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COURT OF APPEALS OF VIRGINIA
Present:    Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
OPINION BY
v.    Record No.  0899-01-1                                          JUDGE RICHARD S. BRAY
                                                                     DECEMBER  4,  2001
MARY GERTRUDE HOLMES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher R. Hedrick  (Mason, Cowardin &
Mason, P.C., on brief), for appellant.
Richard B. Donaldson, Jr.  (Jones, Blechman,
Woltz & Kelly, P.C., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company  (employer)
appeals the determination of the Workers' Compensation
Commission  (commission) that employer, seeking to recoup a
credit accrued from payments to claimant in accordance with the
federal Longshore and Harbor Workers' Compensation Act  (LHWCA),
wrongfully suspended compensation benefits subsequently awarded
claimant pursuant to the Workers' Compensation Act  (Act).
Additionally, employer appeals the penalty assessed by the
commission on such suspended compensation.    Finding no error, we
affirm the decision.
I.
The substantive facts and procedural history are
uncontroverted.    On August  13,  1993 claimant sustained a




work-related injury, which entitled her to benefits pursuant to
both the LHWCA and the Act.    Initially, she pursued and received
a LHWCA disability award but, "to protect her right to all
benefits  .  .  . under the  .  .  . Act," also lodged a related claim
with the commission, then advising the commission, "[n]o hearing
is requested at this time."1
After claimant had received LHWCA benefits totaling
$68,942.78, employer terminated payments on August  30,  1998.
Thereafter, by letter to the commission dated September  21,
1998, claimant "request[ed] that this matter be moved to the
hearing docket on an expedited basis to request  .  .  . benefits
[under the Act] beginning August  31,  1998, and continuing."    The
parties subsequently agreed to a schedule of compensation to
claimant for various periods of disability, including a lump sum
of  $21,831.22 for "a  50% permanent partial disability to the
left leg" and "[t]emporary partial disability  .  .  . of  $104.87
per week from  1/19/99 to the present and continuing," and the
commission so ordered.
On May  8,  2000, claimant notified the commission that
employer had unilaterally ceased payment of the  $104.87 weekly
benefit on July  4,  1999, and, pursuant to Code  §  65.2-254,
1 In response, the commission acknowledged the claim and
notified both employer and claimant, without objection, "[n]o
further action will be taken  .  .  . until requested by the
parties."
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sought assessment of a twenty percent penalty on "all payments
in arrears more than two weeks."    The commission immediately
granted claimant's motion.    However, within several days,
employer objected, advising the commission that, after realizing
"that payments had also been made under the  [LHWCA]," employer
was "now taking a dollar for dollar credit" against the award.
The dispute was promptly designated "for determination on the
record," and each party was directed to submit written
"statements of position" and related documentary proofs for
further consideration by the commission.
Guided by Moore v. Va. Int'l Terminals, Inc.,  254 Va.  46,
486 S.E.2d  528  (1997)  (Moore II), and an unpublished opinion of
this Court, Dodson v. Newport News Shipbuilding & Dry Dock Co.,
Record No.  0278-99-1  (Va. Ct. App., Aug.  10,  1999), the deputy
commissioner decided that, while employer was entitled to a
credit for LHWCA benefits previously paid to claimant, "the
method by which overpayments are to be recognized" was governed
by the "requirements of  [Code]  §  65.2-520."    Thus, employer's
recoupment was limited "to  .  .  . a reduction of one-fourth of
the amount of weekly payments" due claimant "through the present
and continuing," not a suspension of benefits.    Additionally,
pursuant to Code  §  65.2-524, the deputy assessed a statutory
penalty against employer upon those payments wrongfully withheld
from claimant's award under the Act.    The commission affirmed
the decision following appeal by employer.
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Employer now appeals to this Court, disputing the
application of Code  §  65.2-520 to limit recoupment of payments
made pursuant the LHWCA, and the related penalty.
II.
Code  §  65.2-520 provides, in pertinent part, that
[a]ny payments made by the employer to the
injured employee during the period of his
disability  .  .  ., which by the terms of this
title were not due and payable when made,
may, subject to the approval of the
Commission, be deducted from the amount to
be paid as compensation provided that, in
the case of disability, such deductions
shall be made by reducing the amount of the
weekly payment in an amount not to exceed
one-fourth of the amount of the weekly
payment for as long as is necessary for the
employer to recover his voluntary payment.
Employer correctly concedes "that numerous appellate decisions
have considered payments under the  [LHWCA] in the context of
'voluntary payments' as defined by  §  65.2-520."    See, e.g., Va.
Int'l Terminals, Inc. v. Moore,  22 Va. App.  396,  405,  470 S.E.2d
574,  578  (1996)  (Moore I)  ("[D]isability payments employer paid
claimant under the LHWCA were 'voluntary' because  .  .  . they
were not 'due and payable' under 'the terms of' the Virginia
Act."), aff'd,  254 Va.  46,  486 S.E.2d  528  (1997).    However,
employer posits that application of the statute to the instant
facts would confer benefits upon claimant violative of Code
§  65.2-518 and inconsistent with the rationale of Moore II and,
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further, encourage delay in the prosecution of like claims under
the Act.2
Code  §  65.2-518 limits "total compensation under this
title" to "500 weeks" or "the average weekly wage of the
Commonwealth  .  .  . for the applicable year  [multiplied] by  500."
Moore II instructs that "[w]here, as here, a worker is covered
by both the  [LHWCA] and the state  [Act],  .  .  . the injured
worker may proceed under either or both statutes" but "is
entitled to only a single recovery for his injuries."    Moore II,
254 Va. at  49,  486 S.E.2d at  529  (citations omitted).    Thus, the
Court in Moore II construed Code  §  65.2-520 to assure an
employer a "dollar for dollar" credit for LHWCA compensation
benefits paid an injured employee against like benefits due
under the Act, thereby avoiding an impermissible "double
recovery."    Id. at  50,  486 S.E.2d at  530.    Employer, therefore,
reasons the commission may not restrict recovery of LHWCA
credits under Code  §  65.2-520 with the result that claimant
receives both a "total recovery" violative of Code  §  65.2-518
and a "double recovery" contrary to Moore II.    Employer's
argument misconstrues both Code  §  65.2-518 and Moore II.
2 Employer's uncontroverted calculations reflect that
recoupment at the statutory rate,  $26.21 per week  (25% of
$104.87), would permit "recapture" of only  $42,944.04 from
claimant over the benefit period under the Act, resulting in a
"windfall" to claimant of  $25,998.74 and a "pennies-for-dollar"
credit recovery for employer.
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The benefit limitations prescribed by Code  §  65.2-518 are
restricted to "total compensation payable under" the Act.
Therefore, recoupment of credits resulting from voluntary
payments by an employer to an injured employee of monies, "not
due and payable  [under the Act] when made," is a circumstance
clearly not contemplated by Code  §  65.2-518 but, rather,
specifically embraced by Code  §  65.2-520.    Code  §  65.2-520
(emphasis added).    Code  §  65.2-520 facilitates an employer's
right to collect LHWCA credits by "deductions" from compensation
due an employee under the Act but expressly restricts such
offsets to one-fourth of the "weekly payment."    Code  §  65.2-520
creates no alternative or exception to the collection mechanism
to redress circumstances that may result in a diminished
recovery by an employer.    "If a statute is clear and
unambiguous, a court will give the statute its plain meaning."
Loudoun Co. Dep't of Soc. Servs. v. Etzold,  245 Va.  80,  84,  425
S.E.2d  800,  802  (1993)  (citations omitted).
Similarly, a proper reading of Moore II offers no support
for employer's argument.    Moore II simply affirms the
well established principle disfavoring double recovery by an
employee of benefits arising from the same industrial accident
and construes Code  §  65.2-520 to allow a "dollar for dollar"
recoupment by an employer of overpayment credits.    Id. at  49-50,
486 S.E.2d at  530.    Moore II neither disapproves the method of
recovery specified by Code  §  65.2-520 nor suggests exceptions to
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preclude shortfalls to employer or windfalls to employee.    To
the contrary, the court defers to the "clear intent of the
General Assembly" in construing Code  §  65.2-520, thereby
countenancing the explicit statutory limitations upon recovery
of overpayment credits.
Lastly, employer maintains that the promise of undeserved
benefits resulting from statutory limitations upon an employer's
recoupment of overpayments would encourage claimants receiving
benefits pursuant to the LHWCA to delay a proceeding under the
Act and urges this Court to fashion a remedy to this perceived
deficiency in the statutory scheme.    However, such public policy
determinations are within the province of the legislature, not
the judiciary.    Thus, absent evidence that the instant claim was
time-barred by the Act or attendant Rules of the Commission, we
decline employer's invitation to impose a judicial limitation.
III.
Claimant's brief includes a conclusionary prayer for
"interest due under  [Code]  §  65.2-707  [and] attorney's fees and
costs due under  [Code  §]  65.2-713."    A review of the record
discloses claimant requested "an award of attorney's fees" in
correspondence to the commission dated May  25,  2000.    In
subsequently deciding the instant cause, the deputy expressly
did "not find" claimant entitled to "any attorney's fees under
[Code]  §  65.2-513  [sic]," a decision claimant did not submit for
review by the commission.    Accordingly, the commission did not
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address the issue and we decline to entertain it on appeal.
With respect to an award of fees and costs incident to the
proceedings before this Court, we find "reasonable grounds"
supported employer's defense and deny claimant such relief.
Code  §  65.2-713(A).
Accordingly, the commission properly limited employer's
right of recoupment to the method prescribed by Code  §  65.2-520
and correctly assessed a penalty on those benefit payments
withheld contrary to statute.    We, therefore, affirm the
decision and remand the proceedings to the commission solely for
entry of an appropriate order directing the immediate payment of
those benefits improperly withheld by employer, together with
the attendant penalty and interest, and the restoration of
benefits to claimant, subject to the provisions of Code
§  65.2-520.
Affirmed and remanded.
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