Waller v. Blue Ridge Nursing Home, VWC File No. 222-93-62 (October 7, 2009)

Claimant was injured on March 17, 2005, and initially awarded temporary disability benefits from March 17 through October 16, 2005. On April 6, 2006, Claimant wrote a letter to the commission stating that she returned to work on October 17, 2005, and was doing well until October 26, 2005, when she felt her back pop that morning and as a result was taken out of work. She remained out of work through January 30, 2005. From October 26, 2005, through January 30, 2005, employer voluntarily paid claimant’s medical bills. In the Commission’s December 20, 2006 opinion, the Employer stipulated to Claimant’s disability from January 30, 2006, through February 16, 2006. The Deputy Commissioner stated that: “The carrier has paid these benefits, and is entitled to a credit for the same.” The claimant was awarded temporary total disability benefits from January 30, 2006 through October 31, 2006.

On October 31, 2008, the claimant filed a letter claim for unpaid temporary total disability benefits pursuant to the December 20, 2006, award, as well as a 20-percent penalty on those unpaid benefits. By Claimant’s calculations, the employer underpaid her more than $3,000. At the March 11, 2009 hearing, the employer admitted that it applied a credit to benefits due for the period of October 30, 2005, through February 16, 2006.

The Deputy Commissioner found that the employer was entitled to only the credit awarded in the December 20, 2006 opinion and that any other credit prior to that period was barred by res judicata. The deputy commissioner also allowed the 20-percent penalty.

The Commission affirmed the deputy commissioner’s decision. Employer argued that res judicata did not bar a hearing on whether they were entitled to a credit because the award only applied to benefits from January 30, 2006, and the credit would be for the period of October 26, 2005, through January 29, 2006. They argued that this period was not included as part of the order and therefore there was no res judicata issue. The Commission disagreed and stated that at the time of the prior hearing and issuance of the December 20, 2006, Opinion, the employer was aware of its voluntary payments for the time period for which it now sought credit and as such, the amount of the voluntary payments could have been addressed at the time of the Hearing or through an appeal of the Opinion that allowed the credit.

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