Present: All the Justices 

THELMA E. HAWKINS 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 971154 February 27, 1998 

COMMONWEALTH OF VIRGINIA/ 

SOUTHSIDE VIRGINIA TRAINING CENTER 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D’Alton, Jr., Judge 

 In this appeal, we construe Code § 65.2-313, a statute 

added in 1994 to the Virginia Workers’ Compensation Act, Code 

§§ 65.2-100 through –1310. We consider whether a circuit court, 

and not the Workers’ Compensation Commission, in ruling upon an 

employer’s petition for reimbursement of compensation benefits 

paid, has jurisdiction to decide the amount of an employee’s 

future benefits, when the employee has recovered from a thirdparty tortfeasor a sum greater than the amount of the past 

benefits. 

 On February 7, 1994, appellant Thelma E. Hawkins, the 

employee, sustained a compensable back injury in an industrial 

accident while working for the Commonwealth of Virginia at the 

Southside Virginia Training Center located in Dinwiddie County. 

She sustained a herniated cervical disk that damaged her spinal 

cord. Pursuant to a memorandum of agreement between the 

employee and the employer, the Commission entered an award under 

the Act in December 1994 for payment of temporary total 
disability benefits, the reasonable cost of medical care, and 

attorney’s fees. 

 In February 1995, the employee filed an action for damages 

in the court below against a number of physicians who “attended” 

or treated her following the accident. She alleged the 

defendants had been guilty of medical negligence for, among 

other things, failing to timely diagnose and appropriately treat 

the spinal cord injury that caused her present condition of 

quadriplegia. 

 In July 1996, while the action was pending, the employer 

filed the petition that generated the present dispute. 

Proceeding pursuant to Code § 65.2-310, the employer alleged 

that it had paid “indemnification benefits” to the plaintiffemployee pursuant to the Act and had “incurred expenses for 

medical bills arising out of the incident which is the subject 

of the [pending] action” totalling $229,150 on the date the 

petition was filed. The employer further alleged that it was 

entitled to recover the amount it had already paid the 

plaintiff-employee, including both compensation benefits and 

medical expenses, “should this case proceed to judgment for the 

plaintiff or settlement.” 

 The employer asked the court to enter an order requiring 

the parties to “ascertain the amount of compensation paid and 

expenses for medical, surgical and hospital attention and 

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supplies incurred by the employer” under the Act. The employer 

also asked the court to require “the judgment debtor to pay such 

compensation and expenses,” less the employer’s “share of 

expenses and attorney’s fees, so ascertained by the court, out 

of the amount of the judgment” or settlement, as provided in 

§ 65.2-310. 

 The malpractice action was settled for $850,000. In the 

August 1996 order dismissing the action, the court retained 

“jurisdiction over the issue of the Employer’s lien herein 

asserted.” Reciting that the employee and the Commonwealthemployer “dispute the validity of the asserted lien and the 

amount thereof," the court ordered the sum of $230,000 withheld 

from the settlement proceeds “until such time as the issues 

relating to the amount, and extent, if any, of any lien claimed 

by” the employer were resolved by the court. 

 Upon consideration of deposition testimony, documentary 

evidence, and argument of counsel, the trial court entered the 

March 1997 order from which we awarded the employee this appeal. 

The order provides: “[T]he Court finds that the Commonwealth’s 

lien amounts to $127,948.00 for medical expenses and the 

Commonwealth is not entitled to any lien for indemnity paid 

through July 6, 1996. The Court finds that the Commonwealth’s 

proportionate share of attorney’s fees and costs is 31.7%.” 

The order further provides that the employee reimburse the 

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Commonwealth the foregoing sum less $40,559.52 for the 

Commonwealth’s proportionate share of attorney’s fees and costs 

in the third-party action, for a net payment of $87,388.48. On 

appeal, there is no dispute over these provisions. 

 The following sentence of the order is the subject of this 

controversy: “The Court further finds that the Commonwealth is 

entitled to a credit equivalent to 68.3% of (1) indemnity 

benefits paid after August 27, 1996, and (2) a credit equivalent 

to 68.3% of all medical expenses accrued after July 6, 1996, 

until such time as these indemnity benefits and medical expenses 

total $493,162.00.” 

 On appeal, the employee presents the following questions. 

First, “Where the employer’s petition sought a determination 

under § 65.2-310 of the amount of its lien based upon 

$229,150.00 in payments through July 6, 1996, did the trial 

court have jurisdiction to decide the worker’s continuing 

compensation benefits arising after July 6, 1996 under” the Act? 

 Second, “Assuming the trial court had jurisdiction to 

decide the claimant’s rights after July 6, 1996, did the 

Commonwealth bear its burden of proving the extent to which 

third-party medical negligence increased its indemnity 

liability?” 

4
 Resolution of the first question is dispositive of this 

appeal. Therefore, we shall not address further the second 

question. 

 Several statutes within the Act are relevant here. Code 

§ 65.2-700 deals with the jurisdiction of the Workers’ 

Compensation Commission and specifies: 

 “All questions arising under this title, if not 

settled by agreements of the parties interested 

therein with the approval of the Commission, shall be 

determined by the Commission, except as otherwise 

herein provided.” 

Code § 65.2-310, under which the Commonwealth proceeded in 

this case, furnishes protection to an employer when an employee 

sues third parties and provides as pertinent: 

“In any action by an employee . . . against any person 

other than the employer, the court shall, on petition 

. . . of the employer at any time prior to verdict, 

ascertain the amount of compensation paid and expenses 

for medical, surgical and hospital attention and 

supplies . . . incurred by the employer under the 

provisions of this title and deduct therefrom a 

proportionate share of such amounts as are paid by the 

plaintiff for reasonable expenses and attorney’s fees 

as provided in § 65.2-311; and, in event of judgment 

against such person other than the employer, the court 

shall in its order require that the judgment debtor 

pay such compensation and expenses of the employer, 

less said share of expenses and attorney’s fees, so 

ascertained by the court out of the amount of the 

judgment, so far as sufficient, and the balance, if 

any, to the judgment creditor.” 

 

 Code § 65.2-311 apportions attorney’s fees and expenses 

between the employer and employee in an action under § 65.2-310 

and provides as pertinent: 

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 “In any action, or claim for damages, by an 

employee . . . against any person other than the 

employer, . . . if a recovery is effected, either by 

judgment or voluntary settlement, the reasonable 

expenses and reasonable attorney’s fees of such 

claimant[] shall be apportioned pro rata between the 

employer and the employee . . . as their respective 

interests may appear.” 

 In 1994, the General Assembly adopted Code § 65.2-313, the 

statute that is at the center of this dispute. Acts 1994, ch. 

586. As pertinent, the statute provides: 

 “In any action or claim for damages by an employee 

. . . against any person other than the employer under 

§ 65.2-310, . . . if a recovery is effected, the 

employer shall pay to the employee a percentage of 

each further entitlement as it is submitted equal to 

the ratio the total attorney's fees and costs bear to 

the total third-party recovery until such time as the 

accrued post-recovery entitlement equals that sum 

which is the difference between the gross recovery and 

the employer’s compensation lien. In ordering 

payments under this section, the Commission shall take 

into account any apportionment made pursuant to 

§ 65.2-311. 

 For the purposes of this section, ‘entitlement’ 

means compensation and expenses for medical, surgical 

and hospital attention and funeral expenses to which 

the claimant is entitled under the provisions of this 

title, which entitlements are related to the injury 

for which the third-party recovery was effected.” 

 On appeal, the Attorney General, urging affirmance, refers 

to § 65.2-313 and notes it applies to “any action” under § 65.2-

310. Thus, he argues, because the matter was pending in the 

circuit court upon the employer’s petition, “there can be no 

question that this matter arose in an action under § 65.2-310,” 

and that the circuit court had jurisdiction. 

6
 The Attorney General insists that “the plain language” of 

§§ 65.2-310 and –313 does not limit a circuit court’s authority 

“to considering only those events occurring on or before the 

date of the petition.” He points out that § 65.2-310 states 

“the court shall” ascertain the amount of “compensation paid” 

and “expenses . . . incurred.” He says this language shows “a 

circuit court’s jurisdiction is continuing in nature, 

encompassing all compensation paid and expenses incurred” under 

the Act. 

 Continuing, the Attorney General contends the second 

sentence of § 65.2-313 additionally “provides direction to the 

Commission, requiring that when the Commission is ordering 

payments under § 65.2-313, it shall follow the apportionment 

previously made pursuant to § 65.2-311.” He maintains that if 

the General Assembly meant the Commission to have exclusive 

jurisdiction “for such determinations,” the first sentence of 

§ 65.2-313 “would have explicitly stated ‘the Commission shall,’ 

as was done in the second sentence.” 

 We do not agree with the Attorney General. Before we 

proceed to construe § 65.2-313, we shall review the state of the 

law, relevant to the issue presented, at the time of the 

statute’s 1994 enactment. 

 In Circuit City Stores, Inc. v. Bower, 243 Va. 183, 413 

S.E.2d 55 (1992), this Court upheld a trial court’s 

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apportionment of attorney’s fees and expenses under the Act with 

respect to a death claim when the employee had recovered from 

third-party tortfeasors. The Court stated that former Code 

§ 65.1-42 (now § 65.2-310) “requires the trial court to consider 

only amounts actually paid by the employer in fixing the amount 

of the employer’s lien,” but that the statute “does not restrict 

the trial court’s consideration to amounts actually paid in 

apportioning the attorney’s fees.” Id. at 188, 413 S.E.2d at 

57. Thus, the Court approved apportionment of attorney’s fees 

and expenses based on the entire amount of a fixed 500-week 

award. 

 In Bohle v. Henrico County Sch. Bd., 246 Va. 30, 431 S.E.2d 

36 (1993), the Court considered the method to be used for 

apportioning attorney’s fees and expenses under the Act when 

payment of compensation benefits to an injured employee had been 

suspended following a settlement between the employee and a 

third-party tortfeasor. The Court adopted the approach used by 

the Commission, that is, “once the employee’s net third-party 

recovery is determined, the employee will be entitled to payment 

of no further compensation or medical expenses subsequent to the 

date fixed in the suspension order until the employee can 

establish that further benefit entitlements exceed the net 

amount received by the employee from the third-party recovery.” 

Id. at 35, 431 S.E.2d at 39. We said, however, that “the 

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Commission has not foreclosed the payment of attorney’s fees in 

increments as medical expenses and compensation benefits accrue 

during the suspension period.” Id.

 Against this background and addressing the interests of 

employees and employers following a third-party recovery, the 

1994 General Assembly acted by adopting legislation codified as 

§ 65.2-313. 

 The Act (introduced as House Bill 1279) is not a model of 

clarity. For an article describing the drafting of House Bill 

1279, see Louis D. Snesil, Prorating the Costs of a Third-Party 

Recovery, The Journal of the Virginia Trial Lawyers Association, 

Summer 1994, at 26, 28 (“The final version of this statute was 

hammered out hurriedly by representatives of the compensation 

carriers and VTLA during a subcommittee meeting of the Senate 

Commerce and Labor Committee”). 

Thus, in construing the act we shall look first to its 

title. A title may be read in an attempt to ascertain an act’s 

purpose, though it is no part of the act itself. Miller v. 

Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942). The 

title reads: “An Act to amend the Code of Virginia by adding in 

Chapter 3 of Title 65.2 a section numbered 65.2-313, relating to 

workers’ compensation; suspension of benefits following recovery 

from third party.” Acts 1994, ch. 586. 

9
 Considering the title of the act together with the text of 

the statute, we conclude that § 65.2-313 contemplates a 

situation where there has been a suspension of benefits, as in 

Bohle, after the employee has recovered from a third-party 

tortfeasor a sum larger than the total of the past payments of 

benefits. We cannot determine from this record whether benefits 

have been suspended in this case. Nevertheless, that 

circumstance does not materially impact the jurisdictional 

question. 

 Turning to the statute, we note that nowhere is the word 

“court” used. Nonetheless, the legislature clearly intended for 

a circuit court to have jurisdiction because the opening clause 

refers to an “action” under § 65.2-310, which does authorize 

“the court” to proceed. The crucial issue then becomes: How 

far does the court’s jurisdiction extend under § 65.2-313? 

 We hold that the circuit court’s jurisdiction extends only 

to the point where it determines the amount of compensation 

benefits, as opposed to attorney’s fees and costs, actually paid 

by the employer. This is confirmed by use of the past tense in 

§ 65.2-310, “incurred by the employer,” and by this Court’s 

statement in Bower that the predecessor to § 65.2-310 “requires 

the trial court to consider only amounts actually paid by the 

employer in fixing the amount of the employer’s lien.” 243 Va. 

at 188, 413 S.E.2d at 57. 

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We further hold that § 65.2-313 permits the circuit court 

to apportion attorney’s fees and costs based on the amount of 

benefits paid in the past, and benefits to be paid in the future 

until, in the language of § 65.2-313, “the accrued post-recovery 

entitlement equals that sum which is the difference between the 

gross recovery and the employer’s compensation lien.” This is 

consistent with the Court’s statement in Bower that the 

precedessor to § 65.2-310 “does not restrict the trial court’s 

consideration to amounts actually paid in apportioning the 

attorney’s fees.” 243 Va. at 188, 413 S.E.2d at 57. 

This construction comports with the structure of § 65.2-

313, which, in the first sentence, sets forth the formula for 

computing the amount the employer “shall pay,” and refers, in 

the second sentence, to the Commission “ordering payments” – the 

court sets the apportionment percentage and the Commission 

orders the amount of the future payments taking “into account” 

the apportionment percentage. 

Stated differently, and incorporating the statutory 

language, the employer is liable for payment “of each further 

entitlement as it is submitted” based upon a percentage “equal 

to the ratio the total attorney’s fees and costs bear to the 

total third-party recovery” until the time when “the accrued 

post-recovery entitlement equals that sum which is the 

difference between the gross recovery and the employer’s 

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compensation lien.” When the circuit court has fixed that 

percentage and has determined the amount of the lien for payment 

of past benefits, the Commission enters the picture and orders 

the appropriate payments to be made, taking into account the 

apportionment percentage fixed by the court. See Eghbal v. 

Boston Coach Corp., 23 Va. App. 634, 638-39, 478 S.E.2d 732, 

734-35 (1996) (summary of Commission’s manner of calculation of 

offset due employer under § 65.2-313). 

Our conclusion is buttressed by the provisions of Code 

§ 65.2-700 granting jurisdiction to the Commission over all 

questions arising under the Act, “except as otherwise herein 

provided.” We do not believe § 65.2-313 plainly provides 

“otherwise” as to future payments. 

Turning to the order that is the subject of this appeal, we 

shall apply the foregoing analysis. In the order, the trial 

court fixed the amount of the Commonwealth’s lien for medical 

expenses, determined the Commonwealth was not entitled to any 

lien for past compensation, and set the proportionate share of 

attorney’s fees and costs at a fixed percentage. The trial 

court acted within its jurisdiction in making these rulings, and 

they are not contested on appeal. 

However, the court improperly undertook to apply the 

apportionment percentage to compensation benefits to be paid and 

medical expenses to be incurred in the future “until such time 

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as these indemnity benefits and medical expenses total 

$493,162.00.” (This figure apparently equals a sum that is the 

difference between the gross third-party recovery and the 

employer’s lien on the amount of the recovery.) This was beyond 

the court’s jurisdiction and was error, for the reasons that we 

have articulated. 

Accordingly, the order from which this appeal is taken will 

be affirmed, in part, and reversed, in part. We will modify the 

order by striking the contested third sentence of the second 

paragraph of the order, and will enter final judgment upon the 

order as modified. 

 Affirmed in part, 

 reversed in part, 

modified, and final judgment.

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