COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
JOSEPH COUSAR
OPINION BY
v. Record No. 1766-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 10, 1998
PEOPLES DRUG STORE and
PACIFIC EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John C. Duncan, III (Duncan and Hopkins,
P.C., on brief), for appellant.
Douglas A. Seymour (Law Offices of Harold A.
MacLaughlin, on brief), for appellees.
Joseph Cousar ("claimant") appeals the Workers' Compensation
Commission's order vacating a twenty percent late payment penalty
against Peoples Drug Store and its insurer, Pacific Employers
Insurance Company (collectively "employer"). Claimant asserts
that his benefit payments became due on the date of the final
order of this Court and that the commission erred in vacating the
penalty. We agree and hold that the payments were due at that
time and reverse the commission.
On June 10, 1996, the commission awarded claimant permanent
total disability benefits beginning February 20, 1995. Employer
appealed. On February 18, 1997, we affirmed the award. Employer
did not appeal this decision. On March 21, 1997, employer mailed
to claimant several checks representing the benefits due, and
claimant received them March 25, 1997.
At claimant's request, the deputy commissioner assessed a
twenty percent penalty against employer pursuant to Code
§ 65.2-524 for failure to make payment within two weeks after it
became due. Employer appealed the assessment of the penalty.
The full commission reversed and vacated the penalty order. On
appeal, claimant requests reinstatement of the twenty percent
penalty.
The sole question before us is whether benefit payments
become due at the time of the entry of a final order of this
Court or upon the expiration of the time provided for appeal of
our decision to the Supreme Court. This is an issue of first
impression. Claimant contends the awarded benefits became due on
February 18, 1997, the date of the final order of this Court, and
that when employer failed to make payment as required within
fourteen days, by March 4, the twenty percent penalty of Code
§ 65.2-524 became mandatory. Employer argues that the benefits
did not become due until March 20, 1997 because the appeal period
as provided by Rule 5:17(a)(2) for an appeal from the Court of
Appeals to the Supreme Court acts as a suspension of an award
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until the thirty-day period expires. Further, employer contends
the commission's decision to vacate the penalty is supported by
credible evidence and the precedent of Code § 65.2-706.
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"[A] petition for appeal must be filed with the clerk of
this Court . . . in the case of an appeal from the Court of
Appeals, within 30 days after entry of the judgment appealed from
or a denial of a petition for rehearing." Rule 5:17(a)(2).
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In vacating the penalty order, the commission extended the
grace period in Code § 65.2-524, limited on its face to the
two-step process of appeal to the full commission and this Court,
to the application period for perfecting an appeal to the Supreme
Court. As a general rule, "'[t]he construction afforded a
statute by the public officials charged with its administration
and enforcement is entitled to be given weight by a court.'"
Lynch v. Lee, 19 Va. App. 230, 232, 450 S.E.2d 391, 392 (1994)
(citation omitted). However, "[t]his Court should withhold
deference . . . 'when the commission's statutory interpretation
conflicts with the language of the statute . . . .'" Lynch, 19
Va. App. at 232-33, 450 S.E.2d at 393 (quoting Commonwealth v.
May Bros., Inc., 11 Va. App. 115, 119, 396 S.E.2d 695, 697
(1990)).
Code § 65.2-524 provides that
[i]f 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 Code § 65.2-705 or (ii)
the period in which a notice of appeal [to
this Court] may be filed pursuant to Code
§ 65.2-706.
This provision specifically suspends the penalty pending an
appeal of right to the full commission within twenty days, see
Code § 65.2-705, or to this Court within thirty days. See Code
§ 65.2-706. It goes no further. "[T]he appeal shall operate as
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a suspension of the award and no employer shall be required to
make payment of the award . . . until the questions at issue
therein shall have been fully determined in accordance with the
provisions of this title." Code § 65.2-706(C) (emphasis added).
Although an employer who files timely appeals to the commission
and this Court is not obligated to make any payment until the
Court of Appeals rules, nothing in Code § 65.2-706 or elsewhere
extends the carrier's right to delay payment without penalty
beyond the Court of Appeals level of review.
"The main purpose of statutory construction is to determine
the intention of the legislature 'which, absent constitutional
infirmity, must always prevail.'" Last v. Virginia State Bd. of
Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992) (quoting
Board of Supervisors v. King Land Corp., 238 Va. 97, 103, 380
S.E.2d 895, 897 (1989)). "Where a statute is unambiguous, the
plain meaning is to be accepted without resort to the rules of
statutory interpretation." Last, 14 Va. App. at 910, 412 S.E.2d
at 205. "Unless a literal construction of a statute would result
in internally conflicting provisions amounting to a 'manifest
absurdity,' courts cannot construe a statute in a manner that
would result in holding the legislature did not mean what it
actually expressed." Last, 14 Va. App. at 910, 412 S.E.2d at 205
(citing Dairyland Ins. Co. v. Sylva, 242 Va. 191, 194, 409 S.E.2d
127, 129 (1991)).
"[W]hen analyzing a statute, we must assume that 'the
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legislature chose, with care, the words it used when it enacted
the relevant statute, and we are bound by those words as we
interpret the statute.'" City of Virginia Beach v. ESG Enters.,
Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (citation
omitted). "'Courts are not permitted to rewrite statutes. This
is a legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be
applied.'" Barr v. Town & Country Properties, Inc., 240 Va. 292,
295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v.
Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). "We
may not add to a statute language which the legislature has
chosen not to include." County of Amherst Bd. of Supervisors v.
Brockman, 224 Va. 391, 397, 297 S.E.2d 805, 808 (1992).
Prior to 1994, payment was not suspended during the period
of application for review. See, e.g., Sprouse v. Denton Constr.
Co., 71 O.W.C. 308 (1992). In 1994, the legislature amended Code
§ 65.2-524 by adding the second sentence, providing for
suspension of payment during the periods of application for a
review of right to the full commission and this Court. This
legislative action clearly manifests the General Assembly's
intent to shelter employers from payment during these periods.
Nothing in the amendment, however, permits an inference that the
legislature intended further relief from the statutory penalty to
cover the appeal period to the Supreme Court. Indeed, the
amended statute specifically did not include an appeal to the
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Supreme Court. "If the legislature had intended to [provide
relief from payments during the period for appeal to the Supreme
Court], it could have done so. The legislature did not write its
statute expansively. We will not so construe it." Solid Gold
Corp. v. Wang, 18 Va. App. 66, 69, 441 S.E.2d 643, 645 (1994).
We cannot add such additional protection to a statute so limited
in scope, nor can we rewrite a statute with language not used by
the legislature. For the foregoing reasons, we reverse.
Reversed.
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