VIRGINIA 01/20/00
IN THE WORKERS’ COMPENSATION COMMISSION
JUAN A. HERNANDEZ, Claimant
Opinion by TARR
Commissioner
v. Claim No. 194-63-68
C D CARPENTRY, INC., Employer
CINCINNATI CASUALTY COMPANY, Insurer
Daniel P. Barrera, Esquire
for the claimant
William E. Glover, Esquire
for the defendants
REVIEW on the record before Commissioner Tarr, Commissioner Diamond and Commissioner Dudley at Richmond, Virginia.
The employer requests Review of the Deputy Commissioner’s September 3, 1999, Penalty Order assessing a 20 percent penalty pursuant to Code 65.2-524, for compensation not paid within two weeks after it became due commencing on June 9, 1999. The employer argues that because the claimant returned to work at his pre-injury average weekly wage on June 10, 1999, it was entitled to cease payments under the claimant’s open Award. We VACATE.
On February 23, 1999, the claimant filed an application for benefits alleging an injury by accident on January 28, 1999, and seeking continuing temporary total disability benefits and medical benefits. On March 31, 1999, the parties submitted a Memorandum of Agreement stating that the claimant was entitled to continuing temporary total disability benefits commencing January 28, 1999, based on a pre-injury average weekly wage of $524.71. On August 6, 1999, the Commission entered an Award Order based on the March 31, 1999, Memorandum of Agreement, for payment of continuing temporary total disability compensation and medical benefits beginning January 28, 1999.
The employer alleges that in the meantime, on June 10, 1999, the claimant returned to work at a wage equal to or greater than his average weekly wage. The employer supports this claim with a September 22, 1999, affidavit from its office administrator. The employer filed an application for a change in condition on September 24, 1999, alleging a return to work on June 10, 1999. That application is still pending.
In a letter filed August 23, 1999, counsel for the claimant advised the Commission that despite the August 6, 1999, Award Order, “the carrier has not paid the claimant any compensation since approximately June 9, 1999.” Claimant’s counsel requested an assessment of a 20 percent penalty on the unpaid compensation. By Order of September 3, 1999, the Deputy Commissioner assessed a 20 percent penalty pursuant to Code 65.2-524 on all compensation more than two weeks in arrears.
In its written statement, the employer argues that during the period between June 9, 1999, and June 24, 1999, it attempted to obtain the claimant’s signature on an Agreed Statement of Fact terminating the existing open Award based on the claimant’s return to his pre-injury work. The claimant did not sign the agreement. The claimant’s counsel then informed the employer that the claimant was again temporarily totally disabled due to his work injury. The employer blames its non-payment of benefits from June 10, 1999, to June 24, 1999, on the claimant’s failure to execute this agreement.1
Code 65.2-524 provides that: “If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof.” The language of Code 65.2-524 is mandatory, and its application has been strictly applied. The legislature has clearly and unambiguously provided for a 20 percent penalty when payment of benefits is not timely made, regardless of the fact that there may be a good excuse for the late payment. See Sanderson v. Corrections Adult Services, VWC File No. 164-78-40 (May 30, 1996).
There are three ways to terminate an award: (1) by the claimant’s execution of an Agreed Statement of Fact; (2) by the claimant’s execution of a Supplemental Memorandum of Agreement; or (3) by the employer’s filing of an appropriate application to terminate benefits. Smith v. Earl Haines, Inc., 62 OIC 422 (1983). Despite the employer’s alleged efforts, the claimant failed to execute the Agreed Statement of Fact. Therefore, the employer needed to file an application to terminate benefits. It did so, on September 24, 1999. Commission Rule 1.4 C 1 requires payment to date of return to work.
The employer was not required to make any payments after June 9, 1999, because of the pending Application for Hearing. If the Application is granted, then no further benefits or penalties are owed.
The employer voluntarily reinstated temporary total benefits on June 24 so the disputed period is June 10 to June 24, 1999. It appears that this issue might be resolved without the necessity of either an evidentiary or an on the record hearing.
The Deputy Commissioner’s September 3, 1999, Penalty Order is VACATED. This case is referred to the Commission’s mediation section.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within
thirty days from receipt of this Opinion.
1 The employer also concedes that the claimant is entitled to temporary total disability benefits from June 24, 1999. The employer has paid and continues to pay these benefits since September 1999.
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