COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued by teleconference
DONALD R. WELLS
OPINION BY
v. Record No. 0848-99-1 JUDGE ROSEMARIE ANNUNZIATA
JULY 3, 2001
CHESAPEAKE REDEVELOPMENT & HOUSING AUTHORITY
AND INSURANCE COMPANY OF NORTH AMERICA
ON REMAND FROM THE SUPREME COURT OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Karen M. Rye (Kenneth J. Coughlan; Law Office
of Karen M. Rye, on brief), for appellant.
James G. Muncie, Jr. (Ingrid E. Olson; Law
Offices of Harold A. MacLaughlin, on brief),
for appellees.
In this worker's compensation case, we held that the
timeliness of appellant's claim for temporary partial disability
benefits was barred by the principle of res judicata because the
appellant, Donald R. Wells, did not appeal the decision of the
Workers' Compensation Commission with regard to that issue.
Wells v. Chesapeake Redevelopment & Hous. Auth., Record No.
0848-99-1 (Va. Ct. App. Jan. 11, 2000). Wells appealed our
ruling to the Virginia Supreme Court, which reversed our
judgment and ruled that we erred in failing to consider the
merits of Wells's claim. The Supreme Court remanded the case to
this Court for consideration of the question presented on its
merits. We now hold that Wells's claim for temporary partial
disability benefits was timely filed under Code § 65.2-708 and
that the full commission erred in failing to remand the claim
for consideration on its merits. Accordingly, we reverse the
portion of the commission's decision that found Wells's claim
for temporary partial disability benefits was time-barred and
remand the claim to the commission for determination on its
merits.
BACKGROUND
Wells sustained a compensable injury to his right elbow/arm
on December 6, 1989. He had been employed as a maintenance
mechanic by the Chesapeake Redevelopment & Housing Authority
("Chesapeake") for approximately six years when the accident
occurred. Following the accident, Chesapeake accepted the claim
as compensable, and the Workers' Compensation Commission entered
an award for temporary total disability benefits beginning
December 6, 1989. The award for temporary total disability
benefits was terminated on July 3, 1990, when Wells returned to
work.
The full commission found that Wells did "selective work"
for Chesapeake from July 3, 1990 until May 10, 1991, returned to
work in June 1991, and stayed until he had surgery in July 1993.
Wells did not return to work after his July 1993 surgery and was
terminated on December 3, 1993.
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The first claim in this matter was filed by Wells's prior
counsel on August 16, 1993, alleging that Wells had become
totally disabled as of July 21, 1993. Four days later, the
commission sent a letter to counsel notifying her that the claim
had been rejected because it was time-barred. On January 27,
1994, Wells's current counsel sent a letter to the commission
requesting "all workers' compensation benefits to which he may
be entitled," specifically, those falling under a change of
condition and permanency.
On March 4, 1994, the commission sent a letter to counsel
indicating that it was rejecting the claim for the same reasons
that the August 16, 1993 claim was rejected. Wells responded to
the commission on March 10, 1994 by sending an amendment that
indicated he intended to rely on Code §§ 65.2-520 and
65.2-708(C) to argue that the claim was not barred by the
statute of limitations. 1
1
Code § 65.2-520 provides:
Voluntary payment by employer. Any payments
made by the employer to the injured employee
during the period of his disability, or to
his dependents, which by the terms of this
title were not due and payable when made,
may, subject to the approval of the
Commission, be deducted from the amount to
be paid as compensation . . . .
Code § 65.2-708(C) provides:
All wages paid, for a period not exceeding
twenty-four consecutive months, to an
employee (i) who is physically unable to
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On August 23, 1994, Wells sent the commission a medical
report from Dr. Thomas Bergfield, dated December 9, 1993, to
support his January 27, 1994 claim for permanency benefits. At
the same time, Wells amended his change of condition claim to
include temporary total disability from July 20, 1993 and
continuing. On June 10, 1996, Wells once more amended his
change of condition claim to include temporary partial
disability benefits from May 31, 1994 and continuing.
On February 26, 1997, an evidentiary hearing was held
before the deputy commissioner, who found that the last date for
which Wells had received benefits was July 2, 1990.
Accordingly, the deputy commissioner held that all three claims
in the application were time-barred.
The decision was appealed to the full commission, which
found, in an opinion dated March 10, 1999, that, under Code
§ 65.2-708(A), Wells had two years from May 10, 1991, the date
of last compensation under Wells's initial award, to file an
application for a change in condition based on his alleged
temporary total and temporary partial disability. 2 Because Wells
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.
2
The commission premised its conclusion, in part, on Code
§ 65.2-708(C), finding that the provision extended the statute
of limitations during the time Wells was working a selective
employment position and receiving full wages, from July 3, 1990
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filed both claims after May 10, 1993, the full commission
affirmed the deputy commissioner's decision that the claims for
temporary total and temporary partial disability were
time-barred. However, the commission found that Wells had three
years from May 10, 1991, under Code § 65.2-708(A), to file a
change of condition application based on his alleged permanent
partial disability. The commission found that the August 24,
1994 amendment requesting permanent partial disability benefits
related back to Wells's January 27, 1994 change of condition
application. Because the January 27, 1994 application was filed
before May 10, 1994, the full commission reversed the deputy
commissioner's finding that Wells's claim for permanent partial
disability benefits was time-barred and remanded the case for a
decision on that issue.
Wells appealed the full commission's decision to this
Court, contending that the commission erred in not also
remanding his claim for temporary partial disability benefits
for consideration by the deputy commissioner.
ANALYSIS
Wells contends that when the commission determined that his
permanency claim was not time-barred and remanded the claim to
the deputy commissioner for consideration on its merits, the
until May 10, 1991. Beginning May 11, 1991, Wells was totally
disabled and, therefore, no longer "consecutively" working in
selective employment.
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commission should also have remanded Wells's claim for temporary
partial disability (TPD) benefits. We agree that the commission
erred in not remanding Wells's claim for TPD benefits.
Under Code § 65.2-708(A), the period during which a
temporary partial disability claim based on a change of
condition must be filed commences with the last day compensation
is paid pursuant to an award for benefits. Code § 65.2-708(A)
provides:
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 . . . . 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 [which authorizes an award
for permanent disability benefits]. . . .
When the commission remanded the permanency claim, the
status of the claim, before it was erroneously dismissed by the
deputy commissioner, was restored. Thus, the period of time
during which any change of condition claim could be filed was
necessarily reinstated, conditioned only upon the receipt of an
award for permanent benefits. See Code § 65.2-708(A). Any
claim based on a change of condition which arose after the
period for which permanent benefits were awarded, but within the
new limitations period, would, therefore, not be time-barred.
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Wells's claim for permanent partial disability benefits
arose on December 9, 1993, the date of a report filed by Wells's
treating physician, Dr. Bergfield, in which he determined that
Wells had suffered a permanent 26% impairment of his right arm.
His claim based on permanency was filed on January 27, 1994. On
remand, the deputy commissioner found Wells had established his
claim for permanent partial disability benefits, based on Dr.
Bergfield's report. 3 The deputy commissioner awarded Wells
permanent disability benefits for a period beginning December 9,
1993, and continuing for 52 weeks, to December 8, 1994. 4
Under Code § 65.2-708(A), Wells had two years from
December 8, 1994, until December 8, 1996, within which to file a
new claim based on a change in condition. Wells's claim for
temporary partial disability benefits based on a change of
condition arose on May 31, 1994, after his claim for permanency
benefits. He filed his claim for TPD benefits on June 10, 1996.
This claim, therefore, was timely.
We find no merit in Chesapeake's contention that remanding
Wells's claim TPD benefits would constitute an improper
3
The deputy commissioner also found that despite further
medical treatment, as of July 25, 1994, Well's disability rating
had not changed.
4
The date the award was made, March 30, 1999, is not
relevant to the analysis. The only relevant date is the last
date for which compensation was due. Code § 65.2-708(A).
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"revival" of a time-barred claim. In advancing this contention,
Chesapeake relies on the finding by the commission that the
claim was time-barred. However, the commission's decision
improperly related the claim for TPD to Wells's initial award
made in 1991 and failed to consider that the TPD claim arose, in
fact, subsequent to Wells's claim for permanent disability
benefits. Viewed from the perspective of the status quo ante,
but for the erroneous dismissal of the permanency claim by the
deputy commissioner, and the failure to properly relate the TPD
claim to the claim for permanency disability benefits, the claim
for TPD would have retained viability before the deputy
commissioner.
In sum, because we find the commission erred in finding
Wells's claim for temporary partial disability benefits to be
time-barred, we reverse that portion of the commission's
decision and remand Wells's claim for TPD benefits based on a
change in condition to the commission for determination on its
merits.
Reversed and remanded.
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