COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

DAVID MICHAEL TOMLIN 

v. Record No. 2475-95-2 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

VANCE INTERNATIONAL, INC. MAY 21, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Gregory S. Hooe (Traylor & Morris; Joynes and 

Bieber of Richmond, P.C., on briefs), for 

appellant. 

 Lynne J. Fiscella (Cotter, Fiscella & 

Carleton, on brief), for appellee. 

 David Michael Tomlin appeals from the order of the Workers' 

Compensation Commission holding that Vance International, Inc. 

and its insurer did not waive subrogation rights in a settlement 

of his compensation claim. Because the employer unequivocally 

waived its subrogation rights when it settled Tomlin's workers' 

compensation claim, we reverse the commission's ruling. 

 Tomlin was employed as a security guard by Vance 

International. On September 9, 1989, Tomlin was assaulted during 

a riot and was severely injured. After the accident, the 

employer paid certain workers' compensation benefits pursuant to 

the Minnesota Workers' Compensation Act. Tomlin then elected to 

file a claim in Virginia pursuant to Code § 65.2-508. Vance 

International denied the claim initially but ultimately accepted 

it as compensable. On September 5, 1991, Tomlin filed suit 
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against several third parties who were allegedly responsible for 

his injuries. 

 On April 8, 1992, Vance International and Tomlin forwarded 

to the commission a petition, order, and affidavit setting forth 

the terms of a settlement of Tomlin's workers' compensation 

claim. The commission approved the petition on April 15, 1992. 

At various times after that date, Tomlin settled his claims 

against the third parties. Vance International asserts that it 

is subrogated to Tomlin's claim against the third parties and is 

entitled to reimbursement from the third-party settlement funds. 

 Tomlin maintains that Vance waived its subrogation rights when 

it settled the workers' compensation claim. Tomlin's counsel is 

holding the proceeds from the third-party settlements pending 

resolution of the subrogation issue. 

 The above facts were stipulated by the parties before the 

commission. The record also contains parol evidence in the form 

of correspondence exchanged by the parties during negotiations to 

settle the workers' compensation claim. The correspondence 

indicates that Vance International knew about the personal injury 

case in Minnesota and provided videos of the riot in order to 

assist Tomlin in that case. The correspondence also indicates 

that Tomlin was aware of "a potential worker's compensation lien 

being filed in Minnesota" and that Vance's assistance with the 

third-party claim was related to that lien in some manner. 

 The parties' petition to the commission provides, in 
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pertinent part: 

 This compromise settlement shall be 

binding upon the Claimant, the employer 

and/or its insurer and is intended to be a 

full and final settlement of any claims, 

demands and obligations, between the Claimant 

and/or the employer, or its insurance carrier 

which might be asserted by the Claimant 

and/or employer, or its insurance carrier, 

pursuant to the Virginia Workers' 

Compensation Act, Virginia Code Section 

65.2-100 et seq. 

* * * * * * * 

 The Claimant, employer and its carrier 

further represent that they understand and 

agree that this compromise agreement, upon 

approval, constitutes a full and final 

settlement of this claim and that the 

Claimant, employer and insurance carrier 

shall thereupon be forever released and 

discharged from any and all liabilities, 

past, present and future in connection with 

this case including but not limited to, 

benefits for work incapacity, vocational 

rehabilitation services, placement services, 

benefits for permanent disability, and any 

rights which might be alleged to arise under 

 Virginia Code Section 65.2-100 et seq., . . . . 

 The commission's order approving the petition provides, in 

pertinent part: 

 it is hereby 

 ORDERED that the employer and insurance 

carrier shall pay the sum of $86,000 to the 

Claimant in a lump sum and thereafter the 

parties shall be forever released and 

discharged from any and all past, present and 

future claims, demands and obligation [sic] 

in connection with this claim, including 

benefits for permanent disability, and rights 

which might be alleged to arise under 

 Virginia Code Section 65.2-100 et seq., . . . . 

 We construe the evidence in the light most favorable to the 
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party prevailing below. States Roofing Corp. v. Bush 

Construction Corp., 15 Va. App. 613, 616, 426 S.E.2d 124, 126 

(1993). The commission's factual findings will not be disturbed 

on appeal if supported by credible evidence. Bullion Hollow 

Enterprises, Inc. v. Lane, 14 Va. App. 725, 730, 418 S.E.2d 904, 

907 (1992). When the facts are undisputed, their interpretation 

is a matter of law. Wells v. Commonwealth, Department of 

Transportation, 15 Va. App. 561, 563, 425 S.E.2d 536, 537 (1993). 

 We are not bound by the commission's determination of legal 

questions. Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 

324, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 

905 (1993). 

 Under the Workers' Compensation Act, the employer/insurer is 

subrogated to an employee's rights against a third party 

responsible for the injuries giving rise to the payment of 

compensation. Code § 65.2-309(A). The purpose of the statute is 

to reimburse an employer who is compelled to pay compensation as 

a result of the negligence of a third party and to prevent an 

employee from obtaining a double recovery of funds. See Gartman 

v. Allied Towing Corp., 467 F. Supp. 439, 440 (E.D. Va. 1979). 

The employer's subrogation rights are triggered automatically 

when the injured employee files a claim against the employer and 

thereby assigns to the employer any claims against third parties. 

 Code § 65.2-309(A); Wood v. Caudle Hyatt, Inc., 18 Va. App. 391, 

395-96, 444 S.E.2d 3, 6-7 (1994). 
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 The commission agreed that the employer can waive its 

subrogation rights as part of a settlement but held that such a 

waiver must be in "clear and unequivocal language." The 

commission found that the petition contained no language that 

could be construed as a waiver. The commission also stated that 

"[t]he parties were well aware of the pending third-party claim 

when the workers' compensation claim was settled," and to that 

extent took parol evidence into account when making its decision. 

 It is well established that the employer/carrier can waive 

subrogation rights as part of a settlement. See Connell v. Aetna 

Life & Casualty, 436 A.2d 408, 410-11 (Me. 1981); Stephenson v. 

Martin, 259 N.W.2d 467, 470-71 (Minn. 1977); Welch v. Arthur A. 

Fogarty, Inc., 255 A.2d 627, 630-31 (Conn. 1969); 2A Arthur 

Larson, The Law of Workmen's Compensation, § 74.31(e), at 14-517 

(1983). There is also substantial authority to the effect that 

the waiver need not be express, but can be inferred from the 

language of the settlement agreement. 2A Larson, supra, 

§ 74.17(a), at 14-428; see also Stephenson, 259 N.W.2d at 470. 

However, accepting the commission's standard of a "clear and 

unequivocal" waiver, we hold that Vance International waived its 

subrogation rights when it settled the workers' compensation 

claim. 

 The settlement provides that the parties are released from 

all claims, demands, and obligations in connection with Tomlin's 

workers' compensation claim, and "any rights which might be 
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alleged to arise under Virginia Code Section 65.2-100," the 

Workers' Compensation Act. Subrogation rights "arise" under the 

Workers' Compensation Act, and arose here "in connection with" 

Tomlin's claim. This language clearly and unequivocally waives 

Vance International's subrogation rights. See Welch, 255 A.2d at 

631 (court interpreted similar language as unambiguously waiving 

the employer's right to recoup compensation from settlement 

funds; court also noted that the settlement did not reserve the 

right to recoupment nor did the parties inform the commissioner 

who approved the settlement of any intent to reserve that right). 

 Where a written instrument is clear and explicit and can be 

interpreted based on the ordinary meaning of the language used, 

the parties' intent is clear and cannot be altered through parol 

evidence. Nelson v. Commonwealth, 235 Va. 228, 246, 368 S.E.2d 

239, 249 (1988); Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 

337 (1984). Because the language of the settlement was clear, it 

was error for the commission to use parol evidence to interpret 

the parties' intent. For these reasons, we reverse the 

commission's decision. 

 Reversed and dismissed.