COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED
Argued at Alexandria, Virginia
TARGET CORPORATION AND SEDGWICK
CLAIMS MANAGEMENT SERVICES
MEMORANDUM OPINION ∗ BY
v. Record No. 0576-12-4 JUDGE WILLIAM G. PETTY
JANUARY 8, 2013
WILMA VELASQUEZ
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Tenley Carroll Seli (Billy & Seli, P.C., on brief), for appellants.
Manuel R. Geraldo (Robinson & Geraldo, on brief), for appellee.
Target Corporation and Sedgwick Claims Management Services (hereinafter referred to
collectively as “employer”) appeal a decision of the Workers’ Compensation Commission
awarding claimant, Wilma Velasquez, permanent partial disability benefits for the five percent
loss of use of her right leg. Employer argues that the commission lacked jurisdiction to award
permanent partial disability benefits to Velasquez because she failed to perfect her claim by
filing evidence of permanent impairment to a ratable member within the thirty-six month period
prescribed by Code § 65.2-708(B). For the reasons expressed below, we disagree. Accordingly,
we affirm the commission’s decision.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. “On appeal from a decision of the Workers’ Compensation Commission, the
evidence and all reasonable inferences that may be drawn from that evidence are viewed in the
light most favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45
Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).
II.
Employer argues that under Code § 65.2-708(B), a claimant must not only file a claim for
permanent partial disability benefits, but must also provide evidence of permanent impairment,
within thirty-six months from the date of the accident. We disagree.
Code § 65.2-708(A) provides that the commission may review and modify a previously
entered award if a claimant experiences a change in condition. It further provides:
No 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, except: (i) 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 section addressing permanent
partial and permanent total loss and disfigurement] . . . .
Code § 65.2-708(A). Code § 65.2-708(B) then provides: “In those cases where no
compensation has been paid, the Commission may make an award under § 65.2-503 within
thirty-six months from the date of the accident.”
Under Code § 65.2-708, a claimant must “assert, within the limitation period, the
existence of a claim growing out of a compensable injury by accident.” Hungerford Mech. Corp.
v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991) (construing what is now Code
§ 65.2-601). Of course, to receive an award under Code § 65.2-708(B), a claimant must also
prove that his disability existed within the thirty-six month limitation period as well. Cf. Sw. Va.
Tire, Inc. v. Bryant, 31 Va. App. 655, 660, 525 S.E.2d 563, 566 (2000) (noting that under Code
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§ 65.2-708(A), the change in condition must have occurred within the applicable limitation
period). Ultimately, “[i]n order to recover, [a claimant has] the burden of establishing by a
preponderance of the evidence the existence of a disability which was the consequence of the
injury by accident.” Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215.
However, this Court has already rejected the contention that a claimant must provide
medical evidence establishing a permanent disability within the statutory limitation period.
Johnson v. Smith, 16 Va. App. 167, 428 S.E.2d 508 (1993) (construing Code § 65.2-708(A)). In
Johnson, the claimant was injured by a compensable accident on December 23, 1985, and
received payment of compensation for temporary total work incapacity from the date of the
accident until July 6, 1986. Id. at 168, 428 S.E.2d at 509. On February 17, 1989, within the
applicable thirty-six month limitation period under Code § 65.2-708(A), the claimant filed a
change-in-condition application seeking permanent partial disability payments for the loss of use
of his right hand. Id. However, the last time claimant had seen his doctor was on July 3, 1986,
at which time his doctor had released him to return to work the following week. Id. The
claimant did not visit his doctor again until July 30, 1991, over five years after his last visit to the
doctor and over two years after the applicable limitation period had expired. Id. The doctor did
not provide a disability rating for the claimant’s right hand until September 9, 1991. Id.
The commission in Johnson “concluded that the permanent partial injury must be
established by evidence within the thirty-six month limitation period and that there was no such
evidence in this case.” Id. at 169, 428 S.E.2d at 509-10. This Court, however, reversed the
commission’s decision. This Court held that “the Hungerford interpretation of Code § 65.2-601
. . . also applies in this case to Code § 65.2-708 concerning the statute of limitations for review of
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an award on a change of condition.” Id. at 169, 428 S.E.2d at 510. As the Court had explained
in Hungerford:
“At the time [the claimant] filed his application for
benefits, he had suffered a compensable injury by accident. His
application plainly specified that he was seeking benefits for
permanent partial disability. This disability was present and
existing when the application was filed; therefore the application
did not anticipate a future disability and did give the employer
sufficient notice of the claim. [The claimant’s] filing, thus,
fulfilled the intent of the Act—that the injured employee assert,
within the limitation period, the existence of a claim growing out
of a compensable injury by accident. In order to recover, [the
claimant] had the burden of establishing by a preponderance of the
evidence the existence of a disability which was the consequence
of the injury by accident.”
Id. at 169-70, 428 S.E.2d at 510 (quoting Hungerford Mech. Corp., 11 Va. App. at 678, 401
S.E.2d at 215).
The Court in Johnson noted that the uncontradicted evidence demonstrated that the
claimant did indeed have a permanent disability that existed at the time he filed his
change-in-condition application, within the thirty-six month limitation period. Id. at 170, 428
S.E.2d at 510. Importantly, the Court reasoned that despite the fact the claimant had not sought a
diagnosis from his doctor until after the limitation period had expired, “this fact [did] not
preclude a finding that a disability existed during the thirty-six month period.” Id. Thus, the
Court rejected the notion that evidence establishing a permanent disability must be presented
within the limitation period under Code § 65.2-708.
Johnson establishes that as long as a claimant files an application or claim under Code
§ 65.2-708 within the applicable limitation period, evidence supporting that claim may be
presented after the limitation period has expired. The claimant simply has to prove that he has a
permanent disability that existed within the limitation period and that was caused by a
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compensable accident. See Sw. Va. Tire, Inc., 31 Va. App. at 660-61, 525 S.E.2d at 566 (“We
have . . . held that a claimant is not required by Code § 65.2-708(A) to produce the evidence
prior to the expiration of the twenty-four month limitation, so long as the application alleged that
a change in condition existed within the time of the filing.” (citing Johnson, 16 Va. App. at
169-70, 428 S.E.2d at 510; Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215));
Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215 (“The timely filing of evidence
in accordance with the commission’s rules and the facts established by that evidence are the
operative considerations in determining whether a claimant is entitled to compensation
benefits.”). Indeed, “[t]he notion that the date of a medical report or even a doctor’s examination
must be within [the] statutory period in order to prove the date of onset of disability is not
reasonable.” Sw. Va. Tire, Inc., 31 Va. App. at 661, 525 S.E.2d at 566.
Here, Velasquez suffered an accident at work on October 6, 2004. She filed a claim for
benefits with the commission on September 6, 2005. In her claim, she indicated that she was
seeking compensation for permanent disability and payment of lifetime medical costs for her
injury. Upon employer’s agreement to pay Velasquez’s medical bills, the commission entered an
award for lifetime medical benefits. However, employer stated that it needed an evaluation of
Velasquez’s claimed permanent partial disability before it would agree to pay permanent partial
disability benefits. Velasquez continued intermittently seeing doctors regarding her right leg
until, on April 14, 2008, a specialist she had been seeing stated that she had reached maximum
medical improvement, rated her permanent partial disability in her right leg at five percent, and
affirmed that her condition was causally related to the injury she sustained on October 6, 2004.
Thus, Velasquez filed a claim for permanent disability benefits well within the thirty-six
month time period prescribed by Code § 65.2-708(B). The fact that she did not obtain medical
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evidence supporting this claim until after the thirty-six month period had passed does not bar her
claim. Velasquez presented credible evidence before the commission establishing “the existence
of a disability which was the consequence of the injury by accident” and which “‘was present
and existing when the application was filed.’” Hungerford Mech. Corp., 11 Va. App. at 678, 401
S.E.2d at 215 (quoting Cont’l Forest Indus. v. Wallace, 1 Va. App. 72, 74, 334 S.E.2d 149, 150
(1985)). Her “filing . . . fulfilled the intent of [Code § 65.2-708]—that the injured employee
assert, within the limitation period, the existence of a claim growing out of a compensable injury
by accident.” Id.
Therefore, we hold that the commission did not err in awarding permanent partial
disability benefits to Velasquez.
III.
For the foregoing reasons, we affirm the commission’s decision.
Affirmed.
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