission's award, nor did they seek 

review of the award. On November 3, 1995 and November 28, 1995, 

employer filed applications seeking (a) to terminate claimant's 

compensation on the ground that he had returned to work and (b) a 

credit for overpayment due to an incorrect average weekly wage. 

 Employer bore the burden of proving a basis upon which the 

commission would have been required to vacate its September 19, 

1995 award. Unless we can say as a matter of law that employer's 

evidence sustained its burden of proof, the commission's findings 

are binding and conclusive upon us. Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). In 

denying employer's request to change claimant's average weekly 

wage, the commission found as follows: 

 Despite receiving Commission calculations, 
 3 

the employer agreed to a higher average 

weekly wage. To amend this, the employer 

would have to prove fraud, mutual mistake, or 

imposition. Sovran Financial Corp. v. 

Nanney, 12 Va. App. 1156, 408 S.E.2d 266 

(1991). The claimant contends that the 

calculation contained in the Memorandum of 

Agreement is accurate. Therefore, there is 

clearly not a mutual mistake. The fact that 

the employer agreed to the claimant's 

calculation rather than the Commission's 

calculation is not in itself the basis for 

finding imposition. Nor is there any 

evidence of fraud. 

 The commission's findings are supported by the Memorandum of 

Agreement signed by employer and insurer's representative despite 

their knowledge that the commission's calculation of the average 

weekly wage differed from that stated in the Memorandum of 

Agreement. Contrary to the assertions of employer and insurer, 

no evidence established that the insurer did not have knowledge 

of the commission's wage calculations before its representative 

executed the Memorandum of Agreement and forwarded it to the 

commission. Robinson received the commission's calculations on 

September 8, 1995 and he did not execute the Memorandum of 

Agreement until September 13, 1995. Because no evidence showed 

that the Memorandum of Agreement was procured by fraud, mutual 

mistake, or imposition, we cannot say as a matter of law that the 

commission erred in refusing to vacate its award and to amend 

claimant's average weekly wage. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.