COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
CECIL WILLIAM RATLIFF, JR.
OPINION BY
v. Record No. 1255-02-3 JUDGE G. STEVEN AGEE
JANUARY 21, 2003
CARTER MACHINERY CO., INC. AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Traci M. Coleman (Clarence E. Phillips, P.C.,
on brief), for appellant.
(Linda D. Frith; E. Albion Armfield; Frith,
Anderson & Peake, P.C., on brief), for
appellees. Appellees submitting on brief.
Cecil William Ratliff (Ratliff) appeals a decision of the
Workers' Compensation Commission (commission) denying his
request to assess a twenty percent statutory penalty under Code
§ 65.2-524 against Carter Machinery Co., Inc. and its insurer
(employer). For the reasons that follow, we affirm the
commission's decision.
I. BACKGROUND
The facts are not in dispute. Ratliff sustained a
compensable injury to his back for which the parties filed a
memorandum of agreement awarding compensation benefits to him.
This award was terminated when Ratliff returned to work, but
Ratliff sustained another back injury resulting in a second
award of compensation benefits. The parties resolved both
claims through a lump-sum compromise settlement in the amount of
$85,000 which was approved by an order of the commission on
September 7, 2001. The order stipulated that "[t]he aforesaid
amounts, which total $85,000, shall be due within ten (10) days
after entry of this Order."
Ratliff's attorney received the settlement check from
employer in his office on October 1, 2001; however Ratliff did
not personally receive the check until October 2, 2001. Ratliff
then filed a claim with the commission asserting he was entitled
to a twenty percent statutory penalty under Code § 65.2-524
because payment was not made by October 1, 2001 (fourteen days
after September 17, 2001, when payment was due under the order).
The employer argued imposition of the penalty was not
authorized because Code § 65.2-524, read in its entirety,
extends the fourteen-day period by an additional twenty days
(the review period under Code § 65.2-705).
As a preliminary matter, the deputy commissioner determined
that under Audobon Tree Service v. Childress, 2 Va. App. 35, 341
S.E.2d 211 (1986), the date of mailing a payment to a claimant,
not to his attorney, is the date payment is "received." As
Ratliff actually received the check on October 2, 2001, it was a
day late if his reading of Code § 65.2-524 was correct.
The deputy commissioner, however, found that payment was
timely made by employer and no penalty was due. The deputy
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commissioner determined that the period in which payment could
be made without penalty was governed by the second sentence of
Code § 65.2-524 which provides a grace period of two weeks after
the Code § 65.2-705 review period ends. As October 2, 2001 was
within that time period, no penalty could be imposed. The full
commission affirmed the deputy commissioner's decision, and
Ratliff now appeals to this Court.
II. ANALYSIS
The facts in this case are undisputed, and the question
presented is solely an issue of law. Issues of law are reviewed
de novo by this Court. Rusty's Welding Service, Inc. v. Gibson,
29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (citing
Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474
S.E.2d 856, 857-58 (1996)).
The issue on appeal is one of first impression, although we
commented by dicta in Cousar v. Peoples, 26 Va. App. 740, 743,
496 S.E.2d 670, 672 (1998), as to the meaning of Code
§ 65.2-524. The statute provides, inter alia,
If any payment is not paid within two weeks
after it becomes due, there shall be added
to such unpaid compensation an amount equal
to twenty percent thereof . . . . No such
penalty shall be added, however, to any
payment made within two weeks after the
expiration of (i) the period in which
Commission review may be requested pursuant
to § 65.2-705 . . . .
Code § 65.2-524.
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Ratliff acknowledges that the employer could not be subject
to the twenty percent penalty, according to the first sentence
of the statute, until October 1, 2001. However, Ratliff fails
to address how the second sentence of the statute affects his
claim.
The case law relied upon by Ratliff predates the 1994
amendment of Code § 65.2-524, which added the second sentence of
that statute. The 1994 amendment provides the two-week period
does not begin to run until the time for a review request to the
full commission expires.
Under basic rules of statutory construction,
we examine a statute in its entirety, rather
than by isolating particular words or
phrases. When the language in a statute is
clear and unambiguous, we are bound by the
plain meaning of that language. We must
determine the General Assembly's intent from
the words appearing in the statute, unless a
literal construction of the statute would
yield an absurd result.
Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001)
(internal citations omitted); see also Peacock v. Browning
Ferris, Inc., 38 Va. App. 241, 249, 563 S.E.2d 368, 372 (2002).
So long as the employer could request review by the full
commission under Code § 65.2-705, the statute unequivocally
provides the twenty percent penalty does not apply until
fourteen days after the expiration of the twenty-day review
period.
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In Cousar, 26 Va. App. 740, 496 S.E.2d 670, we noted the
effect of the General Assembly adding the second sentence of
Code § 65.2-524 in its 1994 amendment: "[t]his provision
specifically suspends the penalty pending an appeal of right to
the full commission within twenty days." Id. at 744, 496 S.E.2d
at 672. That reading is logical and persuasive. The statute
means what it says: the penalty will not apply until two weeks
after the twenty-day appeal period to the full commission
expires. "This legislative action clearly manifests the General
Assembly's intent to shelter employers from payment during these
periods." Id. at 745, 496 S.E.2d at 673. In this case that
means payment could have been made by the employer through
October 11, 2001, without liability for a penalty under Code
§ 65.2-524. 1
Ignoring the plain meaning of the statute, Ratliff
essentially argues that by setting a date certain for payment,
September 17, 2001, the parties superseded the statute by
private contract. This they cannot do. The legal basis for the
employer's payment to Ratliff is found in the commission's
order, not in a memorandum of agreement between the parties.
1
Assuming employer received the commission's order of
September 7, 2001, on that date, the twenty-day review period
under Code § 65.2-705 expired, at the earliest, on September 27,
2001. Therefore, the additional fourteen-day period expired no
earlier than October 11, 2001, so no penalty could be imposed
for a payment received before that date. Of course, the time
for calculating the twenty-day period of Code § 65.2-705 runs
from the party's receipt of the order, not the date of entry.
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Because the settlement must be approved by the commission, the
parties may not contradict, by private agreement or otherwise,
the terms of the statute. See Code § 65.2-701(A) ("If approved,
the agreement shall be binding, and an award of compensation
entered upon such agreement shall be for all purposes
enforceable as provided by § 65.2-710. If not approved, the
same agreement shall be void." (Emphasis added.)); Damewood v.
Lanford Bros. Co., 29 Va. App. 43, 45, 509 S.E.2d 530, 531
(1999).
III. CONCLUSION
We hold that Code § 65.2-524 expressly prohibits the
imposition of a twenty percent penalty for late payment of a
compensation claim until fourteen days after the time for review
has expired under Code § 65.2-705. Accordingly, the decision of
the commission is affirmed.
Affirmed.
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