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Ewc Construction v. Payne3/12/1996
ant was only partially disabled. The issue before the commission was whether claimant established a change of condition as of April 15 which entitled him to total incapacity benefits, not whether claimant's condition had improved by some later date.
Finally, but for employer's failure to file a memorandum of agreement as required by Code § 65.2-701, reflecting its payment of total incapacity benefits to claimant beginning April 15, an award based on total incapacity would have been entered in claimant's behalf contemporaneous with his April 15 change in condition. Had such an award been entered, "employer would have been obligated to honor the award" until it established a subsequent change of condition. McGuinn, 5 Va. App. at 270, 362 S.E.2d at 189; see also Messer, 195 Va. at 768, 80 S.E.2d at 537; Martin, 198 Va. at 373, 94 S.E.2d at 204; Reeves, 1 Va. App. at 438-39, 399 S.E.2d at 572. Employer's failure to file a memorandum of agreement violated the statute, and it cannot use its failure to comply with the statute as a means of circumventing the burden it would otherwise face. See McGuinn, 5 Va. App. at 270, 362 S.E.2d at 189-90 ("To hold otherwise would be to allow an employer or its carrier to unilaterally violate the clear requirements of § [65.2-701] and thereby frustrate the purpose behind that statute.").
Employer argues that the result claimant urges and which we reach here will discourage employers from making voluntary payments to settle claims and that the result therefore undermines the purposes of the Act. Indeed, the Act encourages voluntary settlement of compensable claims. See Code § 65.2-701(C); McGuinn, 5 Va. App. at 268, 362 S.E.2d at 188. However, the result reached here was caused not by employer's attempt to settle the claim but, rather, by its failure to record the settlement by filing a memorandum of agreement as required by statute. Employer ignores the "equally strong policy that when agreements as to settlements are reached they . . . be memorialized in a memorandum of agreement filed with the commission." See McGuinn, 5 Va. App. at 268, 362 S.E.2d at 188-89. This policy serves the fundamental purpose of the Act: "to protect employees, not to facilitate a deprivation of an employee's rights by an employer who has not complied with the statutory requirements." McGuinn, 5 Va. App. at 270, 362 S.E.2d at 190 (citation omitted).
Accordingly, the commission's award is affirmed.
Affirmed.
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