COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and McClanahan
Argued at Salem, Virginia
HELEN MARIE DAVIS
OPINION BY
v. Record No. 2744-09-3 CHIEF JUDGE WALTER S. FELTON, JR.
NOVEMBER 16, 2010
CITY OF LYNCHBURG WASTE MANAGEMENT AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Robert E. Evans for appellant.
Roberta A. Paluck (Frankl Miller & Webb, LLP, on brief), for
appellees.
Helen Marie Davis (“claimant”) appeals the Workers’ Compensation Commission
(“commission”) decision terminating its December 10, 2004 award of temporary partial
disability compensation benefits payable to her by City of Lynchburg Waste Management and
Liberty Mutual Insurance Company (collectively “employer”). Claimant contends the
commission erred in finding that employer’s June 30, 2008 application for a hearing to terminate
that award was timely filed pursuant to Code § 65.2-708 and Commission Rule 1.4. 1 For the
following reasons, we affirm the commission’s decision terminating claimant’s temporary partial
disability compensation benefits. 2
1
This appeal is governed by Rule 5A:20(c) as worded prior to its revision effective July
1, 2010, changing the requirement for setting forth “questions presented” to “assignments of
error.” Because each of claimant’s questions presented are interconnected, we address them
together.
2
Employer cross-appeals contending that the commission erred in finding that claimant
notified the commission of her change of address and in failing to suspend compensation benefits
pursuant to Code § 65.2-711. Because we conclude that the commission did not err in
I. BACKGROUND
Claimant suffered a compensable injury to both knees on January 29, 2001 while working
for employer. 3 On December 10, 2004, the commission awarded temporary partial disability
compensation benefits to claimant in the amount of $91.14 per week, beginning May 10, 2004
and continuing.
On May 23, 2006, claimant began full-time employment with Progress Printing earning a
wage in excess of her pre-injury wage. The following day claimant called employer and
disclosed her new employment and wage.
Employer continued to pay claimant compensation benefits through June 11, 2006.
Thereafter, without notifying the commission of its action, employer ceased payment of
compensation benefits to claimant under the outstanding award.
On June 14, 2006, employer sent a Termination of Wage Loss Award form to claimant’s
attorney to obtain claimant’s signature. When employer did not receive the form signed by
claimant, it made several unsuccessful attempts to contact claimant through her attorney. Laurel
Hendricks, a representative of employer’s workers’ compensation insurance carrier, testified that
claimant’s attorney initially told her that he had sent the form to claimant. However, claimant’s
attorney later told her that he never received the Termination of Wage Loss Award form. On
September 12, 2006, employer sent a second completed Termination of Wage Loss Award form
to claimant’s attorney to obtain claimant’s signature.
terminating claimant’s award of temporary partial disability compensation benefits, we do not
address the merits of employer’s cross-appeal.
3
On April 8, 2004, a deputy commissioner found that a de facto award existed with
regard to claimant’s knee injuries and awarded her temporary total disability compensation
benefits beginning January 29, 2001 and continuing. On May 10, 2004, claimant began selective
employment with a temporary employment agency.
-2-
Two days later, on September 14, 2006, the commission sent employer its standard letter
advising employer of claimant’s outstanding compensation award. The letter additionally stated
that “[i]f payments have ceased, an executed Termination of Wage Loss Award or an
Employer’s Application for Hearing must be filed to end the award.”
After employer made several additional unsuccessful attempts to contact claimant
through her attorney, claimant’s attorney sent a letter, dated October 25, 2006, to employer
stating that claimant had not reviewed or signed the termination form and that “[p]erhaps if
[employer] file[d] an application for hearing it will either get [claimant] to appear or will
otherwise resolve the matter.” 4
On March 14, 2008, the commission sent employer its standard letter advising employer
that claimant’s compensation award remained outstanding as of that date.
On June 11, 2008, claimant sent a letter to the commission asserting that, even though her
award of temporary partial disability compensation benefits continued in effect, employer had
wrongfully ceased making payments under that award. On June 13, 2008, the commission ordered
employer to either pay claimant the past due compensation benefits under the outstanding award,
plus a twenty percent penalty, or provide a sworn statement as to why it had not paid those benefits.
On June 30, 2008, employer issued its check to claimant for compensation benefits owed for
the period of June 12, 2006 through June 30, 2006. On the same date, employer filed an application
for hearing with the commission. It requested that claimant’s outstanding temporary partial
disability compensation award be terminated based on a change in condition, because claimant had
returned to full-time employment on May 23, 2006 earning a wage greater than her pre-injury
4
Hendricks testified at her deposition that employer also attempted to contact the
commission regarding the status of the outstanding award on two occasions in late December
2006, but inadvertently gave the commission the wrong commission file number.
-3-
wage. Employer’s application for a hearing stated that it had paid claimant compensation benefits
due under the award through June 30, 2006.
At the hearing before a deputy commissioner, claimant argued that employer failed to
comply with the time limitations of Code § 65.2-708 and Commission Rule 1.4. She asserted that
more than twenty-four months had elapsed since June 11, 2006, the last date for which she had been
paid compensation benefits under the outstanding award prior to employer’s filing its June 30, 2008
application for hearing. Employer contended that its payment of compensation benefits to claimant
on June 30, 2008 brought its payments under the award current through June 30, 2006, exactly
twenty-four months prior to filing its application for hearing, thereby satisfying the time
requirements of Code § 65.2-708.
The deputy commissioner found that employer’s application to terminate claimant’s
compensation benefits based on a change in condition was untimely. The deputy commissioner
concluded that Code § 65.2-708(A) provided a “definable, two-year limitations period” and that
an employer could not “extend that time under the pretext of paying additional disability
compensation benefits retroactively after the limitations period has run.” Employer appealed to
the full commission.
On review, the full commission unanimously reversed the decision of the deputy
commissioner, concluding that employer’s application for a hearing to terminate the outstanding
compensation award was timely filed. It found that at the time employer filed its application for
hearing on June 30, 2008, employer had paid and “claimant [had] received all of the temporary
partial disability compensation due under the open award for the twenty-four months prior to the
filing . . . as required by Code § 65.2-708(A).” The commission terminated its December 10, 2004
temporary partial disability compensation award “effective July 1, 2006, the date subsequent to
that for which the claimant was last paid benefits.”
-4-
II. ANALYSIS
Claimant contends the commission erred in finding that employer’s application for a
hearing to terminate her compensation benefits award was timely filed pursuant to Code
§ 65.2-708 and Commission Rule 1.4. She asserts that because employer waited more than two
years after the last date for which it paid compensation to request a hearing to terminate her
award, its June 30, 2008 application for hearing based on a change in condition was not timely
filed. She argues that the twenty-four-month limitation of Code § 65.2-708(A) expired on June
11, 2008, prior to employer’s June 30, 2008 hearing application, and that its June 30, 2008 lump
sum payment of compensation could not retroactively extend the limitations period under Code
§ 65.2-708.
Code § 65.2-708(A) provides, in pertinent part:
Upon its own motion or upon the application of any party in
interest, on the ground of a change in condition, the Commission
may review any award and on such review may make an award
ending, diminishing or increasing the compensation previously
awarded, subject to the maximum or minimum provided in this
title, and shall immediately send to the parties a copy of the
award. . . . No such review shall affect such award as regards any
moneys paid . . . . 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 . . . .
(Emphasis added).
Commission Rule 1.4 provides, in pertinent part, “No change in condition application
under [Code] § 65.2-708 . . . shall be accepted unless filed within two years from the date
compensation was last paid pursuant to an award.” Commission Rule 1.4(E).
In Diaz v. Wilderness Resort Association, 56 Va. App. 104, 115-16, 691 S.E.2d 517, 523
(2010) (second and third alterations in original) (quoting Gordon v. Ford Motor Co., 55 Va. App.
363, 369, 685 S.E.2d 880, 883 (2009) (en banc)), we held:
-5-
“[T]he twenty-four-month limitation of Code § 65.2-708(A) is not
a statute of limitations in the ordinary sense. It does not provide
that [a party] has twenty-four months from the date the change in
condition occurred to file. Rather subsection A provides that the
change in condition must occur within twenty-four months from
the date [for which] compensation was last paid.” It is also well
settled that the time provisions of Code § 65.2-708 are not
jurisdictional and may be waived.
Here, in finding that employer’s June 30, 2008 application for hearing to terminate the
compensation award was timely filed, the commission stated:
[T]he language of the statute is plain and unambiguous. Code
§ 65.2-708 states that “[n]o such review shall be made after
twenty-four months from the last day for which compensation was
last paid.” The phrase in the statute “for which” does not indicate
when the employer must pay compensation that is due to the
claimant. There is simply no requirement upon the employer to
file its application within twenty-four months from the last day on
which compensation was last paid.
As we recently held in Diaz:
Construed together, [Code § 65.2-708] and [Commission] Rule 1.4
require that where, as here, a claimant under an outstanding award
returns to work earning a wage at or above her pre-injury wage and
the employer unilaterally ceases making payments under the
award, if the employer waits more than two years after the last
date for which it paid compensation to request a hearing to
terminate the award, it must pay “compensation” as defined by the
Act through a date no less than two years prior to the date on
which it files its application for hearing.
56 Va. App. at 118, 691 S.E.2d at 524 (emphasis added). “Code § 65.2-708 provides [that] an
employer is entitled to file its application for hearing without bringing its compensation
payments current to closer than two years to the date of filing.” Id. at 122-23, 691 S.E.2d at 526.
On June 30, 2008, employer made a lump sum payment to claimant bringing its
compensation payments, due under the award, current to two years prior to the date of filing its
application for hearing. Accordingly, we conclude the commission did not err in finding that
employer’s application for a hearing to terminate claimant’s outstanding compensation award
-6-
was timely filed, and affirm the commission’s decision to terminate its December 10, 2004
temporary partial disability compensation award effective July 1, 2006.
Affirmed.
-7-