COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
GREGORY A. MORRIS
OPINION BY
v. Record No. 2995-97-4 JUDGE CHARLES H. DUFF
JANUARY 12, 1999
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
James E. Swiger (Swiger & Cay, on brief), for
appellant.
Louis E. Matthews, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General;
Michael K. Jackson, Senior Assistant Attorney
General, on brief), for appellee.
Gregory A. Morris appeals a decision of the Circuit Court of
Fauquier County ("circuit court") affirming a decision of the
Virginia Retirement System ("VRS"). Morris contends the trial
court erred in upholding VRS's determination that Code
§ 51.1-157(C) is unambiguous and required VRS to reduce Morris's
monthly VRS benefits by the amount of permanent partial
disability ("PPD") benefits awarded to him by the Virginia
Workers' Compensation Commission ("commission") pursuant to Code
§ 65.2-503. Finding that the trial court erred in construing
Code § 51.1-157(C), we reverse.
I.
In July 1993, while employed as a Virginia State Trooper,
Morris sustained serious and permanent injuries caused by the
discharge of a firearm during a training drill. Beginning in
July 1993, Morris received temporary total disability ("TTD")
benefits pursuant to the Workers' Compensation Act ("the Act") in
the amount of $451 per week.
After the commission awarded Morris workers' compensation
benefits, he applied for state retirement benefits from VRS. VRS
approved his application. Morris's full VRS benefit, before
adjustment for workers' compensation payments, was $2,238 per
month. VRS offset this amount, pursuant to Code § 51.1-157(C),
by the $451 in TTD benefits received by Morris each week, a
$1,954 per month reduction. As a result, Morris received $284
per month from VRS ($2,238 minus $1,954).
On February 12, 1996, the commission awarded Morris PPD
benefits pursuant to Code § 65.2-503, effective September 1,
1995, in the amount of $451 per week for 276.5 weeks. These
benefits were payable for sixty-eight percent loss of use of
Morris's left leg and for ninety percent loss of use of his right
leg. It is undisputed that these benefits were awarded for the
permanent loss of use of the lower extremities and not for wage
loss due to inability to return to work.
Contemporaneous with the PPD award, Morris also established
an actual wage loss, an inability to return to his pre-injury
work, entitling him to a weekly award of temporary partial
disability ("TPD") benefits of $156.55 pursuant to Code
§ 65.2-502. The combined TPD benefits and PPD benefits payable
to Morris totalled $607.55 per week, for a total payment of
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$2,633 per month.
Morris notified VRS by letter that the commission had
reduced his lost wage benefits from $451 per week to $156.55 per
week. As a result of reviewing the workers' compensation award,
VRS notified Morris that it intended to reduce his VRS benefits
to reflect what it contended to be an increase in the workers'
compensation benefits he had been awarded. VRS combined the TPD
benefits with the PPD benefits and offset those benefits against
Morris's VRS benefits. The total workers' compensation benefits
of $2,633 per month exceeded the VRS monthly benefit of $2,238.
VRS notified Morris of its long-standing position that, pursuant
to Code § 51.1-157(C), it was required to offset his VRS benefits
by any workers' compensation payments he received.
On January 9, 1997, VRS requested an informal fact-finding
hearing to determine if it should reinstate Morris's VRS
payments, which had been eliminated as a result of the change in
his workers' compensation award. On February 6, 1997, Morris
waived his right to an evidentiary hearing because no facts were
in dispute. On February 12, 1997, the appointed VRS fact finder
ruled that the VRS benefits had to be offset by the TPD and PPD
benefits received by Morris because Code § 51.1-157(C) requires
that any payments under the Act must offset the VRS allowance.
In a February 25, 1997 letter, the Director of VRS issued
the final agency decision that denied Morris's request that his
VRS benefits not be offset by the amount payable to him under the
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Act for the permanent loss of use of his lower extremities.
Morris conceded that VRS was entitled to offset his VRS benefits
with the amount he received as TPD benefits, but not with the
amount he received as PPD benefits.
Morris filed a timely appeal to the circuit court. By
opinion letter dated October 29, 1997, the circuit court denied
the relief sought by Morris. The circuit court held that Code
§ 51.1-157(C) is not ambiguous and that VRS did not err in ruling
that Morris's VRS benefits should be reduced by the PPD benefits
received by him pursuant to Code § 65.2-503. The circuit court
entered its final order on November 18, 1997. This appeal
followed.
II.
In the proceedings before VRS and the circuit court, the
facts were stipulated. Therefore, the issue presented by this
appeal is one of law, viz the interpretation of the applicable
statutes. In Sims Wholesale Co. v. Brown-Forman Corp., 251 Va.
398, 468 S.E.2d 905 (1996), the Supreme Court held as follows:
The sole issue involves a question of
statutory interpretation. The issue does not
involve "the substantiality of the evidential
support for findings of fact," which requires
great deference because of the specialized
competence of the agency. Instead, when, as
here, the question involves a statutory
interpretation issue, "little deference is
required to be accorded the agency decision"
because the issue falls outside the agency's
specialized competence. In sum, pure
statutory interpretation is the prerogative
of the judiciary.
Id. at 404, 468 S.E.2d at 908 (citations omitted).
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Appellant contends that Code § 51.1-157(C) is ambiguous as
applied to the facts of this case. We agree. That statute
provides in its pertinent part as follows:
Any allowance payable to a member who
retires for disability from a cause
compensable under the Virginia Workers'
Compensation Act shall be reduced by the
amount of any payments under the provisions
of the Act in effect on the date of
retirement of the member and the excess of
the allowance shall be paid to the member.
When the time for compensation payments under
the Act has elapsed, the member shall receive
the full amount of the allowance payable
during his lifetime and continued disability.
If the member's payments under the . . . Act
are adjusted or terminated for refusal to
work or to comply with the requirements of
§ 65.2-603, his allowance shall be computed
as if he were receiving the compensation to
which he would otherwise be entitled.
(Emphasis added.)
Taken literally, the language "any payments" under the Act
would include payments for medical expenses and vocational
rehabilitative services pursuant to Code § 65.2-603; payments of
the twenty percent penalty for the late payments of compensation
under Code § 65.2-524; payments for costs and attorney's fees
under certain circumstances pursuant to Code § 65.2-713; and
payments for cost of living supplements pursuant to Code
§ 65.2-709. However, the record shows that none of these
"payments" are considered by VRS in adjusting a beneficiary's
entitlement.
VRS argues that "any payments" as used in the statute means
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only those payments made directly to a claimant. Such argument
might serve as the basis for not adjusting retirement benefits
for medical expenses paid to health care providers but does not
explain VRS's treatment of the twenty percent penalty assessed on
benefits due to untimely payments (Code § 65.2-524) or for costs.
These benefits are payable directly to the claimant.
In Lee-Warren v. School Board of Cumberland County, 241 Va.
442, 403 S.E.2d 691 (1991), the Supreme Court held that
"[l]anguage is ambiguous when it may be understood in more than
one way . . . . If the language is difficult to comprehend, is
of doubtful import, or lacks clearness and definiteness, an
ambiguity exists." Id. at 445, 403 S.E.2d at 692.
We hold that the term "any payments under the provisions of
the Act" is ambiguous, at least as it relates to the treatment of
PPD benefits.
III.
It is well settled that in construing the intent of Code
§ 51.1-157(C), we must read the statute in pari materia with
other statutes relating to the same subject matter. We determine
the legislature's intention from the whole of the enactments.
See Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765,
767 (1994). Code § 51.1-158 deals with the same subject matter
as Code § 51.1-157 and provides as follows:
The retirement allowance (i) of any
member retiring for disability from a cause
compensable under the Virginia Workers'
Compensation Act (§ 65.2-100 et seq.) or (ii)
of any surviving spouse, minor child, or
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parent, eligible to receive a benefit as a
result of the death of a member from a cause
compensable under the Virginia Workers'
Compensation Act, who elects to receive a
lump-sum settlement in lieu of periodic
payments for disability or death compensable
under the Virginia Workers' Compensation Act
shall be adjusted by an amount determined by
dividing the workers' compensation benefit
which such person would have received had the
lump-sum settlement not been consummated,
into the settlement actually accepted by the
member, surviving spouse, child, or parent.
(Emphasis added.)
Morris contends that if VRS is correct in its argument that
the words "any payments" contained in Code § 51.1-157(C) include
benefits for permanent loss of use of his legs, then he would be
able to avoid the reduction of his VRS benefits simply by
accepting a lump-sum settlement rather than the usual periodic
payments over a fixed number of weeks. He argues that the
payments for permanent loss of use of his legs are not payments
for "disability or death." He contends this result could not
have been intended by the legislature. We agree. Had the
legislature intended that the phrases "any payments" in Code
§ 51.1-157(C) and "periodic payments for disability or death" in
Code § 51.1-158 meant the same thing, they would have used the
same terms. See Campbell v. Commonwealth, 13 Va. App. 33, 38,
409 S.E.2d 21, 24 (1991).
IV.
Lastly, we turn to VRS's position that the obvious purpose
of the two statutes is to prevent "double-dipping" or receiving
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payment from two state agencies for the same loss. We agree that
such is the purpose of the statutes but disagree that the
payments for loss of use of the legs and the retirement benefits
from VRS are for the same loss.
Retirement benefits are designed to replace, at least
partially, wages lost by virtue of retirement. They have no
relation to injury or ability to work. Most retirees drawing
such benefits do so without injury or disability.
Benefits paid pursuant to Code § 65.2-503 of the Act for the
loss of use of a body member are not payments for lost wages but
for loss of what might be termed "human capital." These benefits
are in no way contingent upon or related to a worker's capacity
to work or income earned after return to work. In that regard,
they are unique.
Double-dipping would occur if Morris were able to draw wage
loss benefits (either total or partial) under Code §§ 65.2-500
and 65.2-501 of the Act and at the same time draw unadjusted VRS
retirement benefits. Morris makes no such claim. His contention
is based on benefits paid under Code § 65.2-503 for loss of use
of a body member.
Benefits payable under Code § 65.2-503 are unique in other
respects. If Morris were to die from a cause not related to his
July 19, 1993 gunshot wounds, his beneficiaries would be entitled
to continued payments under Code § 65.2-503 until the full amount
of the loss of use benefits was paid to his statutory dependents.
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We also note that the last sentence of Code § 51.1-157(C)
states: "If the member's payments under the Virginia Workers'
Compensation Act are adjusted or terminated for refusal to work
or to comply with the requirements of § 65.2-603, his allowance
shall be computed as if he were receiving the compensation to
which he would otherwise be entitled." However, permanent loss
of use benefits payable under Code § 65.2-503 cannot be adjusted
or terminated for a refusal to work. This is a common-sensical
result, inasmuch as a refusal to work does not affect the degree
of permanent loss of use so as to prejudice the employer.
Additionally, Code § 65.2-510 expressly states that if an
employee refuses to accept employment procured for him or her, he
or she shall only be entitled to the benefits provided in Code
§ 65.2-503, permanent loss of use, and for benefits under Code
§ 65.2-603, medical benefits, excluding coverage for vocational
rehabilitation.
Accordingly, we hold that Code § 51.1-157(C) is ambiguous
and that construing such section with Code § 51.1-158 utilizing
the doctrine of in pari materia, the legislature intended that
retirement benefits would be reduced by wage loss or death
benefits paid to or on behalf of a claimant but would not be
reduced for permanent loss of use benefits paid pursuant to Code
§ 65.2-503.
The judgment appealed from is reversed, and VRS is directed
to make payments to appellant in accordance herewith.
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Reversed.
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