                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Annunziata
              Argued at Alexandria, Virginia
UNPUBLISHED




              ROSARIO RUIZ DOMINGUEZ
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 0671-16-4                                           JUDGE ROSSIE D. ALSTON, JR
                                                                                                MARCH 28, 2017
              HARDEE’S AND TRAVELERS INDEMNITY
               COMPANY OF AMERICA


                                    FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                                           Diane C.H. McNamara (The Law Office of Diane C.H.
                                           McNamara, on brief), for appellant.

                                           Scott E. Snyder (Law Offices of Mark J. Beachy, on brief), for
                                           appellees.


                            Rosario Ruiz Dominguez (appellant) appeals the decision of the Workers’ Compensation

              Commission (Commission) finding that appellant is not entitled to cost of living adjustments

              (COLA) under Code § 65.2-709. Appellant argues that the Commission erred as a matter of law

              in denying her request for COLA benefits. We affirm the decision of the Commission.

                                                                              BACKGROUND

                            On August 26, 2013, appellant suffered an industrial accident while working at a

              Hardee’s restaurant, sustaining compensable injuries to her head and neck. She also suffered a

              concussion. On March 14, 2014, a stipulated order was entered stating that appellant’s average

              weekly wage at the time of the injury was $221.65, with a corresponding compensation rate of

              $221.65. It also included the periods of time that appellant was entitled to disability benefits,

              specifically: temporary total disability beginning September 11, 2013, through October 14,

                                                                          
                            
                              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2013, inclusive, at a rate of $221.65, based on pre-injury average weekly wage of $221.65;

temporary partial disability beginning October 15, 2013, through December 8, 2013, inclusive, at

a rate of $36.10 based on a post-injury average weekly wage of $167.50, as compared to a

pre-injury average weekly wage of $221.65; and temporary total disability beginning December

9, 2013, through the present and continuing, at a rate of $221.65, based on a pre-injury average

weekly wage of $221.65. Medical benefits were also awarded for as long as necessary.

       On November 13, 2014, appellant filed an application for COLA benefits and requested a

hearing. The Commission rejected appellant’s claim on December 11, 2014, because she did not

include the social security benefit information form with the application. On that same date,

appellant filed a new application for COLA benefits with the necessary social security benefit

information. The Commission issued a “Notification of COLA Entitlement” on January 15,

2015, and on this document there was a note stating that “[appellant] is not entitled to COLA

because she is receiving [one-hundred percent] of her average weekly wage. She is receiving

more than [eighty percent].”

       A hearing took place on June 30, 2015, before a deputy commissioner. In an opinion

issued on October 5, 2015, the deputy commissioner cited Davis v. Alternative Community and

American Zurich Insurance Co., JCN 2179951, 2013 VA Wrk. Comp. LEXIS 1658 (VA Wrk.

Comp. May 7, 2013), when determining that appellant’s temporary total disability rate of

$221.65 exceeded eighty percent of her established pre-injury average weekly wage of $221.65.

Thus, pursuant to Code § 65.2-709, appellant was not entitled to COLA benefits. Accordingly,

the deputy commissioner denied appellant’s claim and dismissed the case.

       Appellant filed a request for review on October 19, 2015. The Commission reviewed the

deputy commissioner’s opinion and issued its own opinion with a majority of the Commission

affirming the deputy commissioner’s decision. This appeal followed.

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                                             ANALYSIS

        Appellant argues that the Commission erred as a matter of law by denying her request for

COLA benefits. We disagree.

        Statutory interpretation is a pure question of law, which is reviewed de novo. Prince

William Cnty. Sch. Bd. v. Rahim, 58 Va. App. 493, 499-500, 711 S.E.2d 241, 244 (2011). This

Court is ‘“required to construe the law as it is written’ and ‘an erroneous construction by [the

Commission] cannot be permitted to override the clear mandates of [the] statute.’” Danville

Radiologists, Inc. v. Perkins, 22 Va. App. 454, 458, 470 S.E.2d 602, 604 (1996) (quoting

Pavlicek v. Jerabek, Inc., 21 Va. App. 50, 58, 461 S.E.2d 424, 428 (1995)). “When the language

of a statute is unambiguous, we are bound by the plain meaning of that language.” Conyers v.

Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing

Campbell v. Harmon, 271 Va. 590, 597-98, 628 S.E.2d 308, 311-12 (2006); Virginia Polytechnic

Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)).

“[W]e must give effect to the legislature’s intention as expressed by the language used unless a

literal interpretation of the language would result in a manifest absurdity.” Id. (citing Boynton v.

Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006); Williams v. Commonwealth, 265 Va.

268, 271, 576 S.E.2d 468, 470 (2003); Woods v. Mendez, 265 Va. 68, 74-75, 574 S.E.2d 263,

266 (2003)).

        At issue in the instant matter, is the entitlement to cost of living supplements, which are

governed pursuant to the Code § 65.2-709. The plain language of the statute identifies the

threshold level of entitlement as a cost of living supplement. Code § 65.2-709(A) sets the

framework for determining whether a claimant is eligible for a cost of living supplement. The

statute states, in part:

                 In the event that the combined disability benefit entitlement of a
                 claimant or his dependents under this title and the Federal Old-Age
                                                    - 3 - 
               Survivors and Disability Insurance Act is less than eighty percent
               of the average monthly earnings of the claimant before disability or
               death, cost of living supplement shall be payable, in addition to the
               other benefits payable under this title, in accordance with the
               provision of this section.

This means that when determining whether or not appellant is eligible for COLA benefits it must

be determined whether or not a claimant’s combined disability benefit entitlement is over eighty

percent of her average monthly earnings.

       In this case, the parties stipulated to several facts in an order from March 2014. These

facts included that appellant’s average pre-injury weekly wage was $221.65, and the

compensation rate she received was $221.65. This is one hundred percent of appellant’s average

pre-injury weekly wage. Thus, looking to the plain meaning of Code § 65.2-709(A), appellant is

ineligible for any COLA benefits.

       This finding is consistent with governing case law. In Atchison v. May Department

Stores Company, 225 Va. 525, 532, 304 S.E.2d 640, 644 (1983), the Supreme Court of Virginia

held that the Commission was correct in concluding that the claimant therein was not entitled to

prior or future supplements so long as his social security payment and basic award claimant

received equaled eighty percent of the average monthly wage. Similarly, in the recent

Commission opinion in Davis, 2013 VA. Wrk. Comp. LEXIS 1658, the Commission found that

the plain language of Code § 65.2-709 does not entitle a claimant to receive a cost of living

supplement if the claimant’s combined entitlement under the Virginia Workers’ Compensation

Act and the Social Security Administration is eighty percent or more of their pre-injury average

weekly wage. The Commission found that it could not interpret the statute to mean that

claimants who were not receiving social security disability benefits were automatically entitled

to COLA benefits even if their compensation rate was over eighty percent of their pre-injury

average weekly wage. Id. at *4. Thus, the claimant in that case received a minimum

                                                   - 4 - 
compensation rate of $172.74, which was more than eighty percent of her pre-injury average

weekly wage of $197.47, and as a result, she was not entitled to COLA benefits. Id. at *5.

       By the same token, appellant in this case received an award of over eighty percent of her

monthly average pay and is not entitled to future supplements.

       Appellant relies on cases Clinchfield Coal Company v. Anderson 222 Va. 62, 67, 278

S.E.2d 817, 820 (1981), and Nakpodia v. Marriott Corporation and Liberty Mutual Insurance

Company, 60 O.I.C. 322 (1982), to support her contention that she is entitled to a cost of living

supplement. However, both cases stand for the proposition that even though a full cost of living

supplement causes a claimant’s total compensation benefits to exceed the weekly average, such a

supplement can still be awarded if the total amount of compensation before that is less than

eighty percent of the average monthly wage. Thus, these principles do not apply unless

appellant’s total amount of compensation before receiving cost of living supplements equals less

than eighty percent.

       Appellant in this case is not receiving any money from the Social Security

Administration, but her minimum compensation rate of $221.65 is one hundred percent of her

pre-injury average weekly wage. The plain language of Code § 65.2-709 does not entitle a

claimant to receive a cost of living supplement if the claimant’s combined entitlement under the

Virginia Workers’ Compensation Act and the Social Security Administration is eighty percent or

more of their pre-injury average weekly wage. Accordingly, we affirm the Commission’s

decision.

                                                                                         Affirmed.




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