BJ's Wholesale Club, Inc. v. Rose M. McCarron, 1700161

Background

Rose McCarron, a bakery manager at BJ’s, was injured on May 2, 2012; Commission awarded lifetime medical benefits and temporary total disability (TTD) at $368.98/week.
While employed at BJ’s she also worked full-time as a custodian at St. Gregory’s (concurrent, dissimilar employment) and received wage increases there after the injury.
McCarron told the insurer she worked at St. Gregory’s but did not provide wage details or report the later pay increases to BJ’s or its insurer.
BJ’s sought termination of TTD when McCarron was released to full duty and later sought recoupment/credit for all benefits paid based on McCarron’s undisclosed earnings from St. Gregory’s.
Deputy commissioner initially ordered full recoupment; the Commission (majority) limited recovery to a credit only for the overpayments caused by McCarron’s failure to report increased earnings, calculated as $363.16.
On appeal BJ’s argued for full recoupment (i.e., all benefits from injury date until full-duty release); the Court of Appeals affirmed the Commission’s limited-credit ruling.

Issues

Issue	McCarron’s Argument	BJ’s Argument	Held
Whether Code § 65.2-712 permits full recoupment of all compensation paid because McCarron worked another job	§65.2-712 does not apply to continuous, dissimilar concurrent employment; only changes must be reported	§65.2-712 allows employer to recoup all benefits paid because McCarron did not report concurrent employment/increased earnings	Held: §65.2-712 permits recovery only of overpayments caused by an unreported change (e.g., increased earnings), not full recoupment from injury date
Whether McCarron’s continued work at St. Gregory’s constituted a ‘‘return to employment’’ requiring reporting	Continued employment was not a change; she need not have reported previously existing dissimilar employment	Employer may use dissimilar concurrent employment to deny or recoup benefits entirely	Held: No — continuous dissimilar concurrent employment is not a ‘‘return to employment’’ under §65.2-712; employer could have investigated wages earlier
Whether failure to report increased earnings allows credit limited to excess amount	Failure to report increased earnings permits recovery only of excess payments attributable to that increase	Employer sought broader remedy (total recoupment)	Held: Credit limited to amount the employee received in excess of what she would have received if increase had been reported
Whether fraud/misrepresentation was alleged or required for full recoupment	No fraud alleged; statute permits recovery for unreported changes without requiring fraud	Employer implied nondisclosure equated to grounds for full recoupment	Held: No fraud found or alleged; statute doesn’t authorize full recoupment absent fraud or a statutory basis beyond overpayment credit

Key Cases Cited

Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73 (Va. Ct. App. 1988) (describing employee’s duty to report return to employment or increased earnings under predecessor statute)
City of Fairfax v. Massey, 11 Va. App. 238 (Va. Ct. App. 1990) (credit limited to amount overpaid when employee had increased earnings from dissimilar concurrent employment)
Collins v. Dept. of Alcoholic Beverage Comm., 21 Va. App. 671 (Va. Ct. App. 1996) (employer may recoup overpayments based on mutual mistake in wage calculation)
Mercy Tidewater Ambulance v. Carpenter, 29 Va. App. 218 (Va. Ct. App. 1999) (explaining "dissimilar employment" rule for calculating average weekly wage)
Frederick Fire and Rescue v. Dodson, 20 Va. App. 440 (Va. Ct. App. 1995) (same; concurrent employment considered only if related or similar)
McKellar v. Northrop Grumman Shipbldg, Inc., 290 Va. 349 (Va. 2015) (Workers’ Compensation Act’s purpose is to compensate workplace injuries)