Dennis K. Pennington v Superior Iron Works, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judge Bray, Senior Judges Duff and Overton
Argued by teleconference
DENNIS K. PENNINGTON
OPINION BY
v. 	Record No. 1680-98-4 	JUDGE NELSON T. OVERTON
AUGUST 17, 1999
SUPERIOR IRON WORKS AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Nikolas E. Parthemos (Parthemos & Bryant,
P.C., on brief), for appellant.
J. David Griffin (Fowler, Griffin, Coyne &
Coyne, P.C., on brief), for appellees.
Dennis K. Pennington ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying his claim
for an award of permanent partial disability ("PPD") benefits.
Claimant contends the commission (1) abused its discretion in
denying him an award of PPD benefits beyond the 500-week
limitation, when the parties had agreed that such benefits were
payable; and (2) erred in finding that he was not entitled to an
award of PPD benefits after he received 500 weeks of temporary
disability benefits, even though his accident occurred before the
1991 amendments to the Workers' Compensation Act ("the Act"). 	For
the following reasons, we affirm the commission's decision.
Claimant sustained a compensable injury on April 25, 1986.
Superior Iron Works and its insurer ("employer") accepted the

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claim as compensable and paid claimant temporary total
disability ("TTD") benefits for 500 weeks.
On December 19, 1996, claimant filed an application seeking
an award of PPD benefits based upon a ten percent permanent loss
of use to his right and left legs.
Employer's insurance representative acknowledged in a June
3, 1997 letter that a hearing was not required because employer
had agreed to pay claimant PPD benefits. 	The carrier
represented to the commission that it had overpaid claimant
$9,333.70 in TTD benefits and requested that the overpayment be
deducted from claimant's PPD benefits.
Claimant's counsel appeared for the hearing on June 5,
1997, and gave the deputy commissioner a copy of the June 3,
1997 letter.
In an October 7, 1997 opinion, the deputy commissioner held
that the insurer, who had failed to submit copies of the checks
showing payment of TTD to claimant, had failed to prove an
overpayment of TTD benefits. 	However, the deputy commissioner
denied the claimant's claim for PPD benefits based upon the
commission's holding in Potter v. Crossroads Moving and Storage,
Inc., 75 O.W.C. 337 (1996) (settled pending appeal to this
Court).
The full commission affirmed the deputy commissioner's
decision, finding that it had consistently held that the 1991
amendments to the Act providing for payment of PPD benefits in

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excess of the 500-week limit could not be applied retroactively
to a claimant's claim where the accident occurred before the
effective date of the amendments. 	In addition, the commission
found that the deputy commissioner did not abuse his discretion
in ruling upon this issue.
I.
The commission did not abuse its discretion in addressing
the issue of whether the 1991 amendments to the Act could be
applied retroactively. 	The parties did not submit formal
stipulations, and the employer did not appear at the hearing.
Although the parties apparently had agreed that claimant was
entitled to PPD benefits, the commission was not required to
ignore established precedent and award such benefits in
contravention of the statute. 	In fact, claimant brought this
issue to the forefront when he cited to Cross v. Newport News
Shipbuilding and Dry Dock Co., 21 Va. App. 530, 465 S.E.2d 598
(1996), in his December 19, 1996 letter in which he submitted
his claim for PPD benefits in excess of the 500-week limit.
Based upon this record, we find no abuse of discretion by the
commission.
II.
On appeal, claimant relies solely upon the Cross decision
in support of his argument. 	As the commission found, that
reliance is misplaced. 	Cross dealt with whether payments made
under the Longshore and Harbor Workers' Compensation Act

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("LHWCA") could be credited against an employer's liability for
payments under the Virginia Act. 	The issue of whether the 1991
statutory change could be applied retroactively to an injury
that occurred before the effective date of that change was not
presented by the parties in Cross nor was it addressed by this
Court, although Cross's accident occurred before the effective
date of the 1991 statutory change. 	As the commission correctly
pointed out,
[t]he issue before us, whether the 1991
Amendments to the Workers' Compensation Act
are retroactive, apparently was not raised
by either party nor was this issue addressed
by the Court of Appeals. 	Indeed, the Cross
decision involved the interpretation of
§ 65.2-503(F)1 as it existed after the 1991
Amendments. 	The Cross Court did not cite
the statutory language as it existed before
1991, even though Cross's injury occurred in
1984.
In general, "[t]he right to compensation in cases of
accidental injury is governed by the law in effect at the time
of the injury." 	Island Creek Coal Co. v. Breeding, 6 Va. App.
1, 10, 365 S.E.2d 782, 787 (1988).
"Retrospective laws are not favored, and a
statute is always to be construed as
operating prospectively, unless a contrary
intent is manifest; but the legislature may,
in its discretion, pass retrospective and
curative laws provided they do not partake
of the nature of what are technically called
ex post facto laws, and do not impair the
obligation of contracts, or disturb vested
rights; and provided, further, that they are
of such nature as the legislature might have
passed in the first instance to act
prospectively."

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Cohen v. Fairfax Hosp. Ass'n, 12 Va. App. 702, 705, 407 S.E.2d
329, 330-31 (1991) (citation omitted). 	"[S]ubstantive rights
are addressed in statutes which created duties, rights, or
obligations. 	In contrast, . . . procedural or remedial statutes
merely set forth the methods of obtaining redress or enforcement
of rights." 	Id. at 705, 407 S.E.2d at 331.
The 1991 amendment recodifying former Code § 65.1-56 as
Code § 65.2-503 provided that "[c]ompensation awarded pursuant
to this section shall be in addition to all other compensation
and shall be payable after payments for temporary total
incapacity pursuant to § 65.2-500." 	Code § 65.1-56, in effect
at the time of claimant's accident, provided that PPD benefits
"shall not extend the 500-week limit contained in § 65.1-54 or
§ 65.1-55." 	In order for the 1991 statutory change "to apply
retroactively, . . . it must be procedural in nature and affect
remedy only, disturbing no substantive or vested rights. 	The
statute must also contain an expression of retrospective
legislative intent." 	Cohen, 12 Va. App. at 705, 407 S.E.2d at
331 (citations omitted).
Here, the 1991 statutory change was not merely procedural
in nature. 	It affected substantive and vested rights. 	It
obligated an employer to pay PPD benefits in excess of the
500-week limit, an obligation employer did not have pursuant to
former Code § 65.1-56. 	In addition, it provided a claimant with
a new right. 	Finally, the statutory change contained no

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expression of a retrospective legislative intent. 	Because the
amendment constituted a substantive change in the law, the
commission did not err in refusing to apply it retroactively to
claimant's claim.
Based upon former Code § 65.1-56 in effect at the time of
claimant's accident, he was not entitled to PPD benefits in
excess of the 500-week limit. 	The commission correctly applied
former Code § 65.1-56 to the facts of this case in denying
claimant's claim for PPD benefits.
For these reasons, we affirm the commission's decision.
Affirmed.