                   COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued by teleconference


DENNIS K. PENNINGTON
                                               OPINION BY
v.   Record No. 1680-98-4                JUDGE NELSON T. OVERTON
                                             AUGUST 17, 1999
SUPERIOR IRON WORKS AND
 LIBERTY MUTUAL FIRE INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Nikolas E. Parthemos (Parthemos & Bryant,
          P.C., on brief), for appellant.

          J. David Griffin (Fowler, Griffin, Coyne &
          Coyne, P.C., on brief), for appellees.


     Dennis K. Pennington ("claimant") appeals a decision of the

Workers' Compensation Commission ("commission") denying his claim

for an award of permanent partial disability ("PPD") benefits.

Claimant contends the commission (1) abused its discretion in

denying him an award of PPD benefits beyond the 500-week

limitation, when the parties had agreed that such benefits were

payable; and (2) erred in finding that he was not entitled to an

award of PPD benefits after he received 500 weeks of temporary

disability benefits, even though his accident occurred before the

1991 amendments to the Workers' Compensation Act ("the Act").    For

the following reasons, we affirm the commission's decision.

     Claimant sustained a compensable injury on April 25, 1986.

Superior Iron Works and its insurer ("employer") accepted the
claim as compensable and paid claimant temporary total

disability ("TTD") benefits for 500 weeks.

     On December 19, 1996, claimant filed an application seeking

an award of PPD benefits based upon a ten percent permanent loss

of use to his right and left legs.

     Employer's insurance representative acknowledged in a June

3, 1997 letter that a hearing was not required because employer

had agreed to pay claimant PPD benefits.   The carrier

represented to the commission that it had overpaid claimant

$9,333.70 in TTD benefits and requested that the overpayment be

deducted from claimant's PPD benefits.

     Claimant's counsel appeared for the hearing on June 5,

1997, and gave the deputy commissioner a copy of the June 3,

1997 letter.

     In an October 7, 1997 opinion, the deputy commissioner held

that the insurer, who had failed to submit copies of the checks

showing payment of TTD to claimant, had failed to prove an

overpayment of TTD benefits.   However, the deputy commissioner

denied the claimant's claim for PPD benefits based upon the

commission's holding in Potter v. Crossroads Moving and Storage,

Inc., 75 O.W.C. 337 (1996) (settled pending appeal to this

Court).

     The full commission affirmed the deputy commissioner's

decision, finding that it had consistently held that the 1991

amendments to the Act providing for payment of PPD benefits in

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excess of the 500-week limit could not be applied retroactively

to a claimant's claim where the accident occurred before the

effective date of the amendments.      In addition, the commission

found that the deputy commissioner did not abuse his discretion

in ruling upon this issue.

                                 I.

     The commission did not abuse its discretion in addressing

the issue of whether the 1991 amendments to the Act could be

applied retroactively.   The parties did not submit formal

stipulations, and the employer did not appear at the hearing.

Although the parties apparently had agreed that claimant was

entitled to PPD benefits, the commission was not required to

ignore established precedent and award such benefits in

contravention of the statute.   In fact, claimant brought this

issue to the forefront when he cited to Cross v. Newport News

Shipbuilding and Dry Dock Co., 21 Va. App. 530, 465 S.E.2d 598

(1996), in his December 19, 1996 letter in which he submitted

his claim for PPD benefits in excess of the 500-week limit.

Based upon this record, we find no abuse of discretion by the

commission.

                                 II.

     On appeal, claimant relies solely upon the Cross decision

in support of his argument.   As the commission found, that

reliance is misplaced.   Cross dealt with whether payments made

under the Longshore and Harbor Workers' Compensation Act

                                - 3 -
("LHWCA") could be credited against an employer's liability for

payments under the Virginia Act.   The issue of whether the 1991

statutory change could be applied retroactively to an injury

that occurred before the effective date of that change was not

presented by the parties in Cross nor was it addressed by this

Court, although Cross's accident occurred before the effective

date of the 1991 statutory change.     As the commission correctly

pointed out,

          [t]he issue before us, whether the 1991
          Amendments to the Workers' Compensation Act
          are retroactive, apparently was not raised
          by either party nor was this issue addressed
          by the Court of Appeals. Indeed, the Cross
          decision involved the interpretation of
          § 65.2-503(F)1 as it existed after the 1991
          Amendments. The Cross Court did not cite
          the statutory language as it existed before
          1991, even though Cross's injury occurred in
          1984.

     In general, "[t]he right to compensation in cases of

accidental injury is governed by the law in effect at the time

of the injury."   Island Creek Coal Co. v. Breeding, 6 Va. App.

1, 10, 365 S.E.2d 782, 787 (1988).

          "Retrospective laws are not favored, and a
          statute is always to be construed as
          operating prospectively, unless a contrary
          intent is manifest; but the legislature may,
          in its discretion, pass retrospective and
          curative laws provided they do not partake
          of the nature of what are technically called
          ex post facto laws, and do not impair the
          obligation of contracts, or disturb vested
          rights; and provided, further, that they are
          of such nature as the legislature might have
          passed in the first instance to act
          prospectively."

                               - 4 -
Cohen v. Fairfax Hosp. Ass'n, 12 Va. App. 702, 705, 407 S.E.2d

329, 330-31 (1991) (citation omitted).     "[S]ubstantive rights

are addressed in statutes which created duties, rights, or

obligations.   In contrast, . . . procedural or remedial statutes

merely set forth the methods of obtaining redress or enforcement

of rights."    Id. at 705, 407 S.E.2d at 331.

     The 1991 amendment recodifying former Code § 65.1-56 as

Code § 65.2-503 provided that "[c]ompensation awarded pursuant

to this section shall be in addition to all other compensation

and shall be payable after payments for temporary total

incapacity pursuant to § 65.2-500."      Code § 65.1-56, in effect

at the time of claimant's accident, provided that PPD benefits

"shall not extend the 500-week limit contained in § 65.1-54 or

§ 65.1-55."    In order for the 1991 statutory change "to apply

retroactively, . . . it must be procedural in nature and affect

remedy only, disturbing no substantive or vested rights.     The

statute must also contain an expression of retrospective

legislative intent."     Cohen, 12 Va. App. at 705, 407 S.E.2d at

331 (citations omitted).

     Here, the 1991 statutory change was not merely procedural

in nature.    It affected substantive and vested rights.   It

obligated an employer to pay PPD benefits in excess of the

500-week limit, an obligation employer did not have pursuant to

former Code § 65.1-56.    In addition, it provided a claimant with

a new right.   Finally, the statutory change contained no

                                 - 5 -
expression of a retrospective legislative intent.   Because the

amendment constituted a substantive change in the law, the

commission did not err in refusing to apply it retroactively to

claimant's claim.

     Based upon former Code § 65.1-56 in effect at the time of

claimant's accident, he was not entitled to PPD benefits in

excess of the 500-week limit.   The commission correctly applied

former Code § 65.1-56 to the facts of this case in denying

claimant's claim for PPD benefits.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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