COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges 

VIRGINIA INDUSTRIAL SERVICE AND 

 CINCINNATI CASUALTY COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0653-03-3 PER CURIAM 

 AUGUST 19, 2003 

KENNETH SCOTT MILLER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Joseph C. Veith, III; Trichilo, Bancroft, 

McGavin, Horvath & Judkins, P.C., on brief), 

for appellants. 

 (A. Thomas Lane, Jr., on brief), for 

appellee. 

 Virginia Industrial Service and its insurer (hereinafter 

referred to as "employer") contend the Workers' Compensation 

Commission erred in finding that Kenneth Scott Miller's 

application seeking amendment of his pre-injury average weekly 

wage was "seasonably presented." Upon reviewing the record and 

the parties' briefs, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the commission's 

decision. Rule 5A:27.1

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

1

 Employer did not appeal the commission's finding that a 

mutual mistake occurred justifying amendment of claimant's 

average weekly wage. Accordingly, that finding is binding and 

conclusive upon us on appeal. 
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 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 "[T]he . . . Commission has the implied power, incidental 

to those expressly granted, to entertain and hear an 

application, seasonably presented, to vacate and set aside an 

award procured through fraud or mistake. Whether an application 

is seasonably made must necessarily depend upon the facts and 

circumstances of the particular case." Harris v. Diamond Const.

Co., 184 Va. 711, 721, 36 S.E.2d 573, 578 (1946). 

 In ruling that claimant seasonably filed his application 

seeking to amend his average weekly wage, the commission found 

as follows: 

The claimant first received compensation 

under an Award on June 5, 2000, and did not 

seek to amend the average weekly wage until 

January 23, 2002. Even then the claimant 

did not know of his precise wages, asserting 

only that the original average weekly wage 

figure incorrectly did not include overtime. 

The employer did not complete a Wage Chart 

until April 2002. 

 The claimant explained that he 

understood from the adjuster that overtime 

was not included in calculating his average 

weekly wage. Once he learned otherwise, in 

December 2001, he promptly filed the Claim 

to amend the figure. Under these 

circumstances, we believe that the Claim was 

seasonably made. 

 Based upon claimant's testimony, the commission, in its 

role as fact finder, could reasonably infer that claimant 
- 3 - 

sufficiently explained his delay in making a request for an 

amendment of his average weekly wage. "Where reasonable 

inferences may be drawn from the evidence in support of the 

commission's factual findings, they will not be disturbed by 

this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 

Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Having accepted 

the claimant's explanation as credible, the commission did not 

abuse its discretion in concluding that his application was 

"seasonably presented" under the facts and circumstances of this 

case. Harris, 184 Va. at 721, 36 S.E.2d at 578. 

 Accordingly, we affirm the commission's decision. 

Affirmed.