COURT OF APPEALS OF VIRGINIA
Present: Judges Alst on, Chafin and Senio r Judge Annunziata Argued at Alexandria, Virginia

ROSARIO RUIZ DOMINGUEZ MEMORANDUM OPINION  BY v. Record No. 0671-16-4 JUDGE ROSSI E D. ALSTON, JR MARCH 28, 2017 HARDEE’S AND TRAVE LERS INDEMNITY COMPANY OF AMERICA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Diane C.H. McNamara (The L aw 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 (appella nt) 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 Commis sion erred as a matter of law in denying her request for COLA benefits. We affirm the decisi on of the Commission.
B ACKGROUND On August 26, 2013, appellant suffered an industrial accident while working at a Hardee’s restaurant, sustaining c ompensable injuries to her hea d and neck. She also suffered a concussion. On March 14, 2014, a sti pulated order was entered stating that appellant’s average weekly wage at the time of the injury was $221.65, with a corre sponding compensation rate of $221.65. It also included the period s of time that appellant w as entitled to disability benefits, specifically: temporary total di sability beginning September 1 1, 2013, through October 14,

 Pursuant to Code § 17.1-413, this op inion is not designated for publication.UNPUBLISHED- 2 - 2013, inclusive, at a rate of $221.65, based on pre-injury aver age weekly wage of $221.65; temporary partial disabilit y beginning October 15, 2013, throug h December 8, 2013, inclusive, at a rate of $36.10 based on a post-injur y average weekly wage of $167.50, as compared to a pre-injury average weekly wag e of $221.65; and temporary total disability beginning December 9, 2013, through the present and c ontinuing, at a rate of $221. 65, based on a pre-injury average weekly wage of $221.65. Medical ben efits were als o awarded for as long as necessary. On November 13, 2014, appellant fi led 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 bene fit information form with the a pplication. On that same date, appellant filed a new applicati on for COLA benefits with the ne cessary social security benefit information. The Commission issu ed a “Notification of COLA Ent itlement” on January 15, 2015, and on this document there was a note stating that “[appe llant] is not entitled to COLA because she is receiving [one-hundred percent] of her average w eekly wage. She is receiving more than [eighty percent].” A hearing took place on June 30, 2015, before a deputy commiss ioner. 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 a verage weekly wage of $221.65. Thus, pursuant to Code § 65.2-709, appellant was not entitled t o COLA benefits. Accordingly, the deputy commissione r 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 foll owed.- 3 - A

NALYSIS Appellant argues that the Commi ssion erred as a matter of law b y denying her request for COLA benefits. We disagree. Statutory interpretation is a pure question of law, which is re viewed 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 constru e the law as it is written’ and ‘ an erroneous cons truction 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, In c., 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. Interac tive Return Serv., 271 Va. 304, 3 09, 626 S.E.2d 436, 438 (2006)). “[W]e must give effect to the leg islature’s intention as expres sed by the language used unless a literal interpretation of the la nguage would result in a manife st absurdity.” Id. (citing Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006); Willi ams 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 l iving supplements, which are governed pursuant to the C ode § 65.2-709. The plain language o f the statute identifies the threshold level of entitlement a s 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 o f a claimant or his dependents under th is title and the Federal Old -Age- 4 - Survivors and Disability Insuran ce Act is less than eighty perc ent of the average monthly earnings of the claimant before disabili ty 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 el igible for COLA benefits it must be determined whether or not a c laimant’s combined disability b enefit entitlement is over eighty percent of her average monthly earnings. In this case, the parties sti pulated to several facts in an or der from March 2014. These facts included that appellant’s average pre-injury weekly wage was $221.65, and the compensation rate she recei ved was $221.65. This is one hundre d 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 w ith governing case law. In Atchis on v. May Department Stores Company, 225 Va. 525, 532, 304 S.E.2d 640, 644 (1983), t he Supreme Court of Virginia held that the Commission was co rrect in concluding that the cla imant therein was not entitled to prior or future supplements s o long as his social security paym ent and basic award claimant received equaled eighty percen t of the average monthly wage. S imilarly, in the recent Commission opinion in Davis, 2013 VA. Wrk. Comp. LEXIS 1658, th e Commission found that the plain language of Code § 65.2- 709 does not entitle a claima nt to receive a cost of living supplement if the claimant’s co mbined entitlement under the Vir ginia Workers’ Compensation Act and the Social Security Adm inistration is eighty percent or more of their pre-injury average weekly wage. The Commission fou nd that it could not interpret the statute to mean that claimants who were not receiving s ocial security disability ben efits were automatically entitled to COLA benefits even if their compensation rate was over eight y percent of their pre-injury average weekly wage. Id. at *4. Thus, the claimant in that ca se received a minimum- 5 - compensation rate of $172.74, whic h was more than eighty percen t of her pre-injury average weekly wage of $197.47, and as a re sult, she was not entitled t o 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 e ntitled to future supplements. Appellant relies on cases Clin chfield Coal Company v. Anderson 222 Va. 62, 67, 278 S.E.2d 817, 820 (1981), and Nakpodia v. M arriott Corporation an d Liberty Mutual Insurance Company, 60 O.I.C. 322 (1982), to suppor t her contention that s he 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 t otal compensation benefits to e xceed the weekly average, such a supplement can still be awarded if the total amount of compensati on before that is less than eighty percent of the average monthly wage. Thus, these princip les 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 r eceiving any money from the Soc ial 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 § 6 5.2-709 does not entitle a claimant to receive a cost of liv ing supplement if the claimant ’s combined entitlement under the Virginia Workers’ Compensation A ct and the Social Security Admi nistration is eighty percent or more of their pre-injury average weekly wage. Accordingly, we affirm the Commission’s decision. Affirmed.