Nelson v. Remor Restaurant, Inc., 831910

• Decision Date: 18 January 1985
• Docket Number: No. 831910,831910
• Citation: 228 Va. 607,324 S.E.2d 658
• Parties: Judith Anne NELSON v. REMOR RESTAURANT, INC., et al. Record
• Court: Virginia Supreme Court

Page 658

324 S.E.2d 658

228 Va. 607

Judith Anne NELSON v. REMOR RESTAURANT, INC., et al.

Record No. 831910.

Supreme Court of Virginia.

Jan. 18, 1985.

Peter M. Sweeny, Alexandria (Ashcraft & Gerel, Alexandria, on brief), for appellant.

Edward H. Grove, III, Fairfax (Brault, Geschickter, Palmer & Grove, Fairfax, on brief), for appellee.

Present: All the Justices.

PER CURIAM.

In this appeal from the Industrial Commission, we construe Code § 65.1-99.1 ^* to determine the proper method of calculating cost-of-living supplements.

Judith Anne Nelson was injured in an industrial accident on October 27, 1979, while employed by Remor Restaurant, Inc. Because her average weekly wage was $144.69, Nelson was awarded $96.46 per week temporary total disability compensation. Pursuant to § 65.1-99.1, this award was increased by cost-of-living supplements of 13.3% on October 1, 1980, 12.45% on October 1, 1981, and 8.8% on October 1, 1982.

Remor contends, and the Commission ruled, that the supplements should be computed as a percentage of the $96.46 base award. More specifically, the Commission opined that the initial cost-of-living supplement for the year immediately following the year in which the base award was made shall be computed as a percentage of the base rate (i.e., 13.3% X $96.46 = $12.83), making the allowance as supplemented $109.29. The Commission further ruled, however, that "each successive cost of living increase, if any, is also to be computed as a percentage of the basic compensation rate and added to the total of prior cost of living supplements." (Emphasis added.) Nelson challenges this ruling.

Nelson contends that § 65.1-99.1 requires that the cost-of-living supplements be "compounded." To illustrate, she claims that because the first cost-of-living supplement increased her benefit allowance to $109.29, the next cost-of-living increase (12.45%) is based upon the new compensation rate ($109.29) and not the original rate ($96.46). Therefore, she argues, her second increase would be 12.45% X $109.29 (which is $13.61), making the new weekly compensation $122.90 (i.e., $109.29 + $13.61).

To resolve this controversy, we focus upon that portion of § 65.1-99.1 which reads: "The amounts of supplementary payments provided for herein shall be determined as a percent of the benefit allowances supplemented hereby." (Emphasis added.) The term "benefit allowances supplemented hereby" means allowances which have had cost-of-living adjustments. Thus, the amount of the supplement shall be determined by multiplying the percentage of change by the benefit allowances as previously supplemented.

The original benefit allowance was $96.46. Both parties agree that the next...