Opinion
44135 Record No. 801497.
June 12, 1981
Present: All the Justices.
The limit for Workmen's Compensation for total incapacity under Code Sec. 65.1-54 does not also limit a cost of living supplemental award under Code Sec. 65.1-99.1; the cost of living provision of Code Sec. 65.1-99.1 is cognizable only under the change of condition provisions of Code Sections 65.1-8, -99 and is not self-executing; alleged error not challenged at Commission hearing not heard on appeal under Rule 5:21; error to assess attorney's fees against employer under Code Sec. 65.1-101 when defense is reasonable.
(1) Workmen's Compensation — Statutory Construction — Compensation for Total Incapacity (Code Sec. 65.1-54) — Cost of Living Supplements for Total Incapacity (Code Sec. 65.1-99.1) — No Maximum Limit Established by Code Sec. 65.1-54 for Supplements under Code Sec. 65.1-99.1.
(2) Workmen's Compensation — Statutory Construction — Cost of Living Supplements for Total Incapacity (Code Sec. 65.1-99.1) — Change of Condition Provisions (Code Sections 65.1-8, -99) — Cost of Living Provision under Code Sec. 65.1-99.1 Not Self-Executing and Cognizable only under Code Sections 65.1-8, -99.
(3) Pleading and Practice — Rules of Court (Rule 5:21) — Point Not Noticed on Appeal Where Party Fails to Assign Error to Commission Ruling.
(4) Workmen's Compensation — Attorneys — Statutory Construction — Assessment of Attorney's Fees against Employer (Code Sec. 65.1-101)-Granting an Appeal With Respect to Both Grounds of Employer's Defense Evidences Reasonableness of Defense — Error to Assess Attorney's Fees.
The claimant, an employee of Jewell Ridge Coal Corporation, was injured in an industrial accident. He was awarded compensation for total incapacity in the amount of $175 per week, which he received until he returned to work at his pre-injury wage. When notified that claimant had returned to work, the Industrial Commission advised Jewell Ridge that claimant was entitled to a cost of living supplement of $1,062.90 for the period he received compensation benefits. Jewell Ridge failed to pay the cost of living increase. The Commission awarded claimant the full amount of his cost of living supplement, and assessed against Jewell Ridge a fee for claimant's counsel. Jewell Ridge appeals.
1. Code Sec. 65.1-54, which states that the income benefits for total incapacity shall not exceed the average weekly wage of the Commonwealth, imposes no maximum limit on the cost of living supplements to be paid under Code Sec. 65.1-99.1. The availability of cost of living supplements in Code Sec. 65.1-99.1 is based upon an increase in the consumer price index rather than a change in the average weekly wage of the Commonwealth described in Code Sec. 65.1-54. Clinchfield Coal Co. v. Anderson, 222 Va. 62, 278 S.E.2d 820 (1981) followed.
2. The cost of living provision of Code Sec. 65.1-99.1 is not self-executing. Lambert v. Island Creek Coal Company, 57 O.I.C. 217 (1977), distinguished.
3. When the Commission rules that a claimant is eligible for cost of living supplements, and the employer fails to assign error to this ruling, the Court on appeal will not notice a complaint that claimant failed to establish eligibility. Rule 5:21.
4. Under Code Sec. 65.1-101, the Commission is authorized to assess an attorney's fee against any employer the Commission determines has brought, prosecuted, or defended a proceeding without reasonable grounds. Granting an appeal with respect to both grounds of defense is sufficient evidence of the reasonableness of the defense, and attorney's fees should not be against the employer. Sun Oil Co. v. Lawrence, 213 Va. 596, 194 S.E.2d 687 (1973), followed.
Appeal from an award of the Industrial Commission of Virginia.
Affirmed in part and reversed in part.
Michael F. Blair (Elizabeth S. Woodruff; Penn, Stuart, Eskridge Jones, on brief), for appellant.
Gerald F. Sharp for appellee.
This workmen's compensation case is a companion to another decided today, Clinchfield Coal Co. v. Anderson, 222 Va. 62, 278 S.E.2d 817 (1981). Each case involves a claim for a cost-of-living supplement under Sec. 65.1-99.1 of the Virginia Workmen's Compensation Act.
The claimant here, Joe D. Wright, an employee of Jewell Ridge Coal Corporation, was injured in an industrial accident on June 21, 1978. Pursuant to agreement, he was awarded compensation for total incapacity in the amount of $175 per week. He received compensation in this weekly amount until January 21, 1980, when he returned to work at his pre-injury wage.
Upon receipt of notification that Wright had returned to work, the Industrial Commission addressed a letter to Jewell Ridge, with a copy to Wright, advising that Wright was entitled to a cost-of-living supplement in the sum of $1,062.90 for the period he received compensation benefits. One month later, on March 19, 1980, Wright sent the Commission a letter stating that Jewell Ridge had failed to pay the cost-of-living increase and asking that the Commission advise him "what is happening in regard to this matter." The Commission then scheduled a hearing and, ultimately, awarded Wright the full amount of his cost-of-living supplement. In addition, the Commission assessed against Jewell Ridge a fee for Wright's counsel.
Jewell Ridge first contends the Commission erred in allowing Wright a full cost-of-living supplement under Sec. 65.1-99.1 of the Workmen's Compensation Act when the allowance provided Wright total compensation benefits in excess of a maximum fixed by Sec. 65.1-54 in terms of the average weekly wage of the Commonwealth. This precise issue, presented in Clinchfield Coal Co. v. Anderson, was decided favorably to the employee. Anderson controls here, so we decide the present issue favorably to Wright.
Jewell Ridge next contends the Commission erred in ruling that the cost-of-living provision of Sec. 65.1-99.1 is self-executing and requires no application from the claimant or further award of the Commission. We agree with Jewell Ridge.
Clearly, the cost-of-living provision is not self-executing. Indeed, in one of its own decisions, Lambert v. Island Creek Coal Company, 57 O.I.C. 217 (1977), the Commission held that a claim for a cost-of-living supplement was cognizable only under the change-of-condition sections of the Act. Va. Code Sections 65.1-8, — 99. Under Lambert, these sections require an application and a showing of eligibility by the claimant and an award by the Commission.
We hold, however, that Jewell Ridge is not entitled to reversal for Wright's alleged failure to file an application. During oral argument, Jewell Ridge conceded Wright's March 19, 1980 letter to the Commission constituted sufficient application for a cost-of-living supplement.
In this same connection, Jewell Ridge complains that Wright did not establish "his eligibility to a cost of living supplement." The Commission ruled, however, that there was "no question as to [Wright's] eligibility for cost-of-living supplements." Jewell Ridge failed to assign error to this ruling, and we will not notice the point now. Rule 5:21.
Finally, Jewell Ridge contends it should not have been held liable for Wright's counsel fee. We agree with Jewell Ridge.
Under Sec. 65.1-101 of the Workmen's Compensation Act, the Commission is authorized to assess an attorney's fee against any employer the Commission determines has brought, prosecuted, or defended a proceeding "without reasonable grounds." The Commission found Jewell Ridge had defended Wright's claim unjustifiably. This finding was based upon the Commission's previous holding in Clinchfield Coal Co. v. Anderson and the Commission's ruling in the present case that the cost-of-living provision was self-executing. The Commission observed that, at the very least, Jewell Ridge should have paid the part of the cost-of-living increase "that was not being contested."
Although it contested only part of Wright's claim on the ground such part exceeded the statutory maximum, Jewell Ridge contested the whole claim on the ground the cost-of-living provision was not self-executing. In any event, we granted Jewell Ridge an appeal with respect to both grounds of defense. This alone evidences the reasonableness of the defense. Sun Oil Co. v. Lawrence, 213 Va. 596, 598, 194 S.E.2d 687, 688 (1973).
For the reasons assigned, the award to Wright of the full cost-of-living supplement will be affirmed, and the award of attorney's fees against Jewell Ridge will be reversed.
Affirmed in part and reversed in part.