COURT OF APPEALS OF VIRGINIA 

Present: Judges Alston, Chafin and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

ROSARIO RUIZ DOMINGUEZ 

 MEMORANDUM OPINION

 BY 

v. Record No. 0671-16-4 JUDGE ROSSIE D. ALSTON, JR 

 MARCH 28, 2017 

HARDEE’S AND TRAVELERS INDEMNITY 

 COMPANY OF AMERICA 

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

Diane C.H. McNamara (The Law Office of Diane C.H. 

McNamara, on brief), for appellant. 

Scott E. Snyder (Law Offices of Mark J. Beachy, on brief), for 

appellees. 

 Rosario Ruiz Dominguez (appellant) appeals the decision of the Workers’ Compensation 

Commission (Commission) finding that appellant is not entitled to cost of living adjustments 

(COLA) under Code § 65.2-709. Appellant argues that the Commission erred as a matter of law 

in denying her request for COLA benefits. We affirm the decision of the Commission. 

BACKGROUND

 On August 26, 2013, appellant suffered an industrial accident while working at a 

Hardee’s restaurant, sustaining compensable injuries to her head and neck. She also suffered a 

concussion. On March 14, 2014, a stipulated order was entered stating that appellant’s average 

weekly wage at the time of the injury was $221.65, with a corresponding compensation rate of 

$221.65. It also included the periods of time that appellant was entitled to disability benefits, 

specifically: temporary total disability beginning September 11, 2013, through October 14, 

                                                             

Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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2013, inclusive, at a rate of $221.65, based on pre-injury average weekly wage of $221.65; 

temporary partial disability beginning October 15, 2013, through December 8, 2013, inclusive, at 

a rate of $36.10 based on a post-injury average weekly wage of $167.50, as compared to a 

pre-injury average weekly wage of $221.65; and temporary total disability beginning December 

9, 2013, through the present and continuing, at a rate of $221.65, based on a pre-injury average 

weekly wage of $221.65. Medical benefits were also awarded for as long as necessary. 

 On November 13, 2014, appellant filed an application for COLA benefits and requested a 

hearing. The Commission rejected appellant’s claim on December 11, 2014, because she did not 

include the social security benefit information form with the application. On that same date, 

appellant filed a new application for COLA benefits with the necessary social security benefit 

information. The Commission issued a “Notification of COLA Entitlement” on January 15, 

2015, and on this document there was a note stating that “[appellant] is not entitled to COLA 

because she is receiving [one-hundred percent] of her average weekly wage. She is receiving 

more than [eighty percent].” 

 A hearing took place on June 30, 2015, before a deputy commissioner. In an opinion 

issued on October 5, 2015, the deputy commissioner cited Davis v. Alternative Community and 

American Zurich Insurance Co., JCN 2179951, 2013 VA Wrk. Comp. LEXIS 1658 (VA Wrk. 

Comp. May 7, 2013), when determining that appellant’s temporary total disability rate of 

$221.65 exceeded eighty percent of her established pre-injury average weekly wage of $221.65. 

Thus, pursuant to Code § 65.2-709, appellant was not entitled to COLA benefits. Accordingly, 

the deputy commissioner denied appellant’s claim and dismissed the case. 

 Appellant filed a request for review on October 19, 2015. The Commission reviewed the 

deputy commissioner’s opinion and issued its own opinion with a majority of the Commission 

affirming the deputy commissioner’s decision. This appeal followed. 
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ANALYSIS

Appellant argues that the Commission erred as a matter of law by denying her request for 

COLA benefits. We disagree. 

Statutory interpretation is a pure question of law, which is reviewed de novo. Prince 

William Cnty. Sch. Bd. v. Rahim, 58 Va. App. 493, 499-500, 711 S.E.2d 241, 244 (2011). This 

Court is ‘“required to construe the law as it is written’ and ‘an erroneous construction by [the 

Commission] cannot be permitted to override the clear mandates of [the] statute.’” Danville 

Radiologists, Inc. v. Perkins, 22 Va. App. 454, 458, 470 S.E.2d 602, 604 (1996) (quoting 

Pavlicek v. Jerabek, Inc., 21 Va. App. 50, 58, 461 S.E.2d 424, 428 (1995)). “When the language 

of a statute is unambiguous, we are bound by the plain meaning of that language.” Conyers v. 

Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing 

Campbell v. Harmon, 271 Va. 590, 597-98, 628 S.E.2d 308, 311-12 (2006); Virginia Polytechnic 

Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)). 

“[W]e must give effect to the legislature’s intention as expressed by the language used unless a 

literal interpretation of the language would result in a manifest absurdity.” Id. (citing Boynton v. 

Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006); Williams v. Commonwealth, 265 Va. 

268, 271, 576 S.E.2d 468, 470 (2003); Woods v. Mendez, 265 Va. 68, 74-75, 574 S.E.2d 263, 

266 (2003)). 

At issue in the instant matter, is the entitlement to cost of living supplements, which are 

governed pursuant to the Code § 65.2-709. The plain language of the statute identifies the 

threshold level of entitlement as a cost of living supplement. Code § 65.2-709(A) sets the 

framework for determining whether a claimant is eligible for a cost of living supplement. The 

statute states, in part: 

In the event that the combined disability benefit entitlement of a 

claimant or his dependents under this title and the Federal Old-Age 
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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 supplement shall be payable, in addition to the 

other benefits payable under this title, in accordance with the

provision of this section. 

This means that when determining whether or not appellant is eligible for COLA benefits it must 

be determined whether or not a claimant’s combined disability benefit entitlement is over eighty 

percent of her average monthly earnings. 

 In this case, the parties stipulated to several facts in an order from March 2014. These 

facts included that appellant’s average pre-injury weekly wage was $221.65, and the 

compensation rate she received was $221.65. This is one hundred percent of appellant’s average 

pre-injury weekly wage. Thus, looking to the plain meaning of Code § 65.2-709(A), appellant is 

ineligible for any COLA benefits. 

 This finding is consistent with governing case law. In Atchison v. May Department 

Stores Company, 225 Va. 525, 532, 304 S.E.2d 640, 644 (1983), the Supreme Court of Virginia 

held that the Commission was correct in concluding that the claimant therein was not entitled to 

prior or future supplements so long as his social security payment and basic award claimant 

received equaled eighty percent of the average monthly wage. Similarly, in the recent 

Commission opinion in Davis, 2013 VA. Wrk. Comp. LEXIS 1658, the Commission found that 

the plain language of Code § 65.2-709 does not entitle a claimant to receive a cost of living 

supplement if the claimant’s combined entitlement under the Virginia Workers’ Compensation 

Act and the Social Security Administration is eighty percent or more of their pre-injury average 

weekly wage. The Commission found that it could not interpret the statute to mean that 

claimants who were not receiving social security disability benefits were automatically entitled 

to COLA benefits even if their compensation rate was over eighty percent of their pre-injury 

average weekly wage. Id. at *4. Thus, the claimant in that case received a minimum 
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compensation rate of $172.74, which was more than eighty percent of her pre-injury average 

weekly wage of $197.47, and as a result, she was not entitled to COLA benefits. Id. at *5. 

By the same token, appellant in this case received an award of over eighty percent of her 

monthly average pay and is not entitled to future supplements. 

Appellant relies on cases Clinchfield Coal Company v. Anderson 222 Va. 62, 67, 278 

S.E.2d 817, 820 (1981), and Nakpodia v. Marriott Corporation and Liberty Mutual Insurance 

Company, 60 O.I.C. 322 (1982), to support her contention that she is entitled to a cost of living 

supplement. However, both cases stand for the proposition that even though a full cost of living 

supplement causes a claimant’s total compensation benefits to exceed the weekly average, such a 

supplement can still be awarded if the total amount of compensation before that is less than 

eighty percent of the average monthly wage. Thus, these principles do not apply unless 

appellant’s total amount of compensation before receiving cost of living supplements equals less 

than eighty percent. 

 Appellant in this case is not receiving any money from the Social Security 

Administration, but her minimum compensation rate of $221.65 is one hundred percent of her 

pre-injury average weekly wage. The plain language of Code § 65.2-709 does not entitle a 

claimant to receive a cost of living supplement if the claimant’s combined entitlement under the 

Virginia Workers’ Compensation Act and the Social Security Administration is eighty percent or 

more of their pre-injury average weekly wage. Accordingly, we affirm the Commission’s 

decision. 

Affirmed.