                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


ARA HEALTH SERVICES AND
 OLD REPUBLIC INSURANCE COMPANY
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1660-99-1                  JUDGE DONALD W. LEMONS
                                                MARCH 28, 2000
EDITH FLAX


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             S. Vernon Priddy III (Sands, Anderson,
             Marks & Miller, on brief), for appellants.

             Matthew H. Kraft (Stephen A. Strickler;
             Inman & Strickler, P.L.C., on brief), for
             appellee.


     ARA Health Services and Old Republic Insurance Company

("employer") appeal the decision of the Virginia Workers'

Compensation Commission.     On appeal, the employer contends:   (1)

the commission erred by holding that it has the authority and

jurisdiction to award retroactive cost-of-living benefits more

than ninety days before the date of the application seeking such

benefits; (2) that the commission erred when it held that it has

the authority and jurisdiction to award retroactive

     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
cost-of-living benefits for up to 500 weeks of benefits; (3)

that the commission erred when it held that Edith Flax's claim

for cost-of-living benefits was timely under the applicable

statute of limitations; and (4) that the commission erred when

it failed to bar Flax's claim for cost-of-living benefits under

the doctrine of laches.   Finding no error, we affirm the

decision of the commission.

                          I.   BACKGROUND

     On May 22, 1987, the claimant, Edith Flax, tripped and fell

in an unlit stairwell while working for the employer and

suffered a compensable injury to her right knee.    The claim was

accepted and compensation benefits paid for the statutory

period, terminating on January 6, 1997.     During this time, the

total amount of compensation benefits paid Flax was $97,135.31.

Flax did not apply for cost-of-living supplements during the 500

weeks that she received compensation.

     On June 19, 1997, Flax filed her application seeking

permanent partial disability benefits as well as cost-of-living

supplements in the amount of $19,166.26.    Accompanying the claim

was documentation from the Social Security Administration that

Flax had been denied supplemental Social Security income, was

ineligible for Social Security disability and, therefore, had

not received any money from the Administration.

     Deputy Commissioner Phillips heard the matter on October 9,

1997 and issued an opinion dated November 10, 1997 awarding Flax

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cost-of-living supplements and denying permanent partial

disability benefits.      Employer requested a review of the award,

and the full commission remanded the matter to the hearing

docket because Flax had a pending application for Social

Security benefits.    Flax was denied Social Security benefits for

the period for which she sought cost-of-living supplements.        The

parties stipulated that the deputy commissioner supervising the

matter on remand could return it to the review docket for

decision upon the record and written submissions that had

followed the original opinion and request for review.         The full

commission affirmed the award of cost-of-living supplements.

Employer appeals the commission's award.

                    II.   COST-OF-LIVING SUPPLEMENTS

               A.    TIMELINESS OF FLAX'S APPLICATION

     Employer contends that Flax's application for

cost-of-living supplements was not timely made and if no statute

of limitations is applicable, in the alternative, it contends

that the application was still untimely under the doctrine of

laches.   When Flax's accident occurred, Code § 65.1-99.1

governed her entitlement to cost-of-living supplements.        These

supplements are not self-executing, see Jewell Ridge Coal Corp.

v. Wright, 222 Va. 68, 71, 278 S.E.2d 820, 822 (1981), however,

and to receive cost-of-living supplements, the claimant must

file an application pursuant to Code § 65.2-708.       Code

§ 65.2-708 states, "[n]o such review shall be made after

                                  - 3 -
twenty-four months from the last day for which compensation was

paid, pursuant to an award under this title . . . ."      We agree

with the commission that Flax was clearly within this time frame

when she requested cost-of-living supplements.

     Having determined that the applicable statute of

limitations for receiving cost-of-living supplements is found in

Code § 65.2-708 and that Flax brought her claim within the

limitations period, employer's plea of laches must fail and we

do not address the issues of prejudice that it has argued on

appeal.    As has been stated,

               [n]o principle is better established, or
               more uniformly acted on in courts of equity,
               than that in respect to the statute of
               limitations- equity follows the law- that is
               to say, if a legal demand be asserted in
               equity, which at law is barred by statute,
               it is equally barred in a court of equity;
               and if not barred by statute at law, neither
               is it barred in equity. Rowe v. Bentley, 29
               Gratt. 756-759.

Coles v. Ballard, 78 Va. 139, 149 (1883) (emphasis added); see

United States v. Mack, 295 U.S. 480, 489, 55 S. Ct. 813, 818, 79

L.Ed. 1559 (1935) ("Laches within the term of the statute of

limitations is no defense at law.").

          B.    RETROACTIVE AWARD OF COST-OF-LIVING SUPPLEMENTS

     Even if the application was timely made, employer argues

that pursuant to the ninety-day limitation under the

commission's Rule 13(B) (now Rule 1.2(B)) and the decision of

Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 161 S.E. 902


                                   - 4 -
(1932), an award of cost-of-living supplements for any period

before ninety days prior to the filing of a request for such

supplements, especially after the claimant waited until her 500

week period of receiving disability benefits ended, is barred

and, if the ninety-day limitation does not apply, Bristol Door

and its progeny bar an award for cost-of-living adjustments for

any period prior to the filing of a request for such

supplements.   We disagree.

     The time limitations that the employer would apply to bar

the payment of retroactive cost-of-living supplements govern

compensation benefits paid pursuant to the Workers' Compensation

Act, such as temporary total, temporary partial, permanent

partial and permanent total benefits.   Employer's argument

confuses cost-of-living supplements with compensation benefits

payable pursuant to the Act and contends that Flax's

cost-of-living benefits should, therefore, be subject to the

same limitations applicable to compensation benefits.

     This Court in Commonwealth Dept. of Highways and Transp. v.

Williams, 1 Va. App. 349, 338 S.E.2d 660 (1986), and the

commission, in Rule 1.2(B), have specifically held that the

limitation precluding the award of benefits for more than ninety

days prior to the filing of a claim under Code § 65.2-708 is not

applicable to cost-of-living supplements.   We recognized that

the commission "has consistently ruled that cost-of-living

benefits are not compensation within the meaning of Rule 13(B)."

                              - 5 -
Williams, 1 Va. App. at 356, 338 S.E.2d at 665.    The purpose of

cost-of-living supplements is "to ensure, as much as possible,

that the value of benefits paid under the Act does not diminish

due to inflation."     Id. at 354, 338 S.E.2d at 664.   We noted

that "Bristol Door was decided long before the Act provided for

cost-of-living benefits" and that the concern there was that "if

claimants could receive retroactive compensation awards

employers might not be given the opportunity to furnish medical

or rehabilitative aid at the time a changed condition came

about."    Id. at 356-57, 338 S.E.2d at 665.   "Such concerns,

however, are not relevant to cost-of-living entitlements because

the determination whether a claimant is entitled to a

cost-of-living supplement is not based on any actions which the

employer may or may not have taken."     Id. at 357, 338 S.E.2d at

665.

       Furthermore, within the context of change in condition

applications, the commission, since Williams, has incorporated

Rule 13(B) into Rule 1.2, and in section (B) of that Rule has

specifically stated:    "Additional compensation may not be

awarded more than 90 days before the filing of the claim with

the Commission.    Requests for cost of living supplements are not

subject to this limitation."     Rule 1.2(B), Rules of the Virginia

Workers' Compensation Commission (emphasis added).      Accordingly,

retroactive cost-of-living supplements are not limited by Rule



                                 - 6 -
13(B) or the Supreme Court of Virginia's holding in Bristol

Door.

                        III.   CONCLUSION

     For the reasons stated above, we affirm the commission's

award.

                                                       Affirmed.




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