Daniel W. Phelps v. Safeway Stores, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
DANIEL W. PHELPS
MEMORANDUM OPINION *
v. Record No. 1246-98-4 BY JUDGE WILLIAM H. HODGES
FEBRUARY 16, 1999
SAFEWAY STORES, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Metin A. Cay (Swiger & Cay, on brief), for
appellant.
C. Ervin Reid (Wright, Robinson, Osthimer &
Tatum, on brief), for appellee.
Daniel W. Phelps ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying his
application for temporary total disability benefits. Claimant
contends that the commission erred in finding that his
change-in-condition application was time barred by Code
§ 65.2-708(A) because he failed to meet the tolling requirements
of Code § 65.2-708(C). Pursuant to Rule 5A:21(b), Safeway
Stores, Inc. ("employer") raises the additional question of
whether the commission erred in finding that the one-year
limitation period found in Code § 65.2-501 did not bar claimant's
change-in-condition application filed nearly three years after
receiving permanent partial disability benefits. Finding no
error, we affirm the commission's decision.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The facts are not in dispute. On November 14, 1988,
claimant sustained a compensable injury by accident while working
for employer. Employer accepted the claim and paid claimant
temporary total disability benefits from December 6 through
December 18, 1988, and from December 27, 1988 through November 4,
1990, pursuant to the commission's awards. Employer also paid
claimant temporary partial disability benefits pursuant to an
award from November 5, 1990 through April 7, 1991. The
commission terminated that award after claimant returned to
light-duty work on April 7, 1991, at a wage equal to or greater
than his pre-injury wage.
On September 15, 1993, claimant filed an application for an
award of permanent partial disability benefits. The commission
awarded those benefits and claimant received permanent partial
disability benefits from February 14, 1994 through June 5, 1994.
Beginning on April 7, 1991, claimant worked for employer in
a light-duty position at a wage equal to or greater than his
pre-injury wage. Claimant remained in that position until his
treating physician removed him from work on April 18, 1997. On
May 12, 1997, claimant returned to his light-duty position and
did not sustain any wage loss thereafter.
On May 15, 1997, claimant filed an application alleging a
change-in-condition. Claimant sought temporary total disability
benefits for the period from April 18, 1997 through May 12, 1997,
alleging that his disability had deteriorated from temporary
partial incapacity to temporary total incapacity.
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The commission ruled that the claim, which was governed by
the two-year statute of limitations found in Code § 65.2-708, was
not timely filed. In rejecting claimant's argument that Code
§ 65.2-708(C) tolled the two-year statute of limitations for
twenty-four months beginning on June 5, 1994, the commission
found as follows:
The General Assembly enacted this Code
section to provide an extended limitation
period when an injured worker returns to work
at a wage rate equal to or greater than
pre-injury wage and when disability renders
the injured worker unable to return to
pre-injury work. Under this section, the
wages paid to the claimant for twenty-four
consecutive months after his return to
light-duty at his pre-injury wage are
considered compensation.
* * * * * * *
By its terms, § 65.2-708(C) applies to
the twenty-four consecutive months after a
claimant returns to light-duty work without a
wage loss. Here, the twenty-four months
began on April 7, 1991, and ended on April 7,
1993. The claimant received the benefit of
this section when he was awarded permanent
partial benefits beginning February 14, 1994.
Without the extension in § 65.2-708(C), that
claim would have been time-barred. 1
The claimant argues that the twenty-four
month extension began on June 5, 1994, the
last day for which he was paid compensation
under his award for permanent partial
incapacity. This argument is contrary to the
1
The commission erred when it concluded that claimant's
September 15, 1993 claim for permanent partial disability
benefits would have been time-barred without the application of
the tolling provision found in Code § 65.2-708(C). However,
because that conclusion was dicta and was not relevant to the
issue before the commission, we find that the error has no
bearing upon the issue before this Court.
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language in § 65.2-708(C) which triggers the
start of the twenty-four month extension to
the date the claimant is provided light duty
work.
The commission's construction of the Act is entitled to
great weight on appeal. See City of Waynesboro v. Harter, 1 Va.
App. 265, 269, 337 S.E.2d 901, 903 (1985).
"The right to compensation under the
workmen's compensation law is granted by
statute, and in giving the right the
legislature had full power to prescribe the
time and manner of its exercise. When the
legislature has spoken plainly it is not the
function of the courts to change or amend its
enactments under the guise of construing
them. The province of construction lies
wholly within the domain of ambiguity, and
that which is plain needs no interpretation."
Dan River, Inc. v. Adkins, 3 Va. App. 320, 328, 349 S.E.2d 667,
671 (1986) (quoting Winston v. City of Richmond, 196 Va. 403,
407-08, 83 S.E.2d 728, 731 (1954)).
Code § 65.2-708, which governs the filing of
change-in-condition applications, requires that the application
be filed within twenty-four months from the last date for which
compensation was paid pursuant to an award. Code § 65.2-708(C)
provides the following tolling provision:
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.
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This tolling provision was designed
to prevent employers from lulling partially
disabled workers into a false sense of
security during this two-year period by
providing employees light duty work at their
pre-injury wage for two years and then
terminating the employee without liability
for future disability benefits.
Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993)
(construing former Code § 65.1-55.1, now Code § 65.2-708(C)).
Thus, a partially disabled employee who meets the conditions
outlined in parts (i) and (ii) "is afforded an additional
twenty-four months before the statute of limitations . . . begins
to run." Greene v. Gwaltney of Smithfield, Inc., 13 Va. App.
486, 492, 413 S.E.2d 650, 654 (1992) (construing former Code
§§ 65.1-55.1 and 65.1-99, now Code § 65.2-708(A) and (C)).
Claimant did not file his May 15, 1997 change-in-condition
application within twenty-four months from June 5, 1994, the last
date for which compensation was paid pursuant to an award.
Therefore, unless the tolling provision applied to extend the
limitations period beyond May 15, 1997, claimant's application
was untimely.
Code § 65.2-708(C) delayed the start of the two-year
limitations period contained in Code § 65.2-708(A) while employer
provided claimant light-duty work and paid him equal to or more
than his pre-injury wage for a period not exceeding twenty-four
consecutive months. The plain and unambiguous language of this
code section tolled the limitations period from April 7, 1991,
the date claimant returned to light-duty work provided by
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employer at a wage equal to or greater than his pre-injury wage,
through April 7, 1993, twenty-four consecutive months later.
Thus, the tolling period expired before claimant filed his May
15, 1997 change-in-condition application.
We find no support in the plain language of Code
§ 65.2-708(C) or the case law for claimant's assertion that the
commission erred in refusing to find that the twenty-four month
tolling period began to run on June 5, 1994, the date claimant
was last paid permanent partial disability benefits.
Additionally, the policy behind Code § 65.2-708(C) does not
support claimant's argument. Claimant presented no evidence that
he was lulled into a false sense of security by employer, and
employer did not attempt to terminate claimant. Rather, employer
has provided claimant with light-duty employment at a wage equal
to or greater than claimant's pre-injury wage for a period in
excess of six years.
We hold that the commission did not err in finding that
claimant's May 15, 1997 change-in-condition application was
time-barred pursuant to Code § 65.2-708(A) and that his claim was
not saved by the tolling provision provided in Code
§ 65.2-708(C). Because our holding on this issue is dispositive
of this appeal, we need not address the additional question
presented by employer.
For these reasons, we affirm the commission's decision.
Affirmed.
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