E.I. du Pont de Nemours and Co. v. Eggleston

PRESENT: All the Justices
E.I. DU PONT DE NEMOURS AND COMPANY
v. 	Record No. 011739 	OPINION BY JUSTICE ELIZABETH B. LACY
June 7, 2002
BRENDA G. EGGLESTON
FROM THE COURT OF APPEALS OF VIRGINIA
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
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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.
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Eggleston, Record No. 2648-00-2, 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
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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
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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
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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.
1 Code § 65.2-518 provides that compensation "under this
title shall in no case" exceed 500 weeks. 	As the parties agree,
"in no case" refers to a 500-week limit on compensation per
injury or occupational disease, not per claimant, per award, or
per type of award.
Applying the 500-week limitation period to each injury has
its roots in the history of the Act. 	The limitations period
originally was found in the sections dealing with total and
partial disability, originally sections 30 and 31 in Chapter 400
of Acts 1918, respectively. 	The relevant language of those
sections provided:
Sec. 30. 	Where the incapacity for work
resulting from the injury is total, the employer
shall pay . . . to the injured employee during
such total incapacity a weekly compensation . . .
and in no case shall the period covered by such
compensation be greater than five hundred weeks
. . . .
Sec. 31. 	Except as otherwise provided in
the next section hereafter, where the incapacity
for work resulting from the injury is partial,
the employer shall pay . . . to the injured
employee during such incapacity a weekly
compensation . . . and in no case shall the
period covered by such compensation be greater
than three hundred weeks from the date of the
injury. 	In case the partial incapacity begins
after a period of total incapacity, the latter
period shall be deducted from the maximum period
herein allowed for partial incapacity .
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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 condition, constituting in effect three awards. 	Nor
did Du Pont seek to have the award attributed to a new "combined
injury" distinct from the three separate injuries in order to
insure compliance with Code § 65.2-506.
Furthermore, prior to this appeal, Du Pont did not argue
that Eggleston's request for temporary total incapacity was
A plain reading of these two sections shows that the
limitations period was applied to the injury. 	This language
remained virtually unchanged until 1990, when the General
Assembly eliminated the restriction regarding payment of partial
disability for a period measured "from the date of the injury."
Then, in 1997, the General Assembly deleted the limitation
period from the partial and total temporary disability sections,
Code §§ 65.2-500 and -502, and placed the 500-week limitation
period in Code § 65.2-518. 	Nothing in the legislative history
or case law since 1997 indicates that moving the 500-week
limitation period to Code § 65.2-518 constituted a substantive
change which would require applying the limitations period to
something other than the injury.
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dependent on all three injuries and that, without any one of
them, her incapacity claim would fail. 	The record shows that
when Du Pont initiated the instant litigation in 1999, its
application for change in condition asserted that one of the
claimant's injuries, the gamekeepers' thumb, had resolved itself
and asked the Commission to "reduce the amount of temporary
total disability benefits being paid to the claimant." 	Du Pont
did not ask that the 1994 award be terminated because one of the
three injuries upon which the award was based no longer existed,
thereby implicitly recognizing that the condition of temporary
total incapacity did not necessarily require the existence of
all three injuries.
We agree that, fairly read, the language of the deputy
commissioner in his 1994 opinion implies, although it does not
state, that he found the claimant's incapacity resulted from the
three injuries. 	We also agree that the language gives rise to
an inference that some combination of the injuries supported the
award for temporary total incapacity. 	However, neither of these
inferences provides sufficient guidance to resolve the question
of whether the 1994 award should have been simultaneously
credited against each of Eggleston's injuries for purposes of
the 500-week compensation limitation. 	Thus, we turn to the
applicable case law and the Commission's actions in handling the
1994 award.
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The workers' compensation statutes do not address the
proper treatment of a single award that is based on a
combination of injuries. 	However, workers' compensation case
law developed by the Court of Appeals provides some guidance.
The Grief Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546,
553, 471 S.E.2d 803, 807 (1996), involved two injuries which
"together caused total disability." 	In that case, the
Commission had determined that the claimant's temporary total
disability was " 'due partially to her right hand condition and
partially to the left. 	It cannot be determined which condition
is predominately disabling.' " 	Id. at 550, 471 S.E.2d at 805-
06. 	The right hand condition had predated the left hand
condition and, based on that condition, the claimant was
receiving temporary total disability benefits at the time the
left hand condition arose. 	Id. 	The Court of Appeals concluded
that because the condition of the left hand "contributes to" the
total incapacity, that condition "may properly be considered the
basis for a total incapacity award." 	Id. at 553, 471 S.E.2d at
807. 	The Court of Appeals went on to instruct that, pursuant to
Code § 65.2-5062, the total incapacity award should be paid for
2 Code § 65.2-506, in its entirety, reads:
Compensation after second injury in same employment. –
If an employee receives an injury for which
compensation is payable while he is still receiving or
entitled to compensation for a previous injury in the
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the left hand first and, when that compensation was exhausted or
the condition resolved itself, the temporary total incapacity
award the claimant had been receiving for the right hand should
be resumed, "if justified." 	Id.
The rule of the Grief case is that where more than one
injury contributes to the incapacitating condition, a component
injury may be the basis for the temporary total incapacity
award. 	When that injury resolves itself or the compensation
limitation of Code § 65.2-518 is reached, the claimant can
continue to receive temporary total incapacity benefits based on
the other component injury only if the evidence still supports a
finding that the claimant is totally incapacitated based on the
other component injury.
The procedure prescribed by the Court of Appeals in the
Grief case is precisely the process employed by the Commission
same employment, he shall not at the same time be
entitled to compensation for both injuries, but if he
is, at the time of the second injury, receiving
compensation under the provisions of § 65.2-503,
payments of compensation thereunder shall be suspended
during the period compensation is paid on account of
the second injury, and after the termination of
payments of compensation for the second injury,
payments on account of the first injury shall be
resumed and continued until the entire amount
originally awarded has been paid. 	However, if, at the
time of the second injury, he is receiving
compensation under the provisions of § 65.2-502, then
no compensation shall be payable on account of the
first injury during the period he receives
compensation for the second injury.
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in this case. 	The Commission treated the deputy commissioner's
1994 award as an award based on the condition resulting from
three separate injuries. 	The gamekeepers' thumb injury
contributed to the condition causing the total loss of earning
capacity, that is the temporary total incapacity, and as such
could be considered as the basis for the award. 	Accordingly,
the Commission, as in Grief, attributed the award to the
gamekeepers' thumb injury. 	When that injury resolved itself,
following the hearing on Du Pont's application for change in
condition, the deputy commissioner determined that "the employer
has now established that the claimant's disability is due only
to her two remaining conditions."3 Again, as in Grief, because
the continued compensation was "justified," the compensation
award could be based on a component of the disabling condition
and that component, the carpal tunnel injury, would be credited
with the award until that injury resolved itself or the
compensation limit for that injury was reached.
Nothing in this procedure allows the claimant to recover
more than 500 weeks of compensation for any one injury nor is
compensation for each component injury guaranteed. 	Following
resolution of or compensation exhaustion for the initial injury,
3 Although Grief suggests that the claimant bears the burden
to establish continued disability, in this case Du Pont
apparently did not dispute Eggleston's continued disability
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Eggleston carries the burden of showing that a component injury
continues to support a finding of temporary total incapacity.
Accordingly, because the circumstances of this case do not
come within the provisions of the Workers' Compensation Act that
authorize the Commission to credit a single payment as more than
one week compensation for purposes of Code § 65.2-518 and
because the crediting procedure followed by the Commission in
this case did not result in a violation of Code § 65.2-518, we
will affirm the judgment of the Court of Appeals.
Affirmed.
because it did not appeal the 2000 ruling of the deputy
commissioner in this regard.
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