COURT OF APPEALS OF VIRGINIA
Present: Judges Annunzi ata, Bumgardner and Frank Argued at Chesapeake, Virginia

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY MEMORANDUM OPINION * BY v. Record No. 1756-02-1 J UDGE ROSEMARIE ANNUNZIATA JANUARY 28, 2004 WILLIS M. RICHARDSON

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Benjamin M. Mason (Mason, Mason, Walker, & Hedrick, on brief), for appellant. Matthew H. Kraft (Gary R. West; Ru tter, Walsh, Mills, & Rutter, on brief), for appellee.

Willis M. Richardson suffered a work-related injury in 1998 and was awarded temporary total disability benefits. Newport News Shi pbuilding subsequently filed a change-of-condition application with the Workers’ Compensation Commission seeking to suspend the award of compensation. It cited two grounds, claiming thatRichardson had returned to his pre-injury work and, in the alternative, that he had subs equently retired from employment. The deputy commissioner found that Richardson’s retirement c onstituted a refusal of selective employment, and benefits were terminated after January 29, 1999. The commission affirmed the deputy commissioner’s decision, but modified it by orde ring that employer pay benefits through January 15, 2001. This appeal followed. For the following reasons, we reverse the commission.

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - I. Factual and Procedural Background Willis M. Richardson suffered a work-related injury and was awarded temporary total disability benefits of $416.93 per week beginni ng January 7, 1998. Richardson returned to work in the employer’s mailroom on December 10, 1998. He subsequently retired on January 1, 1999. On January 29, 2001, the employer filed an Appl ication for Hearing a sserting a change in condition. As grounds for its application, the em ployer argued that Richardson returned to work on December 10, 1998 and that he voluntarily retired on January 1, 1999. Relying on Rule 1.4(C)(1) and its contention that Richardson had returned to work on December 10, 1998, the employer paid benefits until January 29, 1999. The deputy commissioner issued an opinion on November 26, 2001, and found that the employer had made a bona fide job offer and that Richardson unjustifiably refused the offer of selective employment by his voluntary retireme nt on January 1, 1999. The deputy commissioner accordingly granted the employer’s January 29, 2001 application to termin ate the prior award and suspended benefits as of January 30, 1999. Richardson requested review of the de puty commissioner’s November 26, 2001 opinion. The issue before the full commission, as stated in their opinion letter of June 6, 2002, was the deputy commissioner’s finding that “the claimantrefused selective employment.” Upon review, the full commission affirmed the deputy commi ssioner’s opinion that Richardson’s voluntary retirement on January 1, 1999 constituted a refusa l of selective employment because the job in the mailroom was still available to him. However, the commission modified the deputy commissioner’s award, which had suspended the pa yment of benefits as of January 30, 1999, and ordered that employer pay benefits through January 15, 2001, citing Rule 1.4(C)(5). The commission concluded that the employer failed to prove that Richar dson had returned to pre-injury work, as alleged, on December 10, 1998. It accordingly ordered that the employer- 3 - was responsible for payment of benefits from January 30, 1999 to January 15, 2001 at the rate of $416.93 per week. The commission determined the date upon which benefits were to cease by applying Rule 1.4(C)(2), which pr ovides that benefits shall terminate on the date a claimant refuses selective employment or 14 days befo re the employer files its change-of-condition application. In the instant cas e, the latter fact was found de terminative because the commission found the employer failed to prove cl aimant had returned to work. The employer filed a Motion for Reconsiderati on asserting that it s hould only be required to pay compensation through January 29, 1999 b ecause Richardson returned to work in December 1998. The commission agreed, vacated it s June 6, 2002 opinion thirty-three days later on July 9, 2002, and issued a three-page op inion on October 10, 2002, reversing its prior decision. In its opinion, the commission found that Richardson had returned to his pre-injury work on December 10, 1998 and that payments beyond January 29, 1999, the date of employer’s last payment of benefits, were not warr anted. Its order reflected those findings. Conceding that the October 10, 2002 opinion of the commission was not timely issued, and is therefore not valid, the employer focu ses its appeal on the commission’s June 6, 2002 decision and asks that we revers e. Specifically, employer contends that the commission erred on June 6, 2002 in finding that it failedto show that Richardson return ed to work. We agree, and for the following reasons we reverse. II. Analysis On appeal, we view the evidence in the light most favorable to Richardson as the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We will not disturb factual findings of the commission if credible evidence supports them, Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991), and we construe the Workers’ Compensation Act liberallyin favor of the employee. Chesapeake and- 4 - Potomac Tel. Co. v. Williams, 10 Va. App. 516, 519, 392 S.E.2d 846, 848 (1990). Moreover, the party moving for a review of an award on the ground of a change in condition carries the burden to show such a change in condition by a preponderance of the ev idence. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986). In this case, the employer carries that burden. In determining that the employer failed to prove that claimant had returned to work, the commission erred because it misapprehended the implicit findings of the deputy commissioner. The issues before the deputy commissioner were two-fold. Employer sought termination of the commission’s October 6, 1998 award of compensation to Richardson on the grounds that (1) he had returned to his pre-injury work on December 10, 1998 and (2) that a bona fide offer of employment was made which Richardson unjus tifiably refused by retiring on January 1, 1999. Richardson defended against the al legation that he refused selective employment, claiming that the employer had not made a bona fide job offer to him because he had already notified employer of his intention to retire. However, he never claimed that he did not “return to work” within the meaning of Rule 1.4(C)(1). In fact, in its application for a hearing, employer indicated that “employee returned to pre-injury work on 12/10/98.” This assertion was never contested at the hearing. Thus, whether or not the employer failed to pay Richardson a salary equal to or greater than claimant’s pre-injury wage was not in dispute. See Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364 S.E.2d 4, 6 (1988) (noting that this Court will not consider an issue not brought befo re the commission for the first ti me on appeal). In short, that Richardson “returned to work,” as required by Ru le 1.4(C)(1), was not an issue at the deputy commissioner’s hearing. The sole issue be fore the deputy commissioner was whether Richardson’s return to work resulted from a bona fide job offer.- 5 - The deputy commissioner found that the employer, on December 10, 1998, made a bona fide job offer of selective employme nt to Richardson. It is uncon tested that Richardson accepted the offer of employment and began working inthe employer’s mailroom. Even though employer may have known about Richardson’s intent to retire, the deputy commissioner found that Richardson failed to prove that employer would have withdrawn its offer of employment before his retirement. The deputy commissioner further found that Richardson’s voluntary resignation constituted an unjustified refu sal of employment under Code § 65.2-510. He did not expressly find that Richardson returned to work on December 10, 1998. However, the deputy commissioner’s order implicitly resolved the ques tion of Richardson’s return to work in favor of the employer because he ordered payment suspended as of January 30, 1999, a date consistent with such a finding. See Rule 1.4(C). That fi nding was supported by evid ence that the offer of selective employment was bona fide , that Richardson was employe d in that position, and that Richardson never contested that he “returned to work.” See Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 167-68, 543 S.E.2d 619, 621 (2001 ) (noting that we will not disturb findings of the commission when supported by credib le evidence). We accordingly find that the full commission’s determination that employer failed to prove that Richardson returned to pre-injury work was plainly wrong because it was not supported by any credible evidence. Id. Richardson contends that our holding in Od in, Inc. v. Price, 23 Va. App. 66, 474 S.E.2d 162 (1996), requires employer to prove that claimant returned to work at a wage equal to or greater than his pre-injury wage. Odin does not stand for that proposition. It stands only for the proposition that employer must file a change-in-cond ition application or a st atement of facts if it suspends payments. In Odin, the employer term inated benefits under an outstanding award after claimant returned to light-duty work at a wage lo wer than his pre-injury weekly wage. Id. at 69, 474 S.E.2d at 162. The employer did not file a change-of-condition application. Id. at 72, 474- 6 - S.E.2d at 165. Nor did it file an Agreed Statement of Fact memorializing the return to work or an employer’s application for hearing. Id. We found that the commission properly assessed a penalty against employer for late payment of an award. Id. We also found that employer’s reliance in Odin on Rule 1.4(C) was misplaced and that it could not justify its termination of benefits on the date employee returned to light-duty work because the employer had never filed a change-of-condition application alleging the return to work. “The plain language of Rule 1.4(C)(1) allows an employer to cease payment of compensation on the date an employee returns to work only when the employer files an applic ation alleging the employee returned to work.” Id. at 71, 474 S.E.2d at 164. Here, employer filed a change-of-condition appl ication alleging claimant had returned to work. The deputy commissioner implicitly found th e evidence supported thatallegation. In the subsequent hearing before the commission, the record discloses no basis upon which it could conclude that employer failed to prove Richardson returned to work. As such, the decision reversing the deputy commissioner’s decision cons titutes reversible error. See North v. Landmark Communications, 17 Va. App. 639, 640, 440 S.E.2d 156, 156 (1994). We therefore reverse the decision of the commission and remand for entry of an order consistent with this opinion. Reversed and remanded.