Janie E. Holman v. Southwestern Virginia Mental, et

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JANIE E. HOLMAN
MEMORANDUM OPINION*
v. Record No. 1516-99-3 PER CURIAM
NOVEMBER 9, 1999
SOUTHWESTERN VIRGINIA MENTAL HEALTH
INSTITUTE/COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lawrence L. Moise III; Vinyard & Moise, on
brief), for appellant.
(Mark L. Earley, Attorney General; Gregory E.
Lucyk, Senior Assistant Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General; James W. Osborne, Assistant
Attorney General, on brief), for appellee.
Janie E. Holman contends that the Workers' Compensation
Commission erred in finding that her application for permanent
partial disability benefits was barred by the applicable
limitations period contained in Code § 65.2-708(A)(i). 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.
Holman sustained an injury by accident on August 1, 1990,
when she fell while carrying trash. Southwestern Virginia
Mental Health Institute, her employer, accepted the claim as
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
compensable, and the parties signed a Memorandum of Agreement.
On December 27, 1990, the commission entered an award for
temporary total disability benefits commencing September 8,
1990. The parties filed a Supplemental Memorandum of Agreement
dated January 10, 1991, which resulted in an award for 17.5
weeks of permanent partial disability benefits for a ten percent
loss of use of Holman's left leg.
In a September 11, 1995 opinion, the commission awarded
Holman additional compensation commencing June 3, 1994, for
permanent partial impairment to her left leg, for a period of
26.25 weeks, and to her right leg for 35 weeks. Assuming
concurrent payment of permanent partial disability benefits
commencing June 3, 1994, the last date for which compensation
was paid to Holman was February 2, 1995. Assuming consecutive
payments, the last date for which compensation was paid to
Holman was August 5, 1995.
On October 9, 1998, Holman filed a change in condition
application, alleging entitlement to additional permanent
disability benefits. The commission ruled that Holman's
application was time-barred because she failed to file it within
the thirty-six month mandate of Code § 65.2-708(A)(i).
Code § 65.2-708(A)(i) plainly and unambiguously provides
that "thirty-six months from the last day for which compensation
was paid shall be allowed for the filing of claims payable under
§ 65.2-503." The following principle is well established:
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"[t]he 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 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)). Based upon the plain
language of the statute, the commission did not err in ruling
that the date for which compensation was last paid was either
February 2, 1995 or August 5, 1995. The statute does not
specify thirty-six months from the last day on which
compensation was paid. As the commission ruled, whether
February 2, 1995, or August 5, 1995, the thirty-six month
limitations period expired before Holman filed her application
on October 9, 1998. Because Holman filed her application after
the applicable limitations period had expired, the commission
did not err in dismissing the application.
For these reasons, we affirm the commission's decision.
Affirmed.
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