EI DU PONT DE NEMOURS v. Eggleston

• Decision Date: 07 June 2002
• Docket Number: Record No. 011739.
• Citation: 264 Va. 13,563 S.E.2d 685
• Court: Virginia Supreme Court
• Parties: E.I. DU PONT DE NEMOURS and Company, v. Brenda G. EGGLESTON.

563 S.E.2d 685

264 Va. 13

E.I. DU PONT DE NEMOURS and Company, v. Brenda G. EGGLESTON.

Record No. 011739.

Supreme Court of Virginia.

June 7, 2002.

Joy C. Fuhr (Stephen D. Busch, Kimberly R. Hillman, McGuireWoods, on briefs), for appellant.

Wesley G. Marshall, for appellee.

Present: All the Justices.

LACY, Justice.

Brenda G. Eggleston was employed by E.I. du Pont de Nemours and Company (Du Pont). During her employment, she received temporary incapacity payments under the Workers' Compensation Act for three different injuries arising out of her work. Eggleston was diagnosed with work-related bilateral carpal tunnel syndrome on September 28, 1989. She was awarded temporary total incapacity benefits for a four-week period from September 26, 1990 through October 30, 1990 and permanent partial incapacity benefits from January 30, 1992 through July 29, 1992. Next, Eggleston received temporary total incapacity benefits for a five-week period in 1992 as a result of an injury to her right shoulder.

On March 9, 1993, Eggleston was awarded temporary partial incapacity benefits of $74.35 per week based on a diagnosis of bilateral gamekeepers' thumb. Although Du Pont did assign Eggleston to light duty work because of her physical conditions, ultimately Du Pont terminated Eggleston for medical reasons on November 30, 1993.

Immediately following her termination and while receiving temporary partial incapacity benefits for the gamekeepers' thumb injury, Eggleston filed an application for a change of condition seeking temporary total incapacity benefits under her gamekeepers' thumb claim, but later, by amended application, sought permanent incapacity benefits, based on all three injuries. Following a hearing in 1994, the deputy commissioner awarded Eggleston temporary total incapacity benefits stating that Eggleston's "physical limitations are the result of bilateral gamekeepers thumb, bilateral carpal tunnel syndrome and right shoulder problems." The amount of the weekly payment was based on Eggleston's wages at the time she suffered her gamekeepers' thumb injury. Du Pont did not appeal the decision of the deputy commissioner.

In February 1999, Du Pont filed a change in condition application under all three of Eggleston's claim files, seeking various reductions in, and credits for, the incapacity payments it was making. As relevant to this appeal, Du Pont asserted that Eggleston's gamekeepers' thumb injury had resolved itself and that the incapacity award should be appropriately reduced. Du Pont also asserted that it was entitled to a weekly credit against each injury toward the 500-week maximum recovery period established by Code § 65.2-518, rather than a credit limited to the gamekeepers' thumb injury, the crediting mechanism imposed by the Commission.

Based on the evidence produced, the deputy commissioner concluded that the gamekeepers' thumb injury had resolved itself, and went on to hold that because the 1994 award was "based upon a finding that the claimant was disabled in part from all three compensable conditions, the employer has now established that the claimant's disability is due only to her two remaining conditions: bilateral carpal tunnel syndrome and the right shoulder injury." The deputy commissioner directed that the weekly incapacity payment be based on Eggleston's highest weekly wage at the time she was diagnosed with bilateral carpal tunnel syndrome and that the payments made under the award be credited against the bilateral carpal tunnel injury claim.

The deputy commissioner denied Du Pont's request that it receive credit against each of the underlying injuries, rather than just the gamekeepers' thumb injury, for each week that it paid the 1994 award, concluding that such credit was not authorized under the Workers' Compensation Act and, therefore, the weekly payments under the 1994 award had been properly credited to the gamekeepers' thumb injury only. The decision of the deputy commissioner was affirmed by the Commission and by the Court of Appeals. E.I. Du Pont De Nemours And Co. v. Eggleston, Record No. 2648-00-2, 2001 WL 747694, 2001 Va.App. LEXIS 394 (Va.App. July 3, 2001) (unpublished). On appeal, Du Pont again asserts that it was entitled to a credit for purposes of Code § 65.2-518 against each of Eggleston's injuries for each payment it made pursuant to the 1994 award.

We begin our analysis of the issue presented in this appeal mindful of two principles to be applied when considering benefits and awards available under the Workers' Compensation Act, Code §§ 65.2-100 through 1310 (the Act). First, "[t]he right to compensation under the workmen's compensation law is granted by statute, and in giving the right the legislature had full power to prescribe the time and manner of its exercise." Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954). Second, the Act is remedial legislation and should be liberally construed in favor of the injured employee. Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729 (1944).

As both the Commission and Court of Appeals recited, the General Assembly authorized crediting a single payment as more than one week for purposes of Code § 65.2-518, in only one instance. That instance is where the claimant is receiving a benefit for both a permanent loss and a benefit for partial incapacity. Code § 65.2-503(E)(2) authorizes an employer to make a single payment comprised of the amount due an employee pursuant to an award of permanent loss (Code § 65.2-503) and partial incapacity (Code § 65.2-502) and provides that such single payment must be credited as two weeks compensation for purposes of the 500-week compensation limitation.

This section, of course, does not apply in this case because this case involves one, not two, awards and does not involve an award for a temporary partial and a contemporaneous award for permanent loss. However, a well-recognized rule of statutory construction, expressio unius est exclusio alterius, provides that the mention of a specific item in a statute implies that other omitted items were not intended to be included within the scope of the statute. Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000); Board of Supervisors v. Wilson, 250 Va. 482, 485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992). Thus, specifically allowing a simultaneous or double crediting for two awards under the circumstances contemplated by Code § 65.2-503(E)(2) and not providing for such double crediting for the purpose of Code § 65.2-518 under any other circumstances, leads us to the conclusion that the General Assembly did not authorize or intend to authorize a double credit in circumstances in which the General Assembly has not authorized either a combined payment for more than one award or a double credit for a single payment.

Nevertheless, Du Pont argues in this appeal that the failure to simultaneously credit the 1994 award against each of Eggleston's injuries violates Code § 65.2-518 by allowing more than 500 weeks of compensation for a single injury.

The difficulty in this case is the nature of the injury upon which the 1994 award was based. The relevant portion of the deputy commissioner's opinion in 1994 stated:

From the evidence we find that the claimant continues to have marked physical restrictions as revealed by the medical records and her own testimony at hearing. Claimant's physical limitations are the result of bilateral gamekeepers thumb, bilateral carpal tunnel syndrome and right shoulder problems. As a result of her physical limitations she was provided some light duty work with the employer but this did not prove to be consistent with her abilities and accordingly she was terminated from employment for physical reasons. Given this circumstance, we find ample justification for finding that the claimant... is not able to perform her pre-injury or even light duty work provided by her employer.

The deputy commissioner also found that the claimant had tried to find other employment, but was unsuccessful. The deputy commissioner then proceeded to enter "[a]n award... for the payment of temporary total disability benefits."

The deputy commissioner unquestionably determined that the claimant qualified for temporary total incapacity benefits, but did not identify the specific injury upon which he based his award. The significance of this omission arises from the mandates of the Workers' Compensation statutes. Code § 65.2-506 provides that a claimant may not receive compensation for more than one injury at a time and Code § 65.2-518 provides that a claimant may not receive more than 500 weeks of compensation for any injury.¹ Identification of the injury is essential to the application of these statutes.

Du Pont's position that the award should be credited against each injury for purposes of the compensation limit of Code § 65.2-518 depends on its characterization of the award as a "combined award" based on three separate injuries. However, one award for three separate injuries violates Code § 65.2-506's prohibition against paying benefits for more than one injury at a time.

Du Pont made no attempt in 1994, and does not argue here, that the award was or should have been somehow apportioned among the three injuries based on each injury's contribution to the disabling...