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COST OF LIVING ADJUSTMENTS (COLA)
Claimant filed an application for cost of living supplements (COLA) within two years of receiving a full 500 weeks of compensation benefits. The commission did not err in awarding COLA. COLA supplements are not self-executing, see Jewell Ridge Coal Corp. v. Wright, 222 Va. 68, 71, 278 S.E.2d 820, 822 (1981), however, and to receive cost-of-living supplements, the claimant must file an application pursuant to Code Sec. 65.2-708. Code Sec. 65.2-708 states, "[n]o such review shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title . . . ." Claimant was clearly within this time frame when she requested cost-of-living supplements. Having determined that the applicable statute of limitations for receiving cost-of-living supplements is found in Code Sec. 65.2-708 and that claimant brought her claim within the limitations period, employer's plea of laches must fail and we do not address the issues of prejudice that it has argued on appeal. As has been stated, [n]o principle is better established, or more uniformly acted on in courts of equity, than that in respect to the statute of limitations- equity follows the law- that is to say, if a legal demand be asserted in equity, which at law is barred by statute, it is equally barred in a court of equity; and if not barred by statute at law, neither is it barred in equity. Rowe v. Bentley, 29 Gratt. 756-759. Coles v. Ballard, 78 Va. 139, 149 (1883) (emphasis added); see United States v. Mack, 295 U.S. 480, 489, 55 S. Ct. 813, 818, 79 L.Ed. 1559 (1935) ("Laches within the term of the statute of limitations is no defense at law.").
The commission also did not err in awarding COLA supplements retroactively. The Court in Commonwealth Dept. of Highways and Transp. v. Williams, 1 Va. App. 349, 338 S.E.2d 660 (1986), and the commission, in Rule 1.2(B), have specifically held that the limitation precluding the award of benefits for more than ninety days prior to the filing of a claim under Code Sec. 65.2-708 is not applicable to cost-of-living supplements. We recognized that the commission "has consistently ruled that cost-of-living benefits are not compensation within the meaning of Rule 13(B)." Williams, 1 Va. App. at 356, 338 S.E.2d at 665. The purpose of cost-of-living supplements is "to ensure, as much as possible, that the value of benefits paid under the Act does not diminish due to inflation." Id. at 354, 338 S.E.2d at 664. The Court noted that Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 161 S.E. 902 (1932) "was decided long before the Act provided for cost-of-living benefits" and that the concern there was that "if claimants could receive retroactive compensation awards employers might not be given the opportunity to furnish medical or rehabilitative aid at the time a changed condition came about." Id. at 356-57, 338 S.E.2d at 665. "Such concerns, however, are not relevant to cost-of-living entitlements because the determination whether a claimant is entitled to a cost-of-living supplement is not based on any actions which the employer may or may not have taken." Id. at 357, 338 S.E.2d at 665. Furthermore, within the context of change in condition applications, the commission, since Williams, has incorporated Rule 13(B) into Rule 1.2, and in section (B) of that Rule has specifically stated: "Additional compensation may not be awarded more than 90 days before the filing of the claim with the Commission. Requests for cost of living supplements are not subject to this limitation." Rule 1.2(B), Rules of the Virginia Workers' Compensation Commission (emphasis added). Accordingly, retroactive cost-of-living supplements are not limited by Rule 13(B) or the Supreme Court of Virginia's holding in Bristol Door. ARA Health Services and Old Republic Ins. v. Flax, Record No. 1660-99-1 (March 28, 2000). WP Version.