George Lee Seekford v. Hershey Tire Company ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
GEORGE LEE SEEKFORD
MEMORANDUM OPINION*
v. Record No. 0518-01-3 PER CURIAM
JULY 3, 2001
HERSHEY TIRE COMPANY, INC. AND
RELIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Terry L. Armentrout; Armentrout &
Armentrout, P.L.C., on brief), for appellant.
(Dale W. Webb; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
George Lee Seekford (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that the statute of limitations applicable to his
change-in-condition application was tolled pursuant to Code
§ 65.2-708(C). Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
Code § 65.2-708 required claimant to file his
change-in-condition application within twenty-four months from
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the last date for which he was paid compensation pursuant to an
award. It was undisputed that claimant was last paid
compensation pursuant to an award on June 15, 1997. It was also
undisputed that he did not file his change-in-condition
application until September 27, 1999, more than twenty-four
months from the last date for which he was paid compensation
pursuant to an award. Accordingly, unless the tolling provision
contained in Code § 65.2-708(C) applied to extend the
limitations period, claimant's September 27, 1999 application
was time-barred.
Code § 65.2-708(C) provides as follows:
All wages paid, for a period not
exceeding twenty-four consecutive months, to
an employee (i) who is physically unable to
return to his pre-injury work due to a
compensable injury and (ii) who is provided
work within his capacity at a wage equal to
or greater than his pre-injury wage, shall
be considered compensation.
"Code § 65.2-708(C) applies to a light duty or selective
employment situation. If an employee, despite restrictions, can
perform his or her pre-injury work for pre-injury wages, those
wages are not considered compensation under the tolling
provision." Nguyen v. Fairfax County Bd. of Supervisors, 26 Va.
App. 100, 103, 493 S.E.2d 391, 392 (1997) (footnote omitted).
On June 10, 1997, claimant's treating physician, Dr. Donald
P.K. Chan, released claimant to return to his pre-injury job,
without restrictions, as of June 16, 1997. Claimant returned to
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his pre-injury job and worked full duty from June 16, 1997 until
September 1, 1999, without missing any time from work. He did
not seek medical treatment during that time. "Though [his]
method of work was easier, [his] duties were identical, and no
evidence established that claimant sought or was provided light
duty work." Id. at 104, 493 S.E.2d at 392 (footnote omitted).
Thus, credible evidence established that claimant's post-injury
job was not light duty or selective employment for the purpose
of the tolling provision contained in Code § 65.2-708(C).
Moreover, based upon this credible evidence, the
commission, as fact finder, was entitled to give little
probative weight to Dr. Chan's statement in his March 1, 2000
responses to claimant's counsel's written questions that
claimant had been restricted and unable to engage in frequent
heavy lifting since his release to return to work in June 1997.
The record contained no explanation for Dr. Chan's change in his
opinion regarding claimant's ability to work beginning in June
1997. Furthermore, in response to written questions from
employer dated March 1, 2000, Dr. Chan agreed that claimant had
been released to return to work, full duty, effective June 16,
1997.
In addition, the fact that the employer retrofitted its
workplace with an airlift after claimant's accident and before
he returned to work on June 16, 1997, eliminating the need for
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claimant to lift tires, did not necessitate a finding that
claimant had been provided light duty or selective employment as
of June 16, 1997, at a wage equal to or greater than his
pre-injury wage. No evidence showed that employer retrofitted
to accommodate claimant's disability or that it changed the
essential duties of claimant's job. See id. at 103-04, 493
S.E.2d at 392.
For these reasons, we affirm the commission's decision
finding claimant's change-in-condition application untimely.
Affirmed.
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