COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Elder 

Argued at Richmond, Virginia 

COLONNADES MARRIOTT SENIOR LIVING 

and 

CONTINENTAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0761-97-2 JUDGE JERE M. H. WILLIS, JR. 

 NOVEMBER 4, 1997 

PRINCESS ELIZABETH DURDEN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Roger L. Williams (Vasiliki Moudilos; 

Williams & Lynch, on brief), for appellants. 

 Robert L. Flax for appellee. 

 Colonnades Marriott Senior Living and Continental Insurance 

Company (Colonnades) appeal from a decision of the Virginia 

Workers' Compensation Commission granting temporary total 

disability benefits to Princess Elizabeth Durden. Colonnades 

contends (1) that the commission erred in amending Durden's 

average weekly wage, and (2) that no credible evidence supports 

the commission's finding that Durden sustained a continuing 

disability related to her original work-place injury. We affirm 

the commission's award. 

I. BACKGROUND 

 On May 21, 1994, Durden, a registered nurse, injured her 

right shoulder while moving a patient at Colonnades where she 

worked on alternate weekends assisting patients with daily tasks 

 

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

designated for publication. 
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and distributing medication, earning $134.08 per week. She also 

worked a full-time job at Region Ten Community Services (Region 

Ten), earning $310.76 per week. Her responsibilities at Region 

Ten included ordering supplies, distributing medicine and 

administering injections. 

 On May 4, 1995, Durden sought temporary total disability 

benefits from Colonnades. The parties stipulated that her 

average weekly wage was $134.08 and that she had sustained a 

work-related injury to her right shoulder on May 21, 1994. The 

deputy commissioner held that Durden had sustained a compensable 

injury and awarded her medical benefits. However, because Durden 

had missed only one day of work at Colonnades, the deputy 

commissioner denied wage benefits. See Code § 65.2-509. The 

deputy commissioner noted that: 

 Although the claimant acknowledged she did 

not return to her employment at Colonnades 

following her work-related accident on May 

21, 1994, she was not scheduled on May 23 and 

24, 1994, and there is no claim that the 

employment at Region Ten is "similar,". . . 

to that which she was doing at Colonnades. 

 The pain in Durden's right shoulder continued. An August 

12, 1994 patient record from Prompt Care noted that Durden had 

experienced a resurgence of pain in her right shoulder, after 

being free of pain for several weeks. A February 23, 1995 office 

report from The McKenzie Institute noted that Durden experienced 

soreness, culminating in pain, in her left and right shoulders. 

On March 6, 1995, Dr. S. Hughes Melton saw Durden for bilateral 
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shoulder pain and wrote that her medical "history is rather 

atypical and conflicting in nature." On March 21, 1995, he noted 

that Durden may have suffered from "sick building syndrome" and 

fibrositis. On May 8, 1995, Dr. Melton noted some improvement in 

Durden's shoulder pain. 

 A May 19, 1995 radiology report from the University of 

Virginia Health Sciences Center noted bilateral degenerative 

changes. In a letter to Cynthia Rathgeb, a claims analyst, 

Dr. Barbara S. True linked Durden's shoulder symptoms to 

degenerative arthritis. 

 On January 17, 1996, magnetic resonance imaging confirmed 

the presence of a small subacromial osteophyte, which "may cause 

impingement." On January 19, 1996, Dr. Donald A. DeGrange 

diagnosed impingement, noting in the record that Durden had 

injured her right shoulder two years previously in a work-place 

accident and had suffered intermittent pain which had increased 

over the previous twelve months. 

 On April 15, 1996, Durden underwent right shoulder 

arthroscopy with arthroscopic subacromial decompression and 

bursal debridement. Following the surgery, she received physical 

therapy, steroid injections and chiropractic treatment. 

 On May 6, 1996, Durden sought temporary total disability 

benefits due to a change in condition. She also sought amendment 

of her average weekly wage to include her earnings at both 

Colonnades and Region Ten. Pursuant to Durden's interrogatory 
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responses, the deputy commissioner limited the claim to a period 

of disability from April 15, 1996 through May 25, 1996. 

 Durden testified that she had injured her right shoulder in 

1977 and in 1986. Dr. Clair Tansey reported in an office note 

following an October 23, 1986 visit that Durden experienced 

continuous numbness over her right shoulder and intermittent pain 

in her shoulder and fingers. 

 Following an ore tenus hearing, the deputy commissioner held 

on December 20, 1995 that Durden had sustained a continuing 

disability and awarded her temporary total disability benefits. 

He denied amendment of Durden's average weekly wage to include 

her income from Region Ten, concluding that: 

 [L]ack of knowledge of the law is not a 

mutual mistake of fact. The opportunity was 

available to address the similarity of 

employments [at the December 14, 1995 

hearing], and we do not find that because the 

request was not made such failure equates to 

either imposition or mutual mistake of fact. 

 On review, the full commission affirmed in part, finding 

that "the evidence sufficiently establishes disability related to 

the industrial injury." However, the commission reversed the 

deputy commissioner's refusal to amend the average weekly wage, 

deciding that: "neither the parties nor the Commission may have 

been aware that the claimant's wages at Region Ten could be 

relevant to an award of compensation benefits which constitutes a 

mutual mistake of fact." Determining that the two employments 

were "similar," the commission amended Durden's average weekly 
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wage to include her earnings at Region Ten. 
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II. AVERAGE WEEKLY WAGE 

 A. 

 Colonnades contends that the commission erred in amending 

Durden's average weekly wage to include her earnings from Region 

Ten. It argues that the December 20, 1995 award is a binding 

adjudication of the wage amount. 

 In pertinent part, "average weekly wage" means: "[t]he 

earnings of the injured employee in the employment in which he 

was working at the time of the injury during the period of 

fifty-two weeks immediately preceding the date of the injury, 

divided by fifty-two." Code § 65.2-101(1)(a). The determination 

of the average weekly wage is a question of fact to be determined 

by the commission, and that determination will not be disturbed 

on appeal unless it is unsupported by credible evidence. See

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441-42, 

339 S.E.2d 570, 573 (1986) (determining future average weekly 

wage question of fact). 

 The parties' stipulation to Durden's average weekly wage 

related to her earnings from Colonnades. We have recognized the 

value of stipulations and have noted that they "'save both time 

and expense for the litigants and are to be encouraged and not 

condemned.'" Avon Products v. Ross, 14 Va. App. 1, 9, 415 S.E.2d 

225, 229 (1992) (quoting Harris v. Diamond Construction Co., 184 

Va. 711, 724, 36 S.E.2d 573, 579 (1946)). 

 However: 

 It seems to us that when the General Assembly 
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established the Industrial Commission for the 

summary disposition of cases arising out of 

industrial accidents, it intended that that 

tribunal should have jurisdiction to do full 

and complete justice in each case. It 

granted to the Commission the power and the 

authority not only to make and enforce its 

awards, but to protect itself and its awards 

from fraud, imposition and mistake. 

Harris, 184 Va. at 720, 36 S.E.2d at 577. Thus, while "[a] 

compensation award is an adjudication of the entitlements and 

obligations of the parties . . . [and as such] continues 

according to its terms until it is modified or vacated," Rossello 

v. K-Mart Corp., 15 Va. App. 333, 336, 423 S.E.2d 214, 216 

(1992), the commission may vacate an award from which no party 

sought timely appeal where the record discloses a mutual mistake 

of fact. See Butler v. City of Virginia Beach, 22 Va. App. 601, 

604, 471 S.E.2d 830, 832 (1996). 

 "In determining whether a mutual mistake of fact existed at 

the time of the agreement, the inquiry is . . . whether each 

party held the same mistaken belief with respect to a material 

fact at the time the agreement was executed." Collins v. 

Department of Alcohol Beverage Control, 21 Va. App. 671, 681, 467 

S.E.2d 279, 283 (1996), aff'd, 22 Va. App. 625, 472 S.E.2d 287 

(1996). 

 Durden and Colonnades agreed to an average weekly wage. 

However, their stipulation contained a mutual misstatement of 

fact insofar as it sought to establish Durden's total weekly 

wage. "The reason for calculating the average weekly wage is to 
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approximate the economic loss suffered by an employee . . . when 

there is a loss of earning capacity because of work-related 

injury." Bosworth v. 7-Up Distributing Co., 4 Va. App. 161, 163, 

355 S.E.2d 339, 340 (1987) (emphasis in original). 

 At the time of the first proceeding, only Durden's job with 

Colonnades and her earnings therefrom appeared relevant. Because 

she sought no compensation for lost work at Region Ten, the 

calculation of her economic loss excluded employment from which 

she suffered no loss of employment. The inference to be drawn 

from the stipulation is that the parties intended to determine 

only the wages relevant to that proceeding. Had the parties been 

aware that Durden would require surgery and would suffer loss of 

earnings from Region Ten, their considerations would have been 

different. Cf. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 

601, 615, 401 S.E.2d 200, 208 (1991) (holding that had the 

commission been aware that its refusal to reopen the file would 

forever preclude presentation of evidence, it might have reopened 

the claim). Thus, the evidence supports the commission's finding 

that a mutual mistake of fact existed at the time the parties 

agreed to the stipulation. 

 B. 

 Colonnades contends also that Durden's employment at 

Colonnades and Region Ten was dissimilar. Thus, Colonnades 

argues that Durden's earnings from both employments may not be 

aggregated in calculating the average weekly wage. "The 
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'dissimilar employment rule,' an interpretive rule adopted by the 

commission, excludes wages earned in concurrent dissimilar 

employment from an employee's 'average weekly wages.'" City of 

Fairfax v. Massey, 11 Va. App. 238, 239-40, 397 S.E.2d 679, 680 

(1990) (citing Hudson v. Arthur Treachers, 2 Va. App. 323, 326, 

343 S.E.2d 97, 99 (1986)). 

 The commission found that Durden "utilizes essentially the 

same nursing skills at both Colonnades and Region Ten, therefore, 

the employments are similar." Durden testified that she provided 

patient care, distributed medications, administered insulin 

injections and performed chart work at Colonnades. At Region 

Ten, she ordered supplies, distributed medications and 

administered injections. Occasionally, she would assist a 

patient from the clinic to a chair. 

 The findings of the commission, if based upon credible 

evidence, are conclusive and binding upon this Court. Morris v. 

Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 

S.E.2d 876, 877 (1986). Credible evidence supports the 

commission's finding that Durden's employment at Colonnades and 

her employment at Region Ten were similar. 

III. CHANGE IN CONDITION 

 Colonnades contends that the commission erred in granting 

Durden's application for a change in condition. Colonnades 

argues that no credible evidence supports the commission's 

finding that Durden's disability is related to her work-place 
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injury. 

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

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

"Decisions of the commission as to questions of fact, if 

supported by credible evidence, are conclusive and binding on 

this Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 

229, 409 S.E.2d 824, 826 (1991). See Code § 65.2-706. "The fact 

that contrary evidence may be in the record is of no consequence 

if there is credible evidence to support the Commission's 

findings." Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 

S.E.2d 824, 826 (1986). 

 The evidence revealed that Durden suffered a work-place 

injury. As a result, she began experiencing steadily increasing 

pain in her right shoulder. While she suffered pain in her left 

shoulder also, Durden attributed that pain to her inability to 

use her right arm. Following a number of treatment strategies 

and diagnoses, magnetic resonance imaging displayed a bone 

impingement. The diagnosis of impingement syndrome was based 

upon a medical history that included Durden's work-place injury. 

 The commission's finding that the evidence established a 

causal relationship between Durden's current disability and her 

work-place injury is supported by credible evidence. The 

commission reviewed the evidence thoroughly. It interpreted the 

medical records and Durden's testimony to support her assertion 
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that she had suffered a change in physical condition caused by 

her work-place injury. Specifically, the commission found that: 

 "The medical reports contain a consistent history of injury and 
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corroborate the claimant's testimony regarding persistent right 

shoulder pain since the accident which necessitated surgery." 

 The award of the commission is affirmed. 

 Affirmed.