Rosario Ruiz Dominguez v. Hardee's and Travelers Indemnity Company of America
0671164
| Va. Ct. App. | Mar 28, 2017Background
- Appellant Rosario Ruiz Dominguez suffered compensable head/neck injuries and a concussion at work on August 26, 2013.
- A March 14, 2014 stipulated order fixed her pre-injury average weekly wage at $221.65 and set her compensation rate at $221.65 (100% of pre-injury wage); medical benefits and periods of temporary disability were awarded.
- Appellant applied for cost-of-living adjustment (COLA) benefits on November 13, 2014; initial filing was rejected for missing SSA information, and a corrected application was filed December 11, 2014.
- The Commission issued a notice stating appellant was not entitled to COLA because her compensation equaled 100% (over 80%) of her average weekly wage.
- A deputy commissioner and, on review, the full Commission denied COLA under Va. Code § 65.2-709(A); appellant appealed to the Court of Appeals of Virginia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant is entitled to COLA under Va. Code § 65.2-709(A) | Dominguez argued she should receive COLA despite not receiving SSA benefits; relied on precedents permitting supplements that temporarily push total above average wage | Hardee’s/Travelers argued § 65.2-709(A) bars COLA where combined benefits (Workers’ Comp + SSA) are 80% or more of pre-injury earnings; here comp rate = 100% | Court held § 65.2-709(A) plainly disqualifies COLA when combined entitlement is 80% or more; affirmed Commission |
Key Cases Cited
- Atchison v. May Dept. Stores Co., 225 Va. 525, 304 S.E.2d 640 (Va. 1983) (Commission correctly denied supplements where combined award equaled eighty percent of average monthly wage)
- Clinchfield Coal Co. v. Anderson, 222 Va. 62, 278 S.E.2d 817 (Va. 1981) (a full COLA that causes total compensation to exceed average wage may still be awarded if total before COLA was less than eighty percent)
- Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 639 S.E.2d 174 (Va. 2007) (statutory interpretation: courts must give effect to unambiguous statutory language)