COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Coleman
Argued at Salem, Virginia
POWHATAN CORRECTIONAL CENTER/
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 1123-02-3 JUDGE SAM W. COLEMAN III
MAY 6, 2003
VIRGINIA GRACE MITCHELL-RIGGLEMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Scott John Fitzgerald, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Judith Williams Jagdmann, Deputy Attorney
General; Edward M. Macon, Senior Assistant
Attorney General, on brief), for appellant.
No brief or argument for appellee.
Powhatan Correctional Center/Commonwealth of Virginia
(employer) appeals a decision of the Workers' Compensation
Commission awarding Cost-of-Living Adjustment (COLA) benefits to
Virginia Grace Mitchell-Riggleman (claimant). Employer contends
the commission erred as a matter of law in finding claimant was
entitled to COLA benefits beginning in June 1994 because her
monthly Social Security benefits, combined with her workers'
compensation disability benefits, exceeded eighty percent of her
pre-injury average monthly wages at all times after that date.
Because we find that the commission's opinion does not contain
an adequate statement of the findings of fact or an award which
would allow this Court to review claimant's entitlement to COLA
benefits beginning in February 2000, we remand the case.
Code § 65.1-99.1 (now Code § 65.2-709), in effect at the
time of claimant's July 19, 1990 injury by accident, provided in
pertinent part the formula for determining COLA benefits as
follows:
In the event that the combined
disability benefit entitlement of a claimant
or his dependents under the Virginia
Worker's Compensation Act and the Federal
Old-Age 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
supplements shall be payable, in addition to
other benefits payable under this Act, in
accordance with the provisions of this
section to those recipients of awards
resulting from occupational disease,
accident, or death occurring on or after
July 1, 1975, under § 65.1-54, 65.1-56 (18),
65.1-56.1(4), 65.1-65 and 65.1-65.1.
The purpose of the COLA provision is to ensure that the
value of a compensation award is not lessened due to inflation.
See Circuit City Stores v. Bower, 243 Va. 183, 189, 413 S.E.2d
55, 58 (1992). The COLA provision found in the Workers'
Compensation Act "is not self-executing. . . . [A] claim for a
cost-of-living supplement [is] cognizable only under the
change-of-condition sections of the Act. . . . [T]hese sections
require an application and a showing of eligibility by the
claimant and an award by the Commission." Jewell Ridge Coal v.
Wright, 222 Va. 68, 70, 278 S.E.2d 820, 821 (1981).
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Thus, claimant bore the burden of proving her entitlement
to COLA benefits. Id. On the other hand, employer was required
to file a change-in-condition application with the commission if
it wished to seek a credit for any overpayment of COLA benefits
it had made to claimant.
On September 18, 2000, claimant filed a letter application
with the commission requesting that it determine whether she was
entitled to COLA benefits after she reached age sixty-two and
began receiving Social Security retirement benefits. Although
advised to do so on at least two occasions, employer did not
file a change-in-condition application seeking a credit for
overpayment of COLA benefits it had allegedly made to claimant.
Thus, claimant's September 18, 2000 application presented
the sole issue properly before the commission, which was whether
claimant was entitled to an award of COLA benefits after she
began receiving Social Security retirement benefits in February
2000. Claimant did not contest the amount of COLA benefits she
had received before she began receiving Social Security
retirement benefits nor did employer file any application
seeking a credit for COLA benefits previously paid to claimant.
In considering claimant's application, the deputy
commissioner found as follows:
Mitchell's entitlement to COLA commenced
with the February 1, 1992 award on October
1, 1992. During the period June 1994
through September 1994, however, her SSI
benefit was such that she was not entitled
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to COLA supplements during that period.
Furthermore, the Commission finds that
Mitchell's entitlement ended on November 30,
1999 at which time, her Social Security
payments increased. The Commission
therefore concludes that from the total COLA
of $19,390.47, $611.74 must be deducted.
Consequently, Mitchell's COLA entitlement is
$18,778.73.
(Emphasis added.) The deputy commissioner entered an award in
favor of claimant for the payment of $18,778.73 in COLA
benefits, and stated that "[t]he employer is to receive credit
for any supplements paid." The deputy commissioner did not
award COLA benefits to claimant after November 30, 1999.
In its opinion, the full commission rejected employer's
argument that claimant's Social Security disability benefits and
lost wage benefits had always exceeded 80% of her pre-injury
average weekly wage. In doing so, the commission found as
follows:
[Employer] also argues that an unknown
portion of [claimant's] retirement benefits
are actually disability benefits. This
latter argument is incorrect. The Social
Security Administration notes that the
claimant began receiving retirement benefits
in February 2000. Although [claimant's]
"technical entitlement to disability
continues," she is not receiving sums which
represent disability as opposed to
retirement benefits.
With regards to the Commission's
calculations dated August 2001, we find that
these calculations are accurate.
The Opinion below is therefore
AFFIRMED.
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In affirming the deputy commissioner's decision and award,
the full commission affirmed the finding that claimant was
entitled to COLA benefits from October 1, 1992 to June 1994, and
September 1994 to November 30, 1999. The deputy commissioner
did not award claimant COLA benefits after November 30, 1999
and, therefore, if the full commission intended to award COLA
benefits to claimant beginning February 2000 because she was
receiving Social Security retirement benefits, not Social
Security disability benefits, the commission was required to
make specific factual findings with respect to that issue and to
enter an appropriate award. It did not do so. Moreover, the
commission referred to August 2001 calculations as support for
its decision; however, the record does not contain any
calculations dated August 2001. Furthermore, the deputy
commissioner's August 17, 2001 opinion does not contain any
mathematical calculations to support the deputy commissioner's
findings and award.
Code § 65.2-705(A) requires the commission to "make an
award, which together with a statement of the findings of fact,
rulings of law, and other matters pertinent to the questions at
issue, shall be filed with the record of the proceedings."
Because the commission did not comply with the statute, we
vacate the commission's opinion and remand this case to the
commission for it to provide adequate factual findings and an
award with respect to claimant's entitlement to COLA benefits
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beginning in February 2000. See Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 384, 363 S.E.2d 433, 438 (1987).
Vacated and remanded.
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