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COURT OF APPEALS OF VIRGINIA Present: Judges Baker, Annunziata and Senior Judge Hodges Argued at Norfolk, Virginia REGINA BOSSONG BUTLER v. Record No. 1919-95-1

CITY OF VIRGINIA BEACH

OPINION BY JUDGE ROSEMARIE ANNUNZIATA JUNE 18, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Ralph E. Lawrence for appellant. Charles B. Miller, Assistant City Attorney (Office of the City Attorney, on brief), for appellee.

Claimant, Regina Bossong Butler, appeals the Workers' Compensation Commission's refusal to vacate its award for permanent partial disability benefits and to enter an award for temporary total disability benefits. The permanent partial award

was made pursuant to a memorandum of agreement prepared at claimant's request and signed by her, which terminated an earlier temporary total disability benefits award in her favor. no error, we affirm. The relevant facts are as follows. On February 2, 1988, Finding

claimant suffered a compensable injury by accident while working for employer, City of Virginia Beach. As a result, claimant A June 11,

received benefits for temporary total disability.

1991 report from Dr. Paul J. Abbott, Jr. states that claimant had reached maximum medical improvement from her accident. Thereafter, on June 20, 1991, claimant, through counsel, asserted

her right to compensation for permanent partial disability and requested employer to prepare an agreed statement of fact and supplemental memorandum of agreement. Employer prepared and

claimant executed the agreed statement of fact and supplemental memorandum of agreement reflecting claimant's request for permanent partial compensation. The agreed statement of fact

also provided that claimant's outstanding award for temporary total disability was terminated, based on claimant having reached maximum medical improvement on June 20, 1991. Employer submitted the documents to the commission and, on September 9, 1991, the commission, acting in accordance with the agreed statement of fact, terminated temporary total disability payments and entered an award for permanent partial disability payments from June 20, 1991 until November 1, 1993. On November

2, 1993, claimant resumed temporary total disability benefits on a continuing basis. On November 29, 1994, claimant filed an application for hearing asking that the commission's September 9, 1991 award for permanent partial disability be vacated and claiming entitlement to temporary total disability benefits for the period June 20, 1991 through November 2, 1993. The deputy commissioner refused The full commission

to vacate the September 9, 1991 award.

affirmed, finding no evidence of fraud, misrepresentation, or mutual mistake. The commission further stated that it "was not

required to second guess claimant's counsel to determine whether

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the claimant was in fact no longer eligible for temporary total disability benefits." On appeal, claimant argues that this Court should vacate the September 1991 award because: (1) benefits for permanent partial loss can be paid only when benefits for temporary total disability have ceased; (2) entry of the award was not in claimant's best interest; (3) no evidence proved that she intentionally and knowingly waived her right to temporary total disability benefits; and (4) the agreed statement of fact which prompted the award was incomplete. 1 I. The commission's approval of a memorandum of agreement is binding, and "an award of compensation entered upon such agreement is as enforceable as an award entered in a contested proceeding." Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116,

121, 348 S.E.2d 416, 419 (1986); see also Code

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