Powhatan Correctional Center v. Mitchell-Riggleman

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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