N. Va. Cmty. Coll. v. Easwarachandran

• Decision Date: 21 July 2020
• Docket Number: Record No. 0213-20-2
• Court: Virginia Court of Appeals
• Parties: NORTHERN VIRGINIA COMMUNITY COLLEGE/COMMONWEALTH OF VIRGINIA v. JAYANTHI EASWARACHANDRAN

NORTHERN VIRGINIA COMMUNITY COLLEGE/COMMONWEALTH OF VIRGINIA v. JAYANTHI EASWARACHANDRAN

Record No. 0213-20-2

COURT OF APPEALS OF VIRGINIA

JULY 21, 2020

UNPUBLISHED

Present: Judges Petty, O'Brien and Senior Judge Frank

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Emily O. Sealy, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

No brief or argument for appellee.

The Northern Virginia Community College (employer) was ordered to pay Jayanthi Easwarachandran (claimant) $778.03, which was the cash value of sick and personal leave claimant used during her recovery from a compensable work injury. On appeal, employer argues that the Commission erred in finding that employer did not reinstate claimant's leave and therefore awarding claimant $778.03.¹ For the following reasons, we disagree and affirm.

I. BACKGROUND

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. "Under our standard of review, when we consider an appeal from the commission's decision, wemust view the evidence in the light most favorable to the party who prevailed before the commission." K & K Repairs & Const., Inc. v. Endicott, 47 Va. App. 1, 6 (2005).

The parties agree that claimant suffered a compensable work-related injury on August 18, 2016. Claimant was off work from August 18, 2016, to October 14, 2016, and used sick and personal leave to cover the gap in pay. Although her claim for benefits was initially denied, by early 2017, following her second claim for benefits, the parties agreed to enter a stipulated order awarding temporary total disability benefits from August 18, 2016 to October 14, 2016. Based on the pre-injury average weekly wage of $968.04, payment of temporary total disability benefits for this timeframe would total $5,347.27 ($645.36 per week for the time of disability).

In 2017, claimant filed a claim for payment of the stipulated award in addition to a twenty percent penalty for failure to make timely payment. The parties acknowledged that while claimant was not working, the employer compensated her by allowing her to use sick leave and personal leave and through payment of short-term disability benefits. She disputed, however, that the employer reinstated the expended sick and personal leave time. In response, employer defended that the claimant was paid full wages in the form of sick leave and short-term disability benefits; therefore, there was no requirement to pay temporary total disability benefits. Employer asserted that the claimant was paid $5,272.68 in payments termed "regular pay" and $4,671.68 in "disability pay." Employer sought a credit for the voluntary payments.

At the subsequent hearing before the deputy commissioner, employer's human resources analyst testified that claimant used sick leave during the first forty hours of her waiting period under short-term disability² and then used personal leave when she fell to eighty percentdisability. The analyst explained that when the claim was approved in 2017, she reinstated the sick and personal leave that claimant was charged during the waiting period and when claimant went into eighty percent. She explained, however, that "because sick leave and personal leave [are] only used during the current year and then lost at the end of the year," claimant could not use any of the sick or personal leave reinstated to her because it had effectively expired.

The deputy commissioner issued an opinion ordering employer to make payment of compensation in accordance with the stipulated order plus twenty percent penalties for failure to make timely payment. Furthermore, the deputy commissioner held that there was nothing in the stipulated order to indicate that employer sought or was entitled to a credit for payment of sick or other leave, so that request was denied. Employer requested review of that order.

After remanding the matter back to the deputy commissioner for valuation questions, the Commission affirmed the award to claimant of the sick and personal leave, which was valued at $778.03. However, it reversed the deputy commissioner's denial of a credit to employer and credited employer with $5,347.27 based upon the stipulated dollar value of the short-term disability benefits paid during the agreed period of work-related disability from August 18, 2016 through October 14, 2016.

II. ANALYSIS

Employer argues that the Commission erred in finding that employer did not reinstate claimant's leave and therefore awarding claimant $778.03. We disagree.

It is the burden of employer, the appealing party in this case, to demonstrate on appeal that the Commission's ruling constituted reversible error. Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012). "The Commission's factual findings bind [this Court] as long as credible evidence supports them," Riverside Reg'l Jail Auth. v. Dugger, 68 Va. App. 32, 37 (2017) (quoting Van Buren v. Augusta Cty., 66 Va. App. 441, 446 (2016)), such that "the existence of 'contrary evidence . . . in the record is of no consequence,'" City of Waynesboro v. Griffin, 51 Va. App. 308, 312 (2008) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229 (1991)). By statute, we treat the Commission's factfinding as "conclusive and binding" if it rests on a sufficient threshold of evidence. Berglund Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 749-50 (2004) (quoting Code § 65.2-706(A)). "This appellate deference is not a mere legal custom, subject to a flexible application, but a statutory command." Id. (citation omitted). This command binds us so long as a "rational mind upon consideration of all the circumstances" could come to the conclusion the Commission adopted. K&G Abatement Co. v. Keil, 38 Va. App. 744, 756 (2002) (quoting Baggett Transp. Co. v. Dillon, 219 Va. 633, 637 (1978)).

The stipulated award in this case stated that claimant suffered a compensable injury and was entitled to an award from employer in the amount of $645.36 per week from August 18, 2016 through October 14, 2016, the time in which she was unable to work. Employer was also ordered to continue to provide medical treatment for claimant pursuant to Code § 65.2-603. However, although employer argues that claimant was paid full wages for the August 18, 2016 through October 14, 2016 time period, the parties agree that none of the pay claimant receivedwas from hours worked—it was all funded by the claimant's sick leave, personal leave, or short-term disability benefits.

It has long been established that where the claimant is entitled to payment of compensation benefits under the Virginia Workers' Compensation Act, the employer may not charge the lost time against the claimant's sick or vacation time. See Cain v. Perdue Farms, Inc., 71 O.I.C. 312 (1992); Berg v. City of Richmond, 47 O.I.C. 33 (1965). Furthermore, when compensation benefits are owed, the employer is not entitled to take a credit for such benefits against the claimant's accumulated leave. See Cain, 71 O.I.C. at 313; Berg, 47 O.I.C. at 34.

Because employer was ordered to pay claimant temporary total disability for the agreed disability period, any leave charged to claimant during that time should have been reinstated to her. However, it was not.

This Court addressed leave reinstatement in Augusta County School Board v. Humphreys, 53 Va. App. 355 (2009). In that case, in consideration of a statute of limitations question, this Court affirmed the Commission's interpretation of Code § 65.2-520³ that "claimant is not required to buy back her leave balances, and the employer is entitled to a credit for wages it paid for sick leave, where such leave has been reinstated." Id. at 363 (internal quotation marks omitted). "In other words, the claimant gets her leave restored, and her workers compensation benefits[,] while the employer is granted credit against owed workers' compensation indemnity benefits for wages paid through the now-restored leave." Id. We noted in Humphreys that

[w]hile the Virginia appellate courts have not addressed Code § 65.2-520 in the context here presented in a published decision,the commission, in applying this statute, has consistently held, at least since 1988,

that the payment of wages to the employee based upon sick or annual leave may be credited to the employer under the

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