Graham v. Peoples Life Insurance

Barrow, J., with whom Benton, J.,

joins, dissenting.

In my opinion the Industrial Commission’s Rule 13(B) exceeds the commission’s rulemaking authority because it conflicts with Code § 65.1-99, a provision of the Virginia Workers’ Compensation Act. Therefore, I would reverse the commission’s award denying compensation in reliance on Rule 13(B).

Although the commission may make rules implementing the provisions of the Virginia Workers’ Compensation Act, it may not do so in a manner inconsistent with the Act. Code § 65.1-18. Even though the commission has authority to adopt other provisions contained in Rule 13, see Sergent Electric Co. v. Woodall, 228 Va. 419, 424-25, 323 S.E.2d 102, 105 (1984); Manchester Board & Paper Co. v. Parker, 201 Va. 328, 331-32, 111 S.E.2d 453, 456 (1959), it does not have authority to adopt the fifty day limitation in Rule 13(B). This limitation conflicts with Code § 65.1-99, which allows for recovery of compensation for disability occurring within twenty-four months after the last day for which compensation has been paid.

*74Code § 65.1-99 prohibits a review of an application for a change of condition “after twenty-four months from the last day for which compensation was paid.” This language provides both a deadline for reviewing an application for a change of condition and a limitation on what disability may be compensated. This interpretation is required for two reasons. First, it is necessary to harmonize the statute with other provisions of the Workers’ Compensation Act. Second, it is required because, if the language of the statute provides only a deadline for when a review may be conducted, Rule 13(B) conflicts with the early interpretation of this statute by our Supreme Court.

Only by interpreting the twenty-four month limitation as a limitation on retroactivity of compensation can Code § 65.1-99 be harmonized with other provisions of the Workers’ Compensation Act. The Act directs an employer to pay compensation to an employee for incapacity resulting from a compensable injury. Code §§ 65.1-54 and 65.1-55. This requirement applies to an incapacity existing at the time of an original claim as well as one occurring upon a change of condition. Id. Both necessarily involve a retroactive award of compensation since neither the initial claim nor an application for a change of condition can be made until after the requisite disability has occurred. The General Assembly has made no exception to the requirement that compensation be paid for disability in either case. Id.

The General Assembly has deliberately imposed other explicit time limitations. The first seven calendar days of incapacity are not compensable, except when an incapacity persists for more than three weeks, Code § 65.1-62; a claim is time barred if not filed within two years of an accident, Code § 65.1-87; and no compensation is payable unless written notice is given within thirty days of an accident, Code § 65.1-85. The only time limitation the legislature has chosen to impose on the payment of compensation for a disability arising from a change in condition is the limitation-implicit in the constraint contained in Code § 65.1-99 on when a review may be conducted.

Thus, the Workers’ Compensation Act requires the payment of compensation for disability arising both from an initial claim and from a change of condition; it imposes certain other explicit time limitations; and it only limits the payment of compensation for prior disability arising from a change of condition to the twenty-*75four months during which a review of an application for a change of condition may be held. Therefore, a consistent and holistic view of the Workers’ Compensation Act compels the conclusion that it requires the payment of compensation for disability arising from a change in condition, subject only to the twenty-four month limitation on when a review of an application may be held. The fifty day limitation thus imposed by the commission’s Rule 13(B) conflicts with this interpretation of Code § 65.1-99.

If the twenty-four month limitation in Code § 65.1-99 is not interpreted in this way, that is, if it is construed only as a limitation on when an application may be reviewed, then Code § 65.1-99, as construed by our Supreme Court, allows no retroactive award of compensation. The Supreme Court has held that a retroactive award for disability caused by a change of condition is “in derrogation of the spirit and intendment of the statute.” Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 477, 161 S.E. 902, 903 (1932). The Court reached this conclusion in interpreting language contained in the predecessor to Code § 65.1-99 prior to the addition of the prohibition of a review after twenty-four months from the last day for which compensation is paid. Id. Consequently, if the twenty-four month limitation is construed to only limit when an application may be reviewed, Rule 13(B) conflicts with Code § 65.1-99 by allowing any retroactivity of an award for compensation.

In Bristol Door, the Supreme Court observed that prior to the filing of an application for a change of condition an employer had no means of knowing that a change had occurred and was deprived of the ability to provide medical care to rehabilitate the injured employee. Bristol Door, 157 Va. at 478, 161 S.E. at 903. However, this was not the only reason stated for its decision. The foremost reason for its opinion was the conclusion that a retroactive award conflicted with the spirit and intent of the statute. The Court specifically pointed out that an employer could not retroactively affect “monies paid,” and, therefore, an employee seeking recognition of a change in condition should be subject to a similar limitation and not be permitted to retroactively receive an increase in an award. Id. at 477, 161 S.E. at 903.

Therefore, the Supreme Court’s conclusion that Code § 65.1-99 prohibits a retroactive award cannot be disregarded simply on the basis that the commission’s rule contemplates that an employer *76would have time to rehabilitate a person within fifty (now ninety) days. Such a theory not only fails to address the other concerns expressed by the Supreme Court in Bristol Door, but appears to recognize an- elastic yardstick with no factual basis. The commission’s allowance of retroactivity has gradually expanded from an initial fourteen days to the present ninety days. If this relaxation of the severity of the ruling in Bristol Door is based on the length of time in which rehabilitation could not occur, it runs contrary to the advancements in medical science during the intervening years.

More importantly, it makes the Industrial Commission, rather than the Supreme Court, the final arbiter of the intent of the legislature. Since the Supreme Court concluded in Bristol Door that the legislature had not authorized the retroactive award of compensation for changes in condition, only the legislature can make this change.

This, in my opinion, is exactly what the legislature did when it chose to amend Code § 65.1-99 to prohibit review made more than twenty-four months after the date of the last payment of compensation. Less than two months after the decision in Bristol Door was announced, the General Assembly amended the predecessor to Code § 65.1-99 by adding the prohibition on when review could be made.6 The General Assembly’s amendment addressed the Supreme Court’s concern about an employer’s opportunity to provide rehabilitation, not by denying a retroactive award of compensation, but by allowing a shorter period of time in which to file a claim. It also addressed the concern expressed in Bristol Door that a review could not affect “monies paid,” not by totally eliminating any retroactivity of an award, but by limiting its retroactivity.

In summary, since the time limitation in Rule 13(B) conflicts with the provisions of Code § 65.1-99, either as interpreted by the *77Supreme Court in Bristol Door or as, in my opinion, they should be interpreted after the 1932 amendment, the commission had no authority to adopt Rule 13(B) which purports to limit this employee’s compensation. Furthermore, since, in my opinion, Code § 65.1-99 now allows a retroactive award of compensation for disability occurring within twenty-four months after the last date compensation was paid, I would conclude that the employee is entitled to an award for compensation for his disability and would reverse and remand this matter for further proceedings.

§ 1887 (47) of the Code of 1930 [with 1932 Amendments shown] provided: Upon its own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the industrial 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 act, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any monies paid but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this act. 1932 Va. Acts c. 89.