COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

EWC CONSTRUCTION, ET AL. 

v. Record No. 1474-95-4 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

KENNETH ARNOLD PAYNE MARCH 12, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William C. Walker (Bradford C. Jacob; Taylor 

& Walker, P.C., on brief), for appellants. 

 Edward P. Cuccias for appellee. 

 On September 7, 1993, Kenneth Payne ("claimant") suffered an 

accidental injury arising out of and in the course of his 

employment with EWC Construction ("employer"). Employer accepted 

claimant's claim as compensable and paid him benefits for total 

incapacity from September 14 through September 29, 1993 pursuant 

to an award entered February 11, 1994. On December 1, 1994, 

claimant filed an application for hearing alleging a change in 

condition and seeking reinstatement of compensation for total 

incapacity beginning April 15, 1994. The deputy commissioner 

entered an award for claimant which the full commission affirmed. 

 On appeal, employer contends the commission erred in concluding 

that claimant was not required to prove that he had reasonably 

marketed his residual work capacity. We disagree, and, for the 

 

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

designated for publication. 
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reasons that follow, affirm. 

BACKGROUND

 Claimant worked as a bricklayer for twenty-two years. On 

September 7, 1993, he suffered a back injury while working for 

employer. Claimant received treatment from Dr. W. Bartley Hosick 

who ordered claimant not to work for two or three weeks. 

Employer accepted claimant's claim as compensable and paid him 

benefits for total incapacity from September 14 through September 

29, 1993 pursuant to an award entered February 11, 1994. 

Claimant returned to work for employer, but he could work only 

part-time due to his back pain. 

 Claimant continued to see Dr. Hosick who noted claimant's 

continuing symptoms which were unexplained by an early 1994 bone 

scan. Dr. Hosick eventually diagnosed claimant's condition as a 

chronic lumbar strain. Because of claimant's symptoms and Dr. 

Hosick's belief that claimant suffered a significant muscular 

ligamentous injury to the lower back, Dr. Hosick ordered claimant 

to stop working in mid-April 1994 and referred him to a work 

hardening program. At that time, employer began paying claimant 

compensation for his total incapacity to work. However, employer 

failed to file a memorandum of agreement reflecting its payments. 

 Claimant's work hardening continued from April 15 to May 27, 

1994 but was discontinued because claimant's condition failed to 

improve. An MRI conducted at that time failed to identify the 
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source of claimant's continuing problem. Dr. Hosick referred 

claimant to a spine specialist for evaluation and recommended 

that claimant return to work on "a limited capacity" basis if the 

spine specialist found no further treatment was necessary. 

 Dr. Neal Kahanovitz evaluated claimant on July 25, 1994 and 

found no neurological or structural abnormalities. Concluding 

that no further treatment was indicated, Dr. Kahanovitz found 

that claimant could return to work on a "medium lifting capacity" 

basis. Claimant did not return to work. However, employer 

continued paying him total incapacity benefits until October 7, 

1994. 

 After employer ceased paying benefits, claimant filed an 

application alleging a change in condition beginning April 15, 

1994, the day on which he stopped working. The deputy 

commissioner found that employer had accepted claimant's change 

in condition when it reinstated benefits in April 1994. Because 

employer continued to pay claimant benefits without filing a 

supplemental memorandum of agreement, the deputy commissioner, 

applying National Linen Service v. McGuinn, 5 Va. App. 265, 362 

S.E.2d 187 (1987), placed the burden of proving a subsequent 

change in condition on employer. The deputy commissioner 

concluded that employer, who did not appear at the hearing, had 

not shown such a change in condition and awarded claimant total 

incapacity benefits commencing April 15, 1994.1

 The full 

 

 1 The award provided employer a credit for the payments 

it had voluntarily made. 
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commission affirmed, finding that there was no disagreement that 

claimant was totally disabled beginning April 15, 1994. The 

commission concluded that claimant's condition had changed, 

employer was aware of the change, employer participated in the 

change, and employer had an obligation under Code § 65.2-701 to 

file a memorandum of agreement reflecting that a change occurred. 

ANALYSIS

 Under Code § 65.2-708, 

 upon the application of any party in 

interest, on the ground of a change in 

condition, the Commission may review any 

award and on such review may make an award 

ending, diminishing or increasing the 

compensation previously awarded. 

The party alleging a change of condition has the burden of 

proving the allegation by a preponderance of the evidence. See

Jones Construction Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 

202, 204 (1956); Pilot Freight Carriers, Inc. v. Reeves, 1 Va. 

App. 435, 438-39, 339 S.E.2d 570, 572 (1986). 

 Generally, partially disabled claimants seeking an award for 

total incapacity, whether on initial application or on 

application for change of condition, must prove that they have 

made a reasonable effort to market their residual work capacity. 

See, e.g., Washington Metropolitan Area Transit Authority v. 

Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 654-55 (1985); cf.

Georgia Pacific Corp. v. Dancy, 17 Va. App. 128, 134, 435 S.E.2d 

898, 901-02 (1993) (totally disabled claimants seeking award for 

total incapacity not required to prove they made a reasonable 
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effort to market their residual capacity); National Linen Service 

v. McGuinn, 5 Va. App. 265, 271, 362 S.E.2d 187, 190 (1987) (en 

banc) (same). Conversely, once a claimant receives benefits 

pursuant to an award for total incapacity, the employer bears the 

burden of showing a change in condition when the claimant's 

condition improves. See Foust Coal Co. v. Messer, 195 Va. 762, 

768, 80 S.E.2d 533, 537 (1954); McGuinn, 5 Va. App. at 270, 362 

S.E.2d at 189-90. In such a case, the employer must prove "a 

change as would enable [claimant] at least to do some kind of 

selective work within his then capacity." Messer, 195 Va. at 

768, 80 S.E.2d at 537; see also McGuinn, 5 Va. App. at 270, 362 

S.E.2d at 190 (employer must introduce evidence that claimant 

either able to return to regular employment or had been offered 

or provided selective employment within his capacity). 

 Here, claimant filed an application alleging a change in 

condition as of April 15, 1994, the day his doctor ordered him to 

stop working. Employer does not dispute that claimant was 

totally incapacitated from work as of that date and that 

claimant's condition had changed.2

 Indeed, employer concedes 

that it owed claimant compensation during the six weeks he 

engaged in work hardening, and it had, in fact, resumed payment 

of total incapacity benefits on April 15. For these reasons, we 

 

 2 Since claimant was totally incapacitated as of April 

15, he was not required to establish that he had made a 

reasonable effort to market his residual work capacity to meet 

his burden of proving a change in condition on that date. 
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find the evidence clearly supports the commission's finding that 

claimant underwent a change of condition on April 15. By 

statute, the burden was thereafter on employer to prove any 

subsequent change in claimant's condition. 

 Employer attempts to escape this result by arguing that by 

the time claimant filed his application, in December 1994, 

claimant was only partially disabled and was, therefore, required 

to establish that he had made a reasonable effort to market his 

residual work capacity. Employer's argument is flawed in three 

major respects. 

 First, claimant's application was based on a change of 

condition alleged to have occurred on April 15, 1994. As 

discussed above, the parties did not dispute that claimant was 

totally incapacitated as of April 15. 

 Second, employer's argument assumes a finding of fact the 

commission never made, viz., that claimant was only partially 

disabled. The issue before the commission was whether claimant 

established a change of condition as of April 15 which entitled 

him to total incapacity benefits, not whether claimant's 

condition had improved by some later date. 

 Finally, but for employer's failure to file a memorandum of 

agreement as required by Code § 65.2-701,3

 reflecting its payment 

 

 3 Code § 65.2-701 provides, in part: 

 [i]f after injury . . . the employer and the 

injured employee . . . reach an agreement in 
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of total incapacity benefits to claimant beginning April 15, an 

award based on total incapacity would have been entered in 

claimant's behalf contemporaneous with his April 15 change in 

condition.4

 Had such an award been entered, "employer would have 

been obligated to honor the award" until it established a 

subsequent change of condition. McGuinn, 5 Va. App. at 270, 362 

S.E.2d at 189; see also Messer, 195 Va. at 768, 80 S.E.2d at 537; 

Martin, 198 Va. at 373, 94 S.E.2d at 204; Reeves, 1 Va. App. at 

(..continued) 

regard to compensation or in compromise of a 

claim for compensation under this title, a 

memorandum of the agreement in the form 

prescribed by the Commission shall be filed 

with the Commission for approval. The 

agreement may be prepared by the employee, 

the employer or the compensation carrier. 

 . . . Nothing herein contained shall be 

construed so as to prevent settlements made 

by and between the employee and employer, but 

rather to encourage them . . . . A copy of 

such settlement agreement shall be filed with 

the Commission by the employer. 

 4 Based on the undisputed finding that claimant underwent 

a change of condition rendering him totally incapacitated, had 

employer properly filed a memorandum of agreement, the commission 

clearly would have entered an award in claimant's behalf. See

McGuinn, 5 Va. App. at 270, 362 S.E.2d at 189. 
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438-39, 399 S.E.2d at 572. Employer's failure to file a 

memorandum of agreement violated the statute, and it cannot use 

its failure to comply with the statute as a means of 

circumventing the burden it would otherwise face. See McGuinn, 5 

Va. App. at 270, 362 S.E.2d at 189-90 ("To hold otherwise would 

be to allow an employer or its carrier to unilaterally violate 

the clear requirements of § [65.2-701] and thereby frustrate the 

purpose behind that statute."). 

 Employer argues that the result claimant urges and which we 

reach here will discourage employers from making voluntary 

payments to settle claims and that the result therefore 

undermines the purposes of the Act. Indeed, the Act encourages 

voluntary settlement of compensable claims. See Code 

§ 65.2-701(C); McGuinn, 5 Va. App. at 268, 362 S.E.2d at 188. 

However, the result reached here was caused not by employer's 

attempt to settle the claim but, rather, by its failure to record 

the settlement by filing a memorandum of agreement as required by 

statute. Employer ignores the "equally strong policy that when 

agreements as to settlements are reached they . . . be 

memorialized in a memorandum of agreement filed with the 

commission." See McGuinn, 5 Va. App. at 268, 362 S.E.2d at 

188-89. This policy serves the fundamental purpose of the Act: 

"to protect employees, not to facilitate a deprivation of an 

employee's rights by an employer who has not complied with the 

statutory requirements." McGuinn, 5 Va. App. at 270, 362 S.E.2d 
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at 190 (citation omitted). 

 Accordingly, the commission's award is affirmed. 

Affirmed.