COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

TERRI LEE ROBINSON 

 MEMORANDUM OPINION*

v. Record No. 0839-99-3 PER CURIAM 

 SEPTEMBER 7, 1999 

OLAN MILLS, INC. AND 

 ZURICH INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (P. Scott DeBruin; DeBruin & Layne, P.C., on 

brief), for appellant. 

 (Charles F. Midkiff; Midkiff & Hiner, P.C., 

on brief), for appellees. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Terri Lee Robinson (claimant) contends that the Workers’ 

Compensation Commission (commission) erred in finding that the 

voluntary payment of compensation benefits to her for more than 

two years by Olan Mills, Inc. and its insurer (hereinafter 

referred to as "employer") did not constitute a de facto award. 

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. See Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 
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 So viewed, the evidence proved that on November 29, 1995, 

while working for employer as a photographer, claimant injured 

her neck and back. Employer voluntarily paid compensation 

benefits to claimant from November 29, 1995 through February 

1998, but did not file a Memorandum of Agreement with the 

commission. 

 On December 12, 1997, claimant filed a Claim for Benefits 

related to the November 29, 1995 incident. At the hearing, 

employer defended against the claim on the ground that claimant 

did not sustain a compensable injury by accident arising out of 

and in the course of her employment. 

 Based upon this record, we find that the commission did not 

err in ruling that a de facto award did not exist and that 

"employer defended the compensability of this claim in good 

faith, and that the employer's voluntary payment of benefits 

[did] not prevent it from contesting the compensability of the 

underlying claim." Here, employer did nothing more than make 

voluntary payments to claimant. "An employer and carrier are 

not estopped from denying future payments merely because they 

had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 

Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). 

 Claimant relies upon our holdings in National Linen Serv. 

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

City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App. 

Dec. 19, 1995), in support of her argument that a de facto award 
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existed in this case. However, those cases are factually 

distinguishable from this case. 

 In McGuinn, unlike this case, the employer stipulated to 

the compensability of the claim. McGuinn, 5 Va. App. at 271, 

362 S.E.2d at 190. Then, after accepting the claim as 

compensable, National Linen defended solely on the ground that 

McGuinn failed to market his residual work capacity. See id. at 

268, 362 S.E.2d at 188. In this case, employer never accepted 

the claim as compensable, and in fact, challenged the 

compensability of the claim at the hearing. 

 In Anderson, unlike this case, the employer accepted the 

claimant's condition as compensable before it stopped paying 

compensation benefits and challenged the causal relationship 

between the claimant's disability and his employment. 

 Because the commission did not err in finding that there 

was no de facto award, claimant bore the burden of proving that 

she sustained a compensable injury by accident arising out of 

and in the course of her employment. The commission ruled that 

claimant's evidence failed to sustain her burden of proof. She 

did not appeal that finding. Accordingly, it is binding and 

conclusive upon us on appeal. 

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

Affirmed.